TSANG YIN YUK v. NINI MATERNITY FASHION CO. LTD.

HCPI 981/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 981 OF 2004

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R E A S O N S   F O R   J U D G M E N T

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1.  The plaintiff, a 46 year old female, was employed by the defendant to run a shop operated by it in Kowloon City Plaza.  It is not in dispute that she was working there on 11 February 2002 when she suffered, what one of the orthopaedic surgeons who examined her categorised as a “relatively minor sprain”, to her back. 

2.  It is not in dispute that she had previously injured her lower back in 1998.  The plaintiff does not contend that general bulging of the intervertebral discs at L4/5 and L5/S1 level observed from MRI scans performed after the present occurrence was occasioned by the present events: on the totality of the medical evidence this was pre-existing degenerative change.

3.  Just how she sustained the injury on 11 February 2002 is vigorously disputed:  she has ventured a number of versions as to how it occurred. 

4.  The plaintiff was the sole witness to testify as to the occurrence.  She bears the onus to satisfy me, on a balance of probabilities, that the defendant failed to take reasonable care:  I follow the formulation by Cheung J in Lai Wah Wai v Castco Testing Centre Ltd. [1996] 2 HKC 44 at p. 48F-I:

“The standard of an employer’s duty towards his employee is to see that reasonable care is taken; the scope of that duty extends to the provisions of safe fellow employees, safe equipment, safe place of work and access to it and a safe system of work.  (Wilsons and Clyde coal Co Ltd v English [1938] AC 57).  A system of work is the term used to describe:

(1)     the organization of the work;

(2)     the way in which it is intended the work shall be carried out;

(3)     the giving of adequate instructions (especially to inexperienced workers);

(4)     the sequence of events;

(5)     the taking of precautions for the safety of the workers and at what stage;

(6)     the number of such persons required to do the job;

(7)     the part to be taken by each of the various persons employed;

(8)     and the moment at which they shall perform their respective tasks.”

(Para.10-59 Charlesworth & Percey on Negligence, 8th ed.)

5.  These were small premises from which the defendant traded in maternity garments.  A plan of the premises shows their general layout.  There was a small storage area situated behind a pillar, inside a cupboard.  I accept that the floor-to-ceiling height there did not exceed eight feet.  The space was fitted with three shelves.  The plaintiff says that the shelves were spaced more or less equidistantly resulting in the topmost shelf being six feet above floor level.  A witness for the defendant says that whilst the lowest shelf was some two feet above the floor, the two shelves above it were each some one and a half feet higher up, resulting in the top shelf being some five feet above the floor.  In my judgment whether the top shelf was five or six feet high is not relevant to the outcome for, given that the plaintiff is only just about five feet tall, in either instance she would have had to stand on something to avoid having to work at or above head level.

6.  It is common cause that access was required to the top shelf for it was there that stock items were stored in plastic bags.  It was the plaintiff’s evidence, at trial, that she had used a small stool some eighteen inches high to reach the items on the top shelf.  She had been doing so throughout the months she had worked in that shop.  There is complaint that the defendant failed in its duty to her by not providing a ladder for her use:  no matter which of her versions as to how the injury occurred one considers, there is no evidence that a ladder would have prevented the injury.

7.  It was the plaintiff's evidence at trial, substantially, that on the day of the injury she had used the small stool in order to get access to the top shelf:  the shop had been busy, it being just before Lunar New Year: she had been in a hurry to repack clothing into the plastic bags and replace those bags on the top shelf so as not to inconvenience customers in the shop.  I accept that figures showing the turnover for the day (pp. 353 to 355) show that it was higher than on many other days during this same month but at the same time was less than on others whilst more or less on a par with turnover on other days.

8.  She said that she had stood on the stool then lifted a bag containing clothing so as to replace it on the top shelf.  Her evidence varied as to the stage at which she suddenly felt pain but, in the end, she appeared to settle on it being once the lifting was complete and as she was pushing the bag onto the shelf itself rather than whilst she was in the process of lifting it to the shelf - as she finally described it, when she was applying force to push the bag into the shelf which was some four feet deep.  She went on to say that she had then telephoned a senior employee of the defendant and reported the injury to her:  that she did so and that she was told to consult a bonesetter after work that day is common cause.

9.  However there was clear evidence from the first witness called for the defendant, the employee to whom the plaintiff had made the report, that when the plaintiff telephoned her the plaintiff had said that she had hurt her waist or back by throwing a bag of clothes up.  Plainly this is in marked contrast to her oral evidence.  When she was cross-examined on this issue she testified that she had asked the plaintiff why the bag had been thrown up to which the plaintiff had replied that she had taken it down to look for clothes for a customer.  In further cross-examination the witness said that the plaintiff had told her that she had “got hurt when she put the bag back” by throwing it up:  the plaintiff had said that she had put the bag back and it was when she was throwing it up that she had been hurt.  The witness went on to say that the plaintiff had said she was in a hurry at the time - which accords with what the plaintiff said in evidence.

