CHAN KWAI NGOR v. LEUNG FAT HANG AND ANOTHER

1990, No. A4053

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. In the morning of 3rd October 1988, the Plaintiff, a cleaner working in the Buddhist Hospital, went to the Defendant's roadside restaurant with her daughter to have their breakfast. As both of them were in a hurry, to go to work and school respectively, the Plaintiff walked from the sitting area on the pavement and over a ramp formed by a metal sheet covering a ditch by the roadside into the kitchen to fetch food for her daughter instead of waiting to be served by the dim sum cart. When she was returning to her table with the food, she went over the metal ramp again. This time, she slipped and fell. Not surprisingly, as the metal ramp was greasy. She was taken to the hospital and found to have suffered injuries to her back from the fall. By these proceedings, she claims damages against the Defendant for negligence, as well as liability as an occupier under the Occupiers' Liability Ordinance, Cap. 314.

2. At the trial the Plaintiff gave evidence but called no further witness. The Defendant acted in person and elected not to give evidence, but only to make a submission on his own behalf.

3. There is no real dispute as to what actually occurred on that day. The metal ramp was greasy and slippery. The Defendant concedes that customers do from time to time go into the kitchen to fetch food themselves. However, his contention is that they, and the Plaintiff, ought not have done that, and should have waited to the served. He further submits that the plaintiff had been warned about the slippery floors as there was a notice posted up on the wall inside the kitchen. The plaintiff had been to his restaurant before and ought to have known of the warning notice.

4. As there is no suggestion that the Defendant had done anything to discourage or warn customers not to enter the kitchen area, despite his knowledge of their frequenting there, he can hardly be heard to say that they are not permitted to enter that area and are thus not lawful visitors on that part of his premises. I find his complaint in his regard void of any merits.

5. The warning notice was posted inside the kitchen and warned only generally of wet floors. There was no specific notice warning of the greasy ramp near the area in question outside, by the roadside leading to the entrance to the kitchen. Even if such a general notice was posted at the pertinent locality, a general warning of slippery floors can hardly be sufficient to excuse liability for a greasy ramp. I am satisfied there had been no sufficient warning given by the Defendant to excuse his liability as occupier for the dangerous situation he allowed to exist on his premises. Nothing short of a specific warning not to step onto that ramp will suffice in view of the greasy state of the metal surface. The Defendant also fails in this defence. I am satisfied that liability against the Defendant has been established as claimed. I do not accept that the Plaintiff had conducted herself in anyway that would cause any reduction or lessening in the Defendant's responsibility for the accident. The Defendant is thus wholly to be blamed for the accident.

The Plaintiff has not given any oral evidence of her injuries or disabilities. The only piece of evidence adduced on this aspect of the case is to be found in the 2 medical reports produced with the agreement of the Defendant. According to the medical report prepared by Dr. K.B. Tam and dated 28th February, 1989, the Plaintiff was admitted to the Queen Elizabeth Hospital with a low back pain. Physical examination revealed a weakness of her right leg and impaired sensation at the lateral aspect of her right thigh. X-rays showed a compression fracture of the 12th thoracic vertebra. There was no nerve roots or cord compression detected under CT Scan. She was treated with analgesics and thoraco-lumbar brace. Her pain improved after a few days and she was then transferred to the Kowloon Hospital on 12th October 1988 for convalescence. She was finally discharged from hospital on 21st October 1988. She was, however, re-admitted to the Kowloon Hospital on 23rd October 1988 due to persistent back pain. She was given a course of physiotherapy and was discharged on 4th January 1989. She continued physiotherapy treatment as an outpatient thereafter until early January 1990, as evident by the hospital receipts for outpatient fees.

6. When she was examined by Dr. Horsfall on 16th March 1990, she complained of nagging back pain if she stands or sits for more than half to one hour. She also told the doctor she could not walk for more than half an hour without having to take a rest. She also complained of numbness of the left leg. Throughout his report, Dr. Horsfall referred to complaints relating to the left leg, and not the right leg as per Dr. Lam's report. Dr. Horsfall also diagnosed impaired functions in the left and right leg. There is no explanation offered as to the shifting of impairment from the right to the left leg. However, this does not present an insurmountable problem to the overall picture of the Plaintiff's condition. Dr. Horsfall found the Plaintiff to have suffered from a minor crash fracture in the twelve dorsal vertebra (D12) with evidence of damage to D9, 10 and 11. He also said it can be taken for granted that there was possible damage in the soft tissues such as cartilage and ligaments. He therefore accepted her complaint of persistent back pain as genuine. But he was of the opinion that the Plaintiff had grossly exaggerated her pain and disability. There was only a reduction of 10° in the left leg on a straight leg raising test, being associated with pain. There was no muscle wasting and reflexes were normal. No sensory loss could be detected. Her gait was normal. It was the doctor's opinion that the back pain was not as serious as she suggested, and is likely that it will lessen after, but not before, her legal problems have been resolved. He said it is difficult to diagnose how "permanent" her disabilities would be. He came to the conclusion that she suffered a functional impairment of 7% of the whole person. He assessed the loss of earning capacity to be 15%. He believed she probably need 24 months for treatment and rehabilitation.

