ZHANG MIAOYUN v. KINGMEN INVESTMENT LTD t/a HEI HEI CHINESE KITCHEN

HCPI 1348/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1348 OF 2014

________________________

_______________________

________________

J U D G M E N T
________________

1.  This is the plaintiff’s (“Zhang”) personal injuries action against her former employer, the defendant (“Kingmen”). Kingmen was placed into creditors’ voluntary liquidation on 24 January 2013, and is represented in this trial by one of its joint and several liquidators (“JL”), Mr Yuen, who is acting in person.

2.  There is no real dispute over the circumstances of the accident in question (“Accident”).  Zhang’s evidence concerning the Accident is quite simple.  At the material time, she was working as a waitress in a restaurant operated by Kingmen.  At about 6:30pm on 26 September 2009, she was getting things ready for the dinner business in the course of which she was carrying a plastic tray of utensils on her left hand and a pile of 10 plates on her right.  When she approached a bar table, she fell on her back due to the slippery condition of the floor, hitting her head in the course of the fall. Zhang sustained injuries to her head and back as a result of the Accident.  She said that she suffered some loss of consciousness shortly after the fall. 

3.  Zhang said that there was a bucket of drinks on the floor by the bar table.  That is consistent with the evidence adduced by the defence.  Indeed, according to a short statement of the manager of restaurant, attached to the witness statement of Mr Siu, who was a director of Kingmen and gave evidence for the defence, the floor there was wet due to the presence of melted ice. Zhang’s evidence is that the floor in question was tiled. 

Liability

4.  A number of causes of action are being relied upon by Zhang – negligence and a host of statutory duties.  The latter add little to the common law duty of care and it is unnecessary to deal with them in light of the lack of any serious dispute (the defence is merely putting Zhang to prove her case).

5.  I have no difficulty finding that Kingmen was negligent in failing to take reasonable care of Zhang as its employee.  This is an open and shut case.  Anyone who had walked on a wet tiled floor knows how slippery that can be.  Kingmen should not have tolerated that state of affairs, and should not have allowed Zhang to work in such an environment (there was no warning sign of any sort). 

6.  In respect of Kingmen’s pleaded case of contributory negligence.  It is not supported by any evidence.  Further, it must be said that the court does not make such a finding lightly in a case involving employer’s liability to its employee.  Common sense dictates that when the employee is busy discharging her duties in the course of employment, she would not have the opportunity to assessing the circumstances with care to see how she could protect herself.  I therefore decline to make any finding of contributory negligence in this case.

Injuries

7.  Zhang was 30 years old at the time of the Accident.  She will be 37 in March 2006.  She was educated up to primary 4.  She is married and has a 10 year old son. 

8.  The medical evidence is not disputed.  Although Zhang did not require any hospitalisation after the Accident, the course of recovery was lengthy.  Her condition is now static (having reached maximum medical improvement) and there are permanent injuries as a result of the Accident.

9.  According to a joint report by the orthopaedists, Dr Tio and Dr Lau, Zhang had sustained head and low back contusion as a result of the Accident.  When Zhang was examined by the experts 3 years after the Accident, she still complained of headache and low back pain.  The medical findings under “Present Condition” were as follows :

“Physical examination shows essentially normal general ambulatory capacity. Examination shows pain-focus behaviour and all the Waddell’s signs are positive (5/5). There is generalized low back tenderness with mild stiffness, impaired light touch of whole leg, positive distraction test, positive simulation test and over-reaction.

Updated x-rays show mild stiffness of lumbar spine on flexion/extension.

  We agree that the objective findings are compatible with satisfactory recovery from the low back contusion with residual pain-focused behaviour. …”

10.  The overall prognosis for Zhang is fair.  She may have residual headache and low back pain from time to time and mild leg numbness.  Her capacity for more vigorous activities such as prolonged heavy exertion and sports is affected.  The experts differ on their assessment of permanent impairment, which ranges between 2% to 4%. 

11.  However, it is agreed by the orthopaedists that Zhang is capable of returning to her pre-accident job, but with reduced capacity in that she will require more rest and have to avoid lifting heavy objects. 