10.  It is of significance that when the plaintiff was cross-examined the assertion that she had told this witness that the injury had occurred whilst she was trying to throw the bag of clothes onto the shelf was put to her in very specific terms.  Her initial response to that, unequivocally, was to confirm that this indeed was what she had told the first defence witness.  However, she then changed her evidence denying that she had said this at all and claiming that it was simply the “allegation” of the witness.

11.  The second witness for the defendant, another of its employees, testified that she had completed a form required under the Employees Compensation Ordinance which bears a description of the accident saying, inter alia, “... she sprained her waist when she got the clothes on the upper storey of the shelf as requested by a customer.”  (p. 328).  It had become necessary for the witness to speak to the plaintiff herself about the details of how she was injured.  It is clear from her evidence that she spoke to the plaintiff, completed that form and had it signed by her superior all on the same day, apparently 26 February 2002, some 15 days after the event.  It was her evidence that when she spoke to the plaintiff the plaintiff had told her that she had been hurt when she “... took clothing from the shelves for customers.  It should be the case that she took clothing down.”  although she accepted that she was not sure whether that was in fact when the injury had occurred.  She had not cross-checked the plaintiff's report to her with what she had told the first defence witness.  This is another version different from the Plaintiff’s present case.

12.  The evidence of this witness as it appeared in her witness statement, that the plaintiff had told her that she had injured her waist when she was trying to get clothes for a client, was put to the plaintiff during her evidence in chief.  Her clear response was “I did tell her this”.  She then sought to qualify this answer by saying that what she meant was that she had taken clothes down but was in the process of putting them back when she was injured. 

13.  This matter was revisited in cross-examination when the evidence of the second defence witness was again put to her in specific terms.  On this occasion her response was to say that she “did not understand” and to add that she had never said that she had been injured when taking down items.  When asked about her acceptance of the correctness of the statement during cross-examination her response was that she could not recall whether she had been asked about this matter during her evidence in chief and that she had “not read” this statement.  When pressed she said that she had “not seriously read” this statement and that although it had been read to her she “did not understand”.

14.  I accept the evidence of the two defence witnesses which demonstrates that the plaintiff, even at an early stage, had been giving materially different versions of the circumstances in which the injury was sustained.

15.  In June/July 2004, by the time the matter was proceeding towards litigation and the plaintiff was being examined by orthopaedic surgeons her version appears to have settled down to being substantially that she was standing on a stool pushing items up to a shelf or into a rack when the injury occurred (pp. 159 and 191 respectively).  During the course of cross-examination she asserted that she could “recall precisely now” what she had told Dr Tsoi at the time of her examination but went on to assert that she has problems with her memory which is why she is receiving psychiatric treatment. 

16.  In June 2005 the plaintiff was examined by two psychiatrists appointed jointly by the parties.  She told them, according to their report (p. 227) that she was “... standing on a stool lifting a bag of clothes to put on an overhead shelf...” when she heard a cracking sound and experienced pain.

17.  The plaintiff was pressed in cross-examination about which of the various versions she espoused was correct.  She was strikingly evasive.  At first she said that she felt painful when she had almost reached the shelf and then when she applied force to push the bag she felt more painful.  She changed this to say that when she was simply holding the bag of clothes she had already felt pain.  When this second, apparently different version, was invited to her attention she flatly denied having given the earlier evidence.

18.  Over and above her unreliability in regard specifically to the circumstances of the occurrence of the injury, there are many unsatisfactory aspects to the plaintiff’s evidence.  One example is the issue of her height.  Although the various heights she attributes to herself at different stages of the papers and during the trial did not vary by more than several inches, it was her evasiveness when being cross-examined on this issue that demonstrated her reluctance to answer even the simplest question in a forthright manner and her readiness to make up what she plainly regarded as an expedient answer.

19.  Another example is the type of bags used in the premises in which the clothing was stored.  Much attention was paid to the size of the bags and the potential weight of them when filled with clothing.  If, although there is no evidence to support such a contention, it were the case that the bag that the plaintiff was manipulating was heavy because it had been overstuffed with clothing, that would not found liability on the part of the defendant as it would have been the plaintiff, herself, who had overstuffed the bag contrary to instruction given to her as to how to pack the bags.  Her explanation as to the way in which goods were placed in the bags was illogical: insofar as it is necessary, I accept the evidence of the first defence witness in this connection.

20.  The issue of the bags, in reality, goes to the question of the plaintiff's credibility.  Although again her evidence was contradictory and confused, she apparently purchased two different sizes of bags, one which she says in fact was used in the shop and one which she says is the size the defendant described as being used in shop.  The evidence of the first defence witness is quite clear as to the size of bag which was used, which was appreciably smaller than that contended for by the plaintiff.  I accept the evidence of the defence witness.  I am satisfied that this evidence of the plaintiff is yet another attempt to bolster her case.