7. In Chan Wai Tong v. Li Ping Sum [1985] 2 W.C.R. 396, the Plaintiff, a female accountant, aged 25 who suffered a permanent disability of 20% as a result of back injury was awarded $90,000 for pain, suffering and loss of amenities by the Court of Appeal. This head of damages was upheld by the Privy Council on appeal in 1984. An award of $30,000 was made in fovour of the Plaintiff in Kwong Kam Cheung v. Lee Cheong Dyeing Works Ltd., High Court Action No. 2300/83, a male worker aged 40 who suffered a 2% disability from his back injury. He had stayed in hospital for 9 days and underwent physiotherapy for almost a year. The Plaintiff in Lee Miu Ling v. Wong Him Chee, High Court Action No. 1947/84, a female taxi-driver, was awarded $35,000 under this head by consent. She suffered some residual restriction in movement. In Lee Hen Chuen v. Fung Kin Sang & Anr., High Court Action No. A1105/89, the Plaintiff, a construction worker, who was hospitalized for almost a month and underwent physiotherapy for 3 1/2 months was awarded $150,000 under this head for injuries to his back and heel. He suffered back pain as well as some shortening of the right leg. In Fu Chee Kong v. Shun Fai Construction Co. Ltd., High Court Action No. A1247/88, the Plaintiff, a construction worker who received injuries to his ribs and liver and left with a persistent low back pain, was awarded $110,000 under this head. The Plaintiff gave no evidence at all as to her present condition and made no complaint of any disabilities or sufferings that still persist at the time of trial. No complaint was made of any persisting back pain. In the circumstances, I can only approach her condition on the basis that the symptoms she complained of to the doctors had since improved and no longer seriously troubling her. I do not therefore accept the submission that she should be placed at the lower end of the serious injuries category attracting awards in the region of $200,000 (on the basis of a 50% inflation since the days of Lau Che Ping v. Hoi Kona Ironwares Godown Co. Ltd. (1988] 2 HKCR 650). There exists no factor that would get her anywhere near the serious injuries category. An award of $80,000 is appropriate for pain, suffering and loss of amenities in view of her functional impairments and her periods of pain and hospitalization.

8. In her Particulars of Special Damages, the Plaintiff claims a total loss of earnings for the period between 3rd October 1988 and 3rd July 1990; save for a period of 2 months (March and April 1990) when she worked for the Regional Services Department and suffered only partial loss, and less a sum of S29,017 sick leave allowance received from Buddhist Hospital. It is regrettable that the consideration of this head of claim has been greatly perplexed by the state of evidence presented before me. No evidence was led to the effect that she had received no other income apart from the said sum of sick leave allowance and the 2 months' salary from the Regional Services Department for the said period. She only said she was "off work" for 2 years. It could not have meant "unemployed" as her employer said in letters dated 26th October 1989 and 21st May 1990 that her employment was only terminated on 30th September 1989. It was further stated in the letter of 21st May 1990 that her "monthly income in 1988 and 1989 was $3,546. Her average monthly allowance was $1,152 for the period 1st April 1988 to 31st March 1989 and was $1,344 for 1st April 1987 to 31st March 1988". I take the reference to "1st April 1987 to 31st March 1988" to be a mistake and should have been 1989 to 1990 as it is unlikely that her allowance in 1988/89 would be less than in 1987/88 despite inflation. (There being no suggestion it was quantum of work related allowance such as overtime pay). The letter also stated that her income "was" as the figures set out and not "would have been" in those figures but for the accident. However, on a further consideration of the situation, she could not have received full wages as the letter appears to have said. This is because the letter also said she received a sum of $29,017 as sick leave allowance. This sum could not have been for the 4 months sick leave granted by the medical certificate dated 4th January 1989 as that would have meant a monthly sum of $7,254.25 i.e. exceeding her normal pay. It could only make sense if the sum was meant to relate to the whole period between October 1988 and September 1989, making a monthly average of $2,418 i.e. about half of her normal pay. Under the Employment Ordinance, Cap. 57, an employee would have been entitled to a maximum of 120 days sick leave pay at two-third of his normal pay. In view of the fact that the Defendant did not challenge this aspect of the Plaintiff's case at all, I am prepared to accept that the Plaintiff only received $29,017 in total from her employer for the period from October 1988 to September 1989. She was unemployed from October 1989 to February 1990. Though the letter dated 1st March 1990 stated her salary to be $3,840 per month only as Workman II with the Regional Services Department, her claim was made in The Particulars of Special Damages on the basis that she received $4,000 per month for March and April 1990. The Particulars of Special Damages claimed that she was unemployed from May until July 1990. From her evidence, it is unclear for how long she was off work before she commenced her employment in her present job. The earliest salary slip to be found in the bundle of documents was dated July 1990. Again, as there was no challenge from the Defendant, I accept that she was unemployed for May and June 1990. She is thus to be awarded the difference between what she actually earned and what she should have earned from October 1988 to June 1990. The figures are not challenged by the Defendant and she is to be awarded $66,288 as claimed. No further claim was made in either the Particulars of Special Damages or in counsel's submission for any further loss of earnings since July 1990 or for loss of future earnings and thus no award is made in respect thereto. But, I note that in fact her actual earnings ranged between $3,945 to $5,370 from July 1990 to December 1991, and her would be income but for the accident could have been at least $5,479 since April 1990.