12.  Mr Sham, who appeared for Zhang, has placed more emphasis on the evidence of the neurologist, Dr Chan.  Dr Chan’s diagnosis is that Zhang is suffering from residual neurological complaints of headache, giddiness and poor memory.  Such complaints are consistent with the diagnosis of post-concussion syndrome.  Dr Chan’s assessment of the impairment of the whole person is 6%.   

13.  Dr Chan is of the opinion that Zhang is not able to return to her pre-accident job because of the long hours and her impairment memory, which will make it hard for her to make calculations and manage orders from customers.  She can, however, manage to work part-time and less demanding job such as a dish carrier. 

14.  Finally, there is a psychiatric report from Dr Lai, who is of the view that Zhang is also suffering from mild residual psychiatric symptoms. 

15.  The medical evidence is consistent with Zhang’s evidence that she has been working part-time as a waitress since November 2012 earning between HK$8,000 odd to HK$2,000 odd per month, depending on the number of days her worked, which in turn depended upon her physical condition. 

Quantum

16.  Mr Sham has helpfully set out the quantum claims in his written opening.  Quite fairly, Mr Yuen has confined the dispute to a handful of items.  As ventilated in the course of final submissions, I shall deal with all the constituents of the claim in this judgment.  A revised schedule of calculations should be filed by Zhang’s solicitors to reflect the findings of this court in conjunction with a draft judgment for approval. 

17.  I see no reason to disagree with the general damage of HK$350,000 suggested by Mr Sham, placing this case below the “serious category” the range of award for which starts at HK$460,000. 

18.  For the pre-trial loss of earnings, Zhang’s basic monthly salary at the time of the Accident is agreed at HK$8,000.  I uphold Zhang’s claim that she had 4 free meals everyday, instead of 2 as contended by Kingmen.  Although Mr Siu said that Zhang was, officially, only provided with 2 meals, I have to bear in mind his concession that he was hardly at the restaurant.  More importantly, the uncontested evidence is that Zhang had long working hours, and it is perfectly conceivable that she was provided with breakfast as well as a supper in addition to the 2 “official” meals of lunch and dinner.  The value of 4 meals, HK$2,080 per month, is undisputed.

19.  I also prefer Zhang’s evidence, instead of Mr Siu’s, on her monthly tips of HK$500.  For the calculation of the pre-trial loss of earnings, the monthly basic salary is increased by 4% every year, which is uncontroversial.  I think that is reasonable bearing in mind that there is no similar adjustment for the meals and tips. 

20.  For the sick leave period claimed (from 26 September 2009 to 16 August 2012), I make a deduction of 6 weeks to reflect the evidence (see p.267 of the hearing bundle).

21.  The multiplicand adopted for the calculation of loss of earnings during the sick leave period (HK$11,338) is, in my view, appropriate.  I also agree with the multiplicand to be applied thereafter for pre-trial loss of earnings, HK$12,432.

22.  In respect of the post-trial loss of earnings, there is substance in Mr Yuen’s criticism on the adoption of HK$6,000 as Zhang’s current monthly earnings.  There is little detail in her evidence about why it is so limited.  Bearing in mind that the current total monthly income for a waitress is HK$13,018, I will adjust Zhang’s post-accident monthly earnings to HK$6,500. 

23.  I agree with the multiplier of 17.40 to be applied to the post-trial loss of earnings.  It is supported by the Personal Injury Tables Hong Kong 2013 cited by Mr Sham.  

24.  I cannot agree with the loss of earning capacity claim.  Zhang is still relatively young.  The employment market in Hong Kong is favourable.  I see no justification to take the view that there is a real chance that she may lose her part-time job in the future.  To the contrary, I believe that once the burden of this litigation is lifted from her shoulders, Zhang may be able to focus on how to make the best of her earning capacity.

25.  The claims for medical expenses, travelling expenses, tonic food and loss of mandatory provident fund (subject to recalculation in light of the above) are not disputed.  They are allowed in full. 

26.  As pointed out by Mr Sham, the damages awarded herein will have to be deducted by the employee’s compensation received by Zhang (HK$230,070 (inclusive of interest)).  I also award interest in the usual manner for personal injury cases.

27.  I give judgment for the plaintiff and make an order nisi that the costs of this action be to Zhang, to be taxed if not agreed.  Her own costs are to be taxed in accordance with Legal Aid Regulations.