21.  A schedule was prepared by the defendant which summarised the numerous sick leave certificates which have been obtained by the plaintiff since the injury.  It was suggested to her that she had moved from practitioner to practitioner when she had been told that no further sick leave certificates would be issued.  Her response to this suggestion was that this had not been said to her.  She then contradicted that response accepting that indeed it had been said to her but in the context that there was no purpose in issuing any further sick leave certificates because her employees compensation action had already terminated.  Her explanation for not attending Kwong Wah Hospital after July 2005 is fanciful.

22.  Then there is the surveillance video tape.  It was the plaintiff's contention that she is unable to walk any significant distance.  A viewing of the videotape which records her activities on two days in October 2004 demonstrates that to be plainly untruthful.  She claimed that she was unable to descend or ascend stairs without the necessity of pausing:  the descent of stairs is contradicted by the evidence of the videotape.  On her own case, the plaintiff has taken no exercise since the event:  she is not of slender build:  her ascent of stairs does not appear, on the videotape, to exhibit any significant difficulty associated with her back.  The tape demonstrates that, although her gait may be ponderous, when unaware of being observed the plaintiff has no obvious difficulty in going about her normal daily business.

23.  Her credibility is further called into serious question in a number of the medical reports which describe “malingering” (p. 314), deliberate underperformance in tests (p. 206), exaggeration of disabilities (p. 206) and symptoms which are inconsistent with clinical findings.

24.  In the joint medical report prepared by two psychiatrists in June 2005 there is the comment by Dr Singer, appointed by the defendant, that “The behaviour in the videotape is grossly discrepant with that on examination” (p. 252 to 256) while Dr Ho, appointed by the plaintiff, observes she “... has likely exaggerated somewhat during the tests on her intellectual functioning.  The results are not quite explicable and considered to be incongruous with her educational level, previous functioning or the degree of her psychiatric illness.  Her credibility is undermined in relation to such suggestion of exaggeration.” (p. 281).

25.  I do not doubt that the plaintiff in fact sustained a mild sprain to her back on 11 February 2002.  I do not doubt that, for a short period, she would have suffered from a level of discomfort as a result.  I accept the evidence of Dr Singer that at the time she was examined, the plaintiff was suffering from some mild depressive symptoms.

26.  The plaintiff was not a credible or reliable witness.  I am satisfied on all the evidence before me and having seen the plaintiff in court that she has deliberately sought to mislead in regard not only to the nature and extent of her condition but also as to the manner in which the injury occurred.  As a consequence  I cannot be satisfied, even on a balance of probabilities, as to how this injury was sustained, particularly whether it was even sustained during any of the various circumstances outlined by the plaintiff.

27.  The doctrine of res ipsa loquitur is applicable only if the factual situation is such that the injury would not have occurred but for someone’s negligence.  I consider that the maxim has no application to the facts of the present case.  I cannot see how any inference may be drawn that the injury would not have occurred but for some negligence on the part of the defendant.  There is no presumption that an employer is negligent whenever his employee is injured in the course of his employment.

28.  It is worth repeating the observation in Wong Tai Wai, David v Hong Kong Cable Television Limited HCPI541/2001

There is a myth in the mind of certain people that the Court is bound to find liability against the employer whenever there is a claim by an employee for personal injury arising in the course of his employment.  Such myth was probably built on the misguided belief that any deficiency in the case would be made up by judicial sympathy for the injured employee and that somehow the court should bend over backwards to find a reason for finding liability against the employer.  I do not think that the court should take this approach.  

I would add, nor should litigants be encouraged to believe that to be likely to occur.

29.  The plaintiff has failed to prove a case against the defendant as a result of which the action is dismissed.  There will be an order nisi for the costs of the defendant, as taxed or agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.  Liberty to restore for argument on costs or any consequential matters on notice given within 14 days of this judgment.

30.  I would add one matter.  Had I been able to determine how the injury occurred and had it been in one of the circumstances as variously described by the plaintiff, I would have held that the plaintiff’s task of putting the bags containing clothing on the upper shelf was not inherently hazardous:  it was a simple one and the decision how it should be done was one that had to be taken frequently.  The plaintiff had had almost 10 years similar experience in previous employment before taking up employment with the defendant.  I would have adopted the principle in Winter versus Cardiff Rural District Council [1950] 1 All E R 819 @ 822/3 (followed in Cheung Suk Wai v Attorney General [1996] 4 HKC 288) that it was natural and reasonable that it was a decision that should be left to the workmen on the spot, especially in the light of the evidence of the first defence witness that instruction had been given not to overfill the bags.