9. Though counsel for the Plaintiff has by the amendment to the Statement of Claim included a claim for loss of earning capacity of 15%, no submission was made on this issue at all. The only evidence in support of this claim is to be found in Dr. Horsfall's report i.e. his assessment of 15%. The Plaintiff is now working in a similar job as before. There is no evidence she encounters any difficulty in the discharge of her duties. There is no evidence she is suffering from any disability that would affect her earning powers. Referring to a claim for loss of future earning capacity, Lord Fraser had this to say in Chan Wai Tong v. Li Ping Sum, supra at page 404 : "The claim is to cover the risk that, at some further date during the claimants working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of that future risk : see Moeliker v. A Revrolle & Co. Ltd. [1977] 1WLR 132, 140 where Browne L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment .... Evidence will also be generally required in order to show how far the claimant's earning capacity would be adversely affected by his disability." I do not accept Dr. Horsfall's opinion on the loss of earning capacity. Without knowing Dr. Horsfall's experience and expertise in this area I do not regard that matter to be one within his professional expertise to give expert evidence on. Though the degree of functional impairment plays an important part in the assessment of loss of earning capacity, the nature of the employment, the effect of the disabilities (if any) has on his job, the situation of the labour market are but some of the other factors to be considered. It is not unreasonable for me to assume that it would not be difficult for a cleaner/amah at hospitals to find similar jobs in Hong Kong if she loses her employment. On the contrary, to my knowledge I believe there is a great demand for labour in such jobs which are usually regarded by many as "undesirable" jobs. In any event, in the absence of any reliable evidence of the sort highlighted in the authorities referred to above, I am not satisfied that the Plaintiff has made out a claim for loss of future earning capacity.

10. I was not addressed on at all, nor was I referred to any specific documents, on the other claims of special damages in the Particulars of Special Damages. The claim in the Particulars of Special Damages for hospital charges and treatment fees added up to a total of $3,837. However, receipts found in the bundle of documents totalled $4,244. As none of the documents, nor the nature or extent of this claim, were ever explained only $3,837 as particularised is awarded. As no evidence was called at all, nor is there any documentary evidence to be found in the bundle of documents, on the claims for bonesetter fee, private medical treatment, travelling expenses, damage to clothings and personal effects, child care or tonic food totalling $27,765, none will be awarded save $1,400 for travelling expenses to hospitals. Travelling expenses are awarded on the basis of $20 per round trip, which I accept even in the absence of any evidence to be a reasonable amount, for the 70 trips pleaded in the Particulars of Special Damages (though in fact the 130 receipts indicated there should be 130 attendances at the outpatient clinic alone). There was again no evidence relating to the purchase of any surgical corsets, at a cost of $2,317 or at all. Neither did any of the doctors commented on the need for one in any of their reports. That claim must also fail for want of proof.

11. In the premises, the Plaintiff is awarded damages in the total sum of 5151,525 with interest at the rate of 2% p.a. on $80,000 from the date of writ, and at the rate of 5% p.a. on $71,525 from the date of accident, to the date of trial. The Plaintiff is to have the costs of the action. Since this is a legally-aided Plaintiff, the Plaintiff's own costs is to be taxed in accordance with the Legal Aid Regulations. In view of the manner the Plaintiff's case had been conducted, it is necessary for me to consider if a direction ought to be given to draw the Taxing Master's attention to certain matters for his consideration under para 2(b), Part II, First Schedule of Order 62, Rules of the Supreme Court in taxing the Plaintiff's costs against the Defendant as well as her own costs under the Legal Aid Regulations. This matter shall be decided after hearing Plaintiff's solicitors at the time of delivery of this judgment.

Dated this 21st day of February 1992