CHAN LAI LEE REBECCA v. THE GRANDE GROUP (HONG KONG) LTD

HCPI 623/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 623 OF 2004

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J U D G M E N T

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1. This is the trial of an action brought by the plaintiff employee against the defendant employer for damages suffered in an accident in the course of work alleged to be due to the negligence of the employer.

2. This matter went back some time ago to 17 July 2001.  The plaintiff was one of two receptionists employed on the ground floor of the lobby of the building owned by the defendant.  Previously the main reception was not in existence but on each of the upper floors there were separate reception areas. 

3. In November 2000, the main reception area was established on the ground floor, manned by two receptionists sitting side by side.  The marble floor had been in existence for some time but it was re-polished in November 2000 when the reception area was established.  The plaintiff and her co-worker Amy Vong started working there from December 2000 until the alleged accident in July 2001.  They worked, therefore, seven months at the main reception area.

4. The system of work was that there was a reception counter, what I would say is more like a reception desk, where the two ladies were sitting, and then there was a slightly higher counter where visitors or couriers could put things down.  The pictures from page 115 onwards in the bundle show clearly the relevant reception area where the two girls were working.

5. Both of them sat in commonly seen chairs with arms, with wheels and which could swivel to enable them to move easily in the course of their work.  In the course of their work, they often have to write things down; to stand up to greet visitors; to stand up to receive documents or parcels; they have to answer phones; they have to make phone calls; they have to record matters into books and so on and so forth.  The chairs supplied were those commonly seen everywhere in Hong Kong and commonly used by receptionists in the course of their work.  The marble floor or granite was one of those, again, commonly seen. 

6. On 17 July 2001, it was alleged by the plaintiff that she suffered injuries while she was working alone — at the time when her co-worker had already left.  Towards the end of the day, at about 5:30 p.m., a delivery man came, she dealt with him, she was standing up and then when she sat down, she found that she missed the chair and she fell on the floor and thereby suffered injury. 

7. According to her evidence, because she was the only one who was there, no one witnessed the accident.  She said she was in pain that evening, she had her husband assisted her with rubbing, I think Chinese oilment, on her injured part.  The next day she went back to work as normal but she was suffering from pain, so she then went to see a Dr Shek.  Dr Shek gave the plaintiff a painkilling injection.  It was also her evidence that the following days, namely 19 and 20 July she went back to work but she did not stay long because of the pain and so she took sick leave again.

8. Her evidence was that on 23 July, which was a Monday after she had gone back to work, the pain became so serious that she went to the Accident & Emergency Department of United Christian Hospital where she was admitted and there, I think, she remained.  It is not in dispute that she officially complained of the work accident only on Monday, 23 July 2001.  The question that the court had to answer in the action now being brought by her where she gave extensive evidence is :

(1)	whether there was the work accident that day on 17 July;
(2)	whether she fell on 17 July the way she alleged;
(3)	whether the system of work provided by the defendant employer in the combination of the chair with wheels and the marble floor was unreasonable, negligent, defective so that that defectiveness or negligence was the causation of her injury; and
(4)	assuming that there was negligence on the part of the defendant, what was the contributory negligence.

There was considerable dispute particularly on Issue 1 and 3. 

9. Let me first say at the outset what is my assessment of the three witnesses who gave evidence before me.

10. The plaintiff gave long and elaborate evidence.  There were a number of stoppages during the trial because the plaintiff was either crying or was complaining about pain.  I have formed a very unfavourable view of the plaintiff as a witness.  I would elaborate later as to the reasons why in my view she is not a reliable witness.  She came across as being very bright, very quick to react.  Time and again she took advantage of her sobbing and her pain discomfort to think of an answer.  She always has some sort of answer, no matter how ridiculous the answer would be.  She is no ordinary plaintiff.  She is, certainly in my view, not a reliable witness. 

11. I have on the other hand as witness her co-worker, Amy Vong.  She came across as a particularly impressive witness.  She worked for sometime with the plaintiff.  Miss Amy Vong ceased work for the defendant in 2005, so she is no longer employed by the defendant, and there is no reason for her to assist the defendant’s case by giving untrue evidence.  She came on a subpoena.  She obviously was a friend of the plaintiff and from the way Amy Vong gave evidence, it was obvious she was struggling to put the best evidence forward if she could in favour of her friend the plaintiff, and sometimes of course, it was so obvious, that she could not possibly say otherwise, for example in relation to the sick leave — how often the plaintiff took sick leave, because I think it was notorious in the whole company that the plaintiff was known to be the largest taker of sick leave, so when giving evidence on this she smiled but yet gave as neutral evidence as possible.  When she came to give evidence about a very material aspect, about, for example, whether she ever heard the plaintiff complaining about slipperiness of the floor or request for carpeting, she knew it was material evidence, very important to her friend and she struggled — struggled mentally whether to what extent she could help her friend, but she gave her evidence required to be given according to her oath.  I have been very impressed by her.  I think she was a friend of the plaintiff because they continued their friendship — they continued to see each other after the plaintiff left.  Yet undoubtedly her evidence was unfavourable to the plaintiff.

12. Then there is Miss Lai who was in a superior position in the company.  She gave competent, good, solid evidence and I also accept her evidence.

13. So, in terms of the evidence, there is no comparison between the reliability of evidence for the defendant and the unreliability of evidence of the plaintiff.  However, it goes beyond this because when one comes to analyze the material, then one starts to truly appreciate the unreliability of the plaintiff’s evidence.

14. I now turn to dealing with the issues.

15. The 1^st issue : was there a work accident on that day?  The plaintiff said there was, on 17 July.  Now, what was extraordinary was, it was at a time when there was no one there, it was towards the end of the day; she did not complain the next day, she went back to work for many days.  There is also the evidence which is not in dispute that after working on those days, she left early on those days because her complaining of pain.  If she had no previous back pain problem that of course would narrow down the probability of her leaving earlier those days because of her work accident.  But she had a previous back pain problem which she tried to deny in her evidence, until she was confronted with two sick leave certificates, one in January 2001 and one in March 2001 which clearly shows that she had a lower back problem all along?  She tried to explain that away in her evidence, which evidence was totally unacceptable and unbelievable to me and I do not accept her explanation. 

16. She did not complain to the company about her alleged work accident.  If the accident was what she said it was and giving so much pain as required injection by Dr Shek the next day and her leaving early for so many days, one would expect a great deal more from her than saying nothing but instead she came in to work and although she left earlier, she never said to the defendant, hey, you are at fault.  It was only on 23 July that there was official complaint.

17. I have not overlooked page 161 where Miss April Wong (“April”) in a statement to the adjusters referred to what happened on 19 July when the plaintiff was observed by managers hobbling in the lobby and when the plaintiff was asked why she was hobbling, she said she had a fall two days earlier.  I have not overlooked that but first of all there was no reference in the statement to her saying there was a work accident, merely a fall.  Secondly, the plaintiff herself did not give any evidence on this.  Thirdly, we do not have the oral evidence of April to tell us the detail of that incident and if that is going to be relied upon so heavily by the plaintiff as having been established that there was an industrial accident on 17 July as referred by the plaintiff to the managers on 19 July, then I would expect a great deal more.  So I do not regard that statement of April as having totally outweighed and displaced the substantial contrary evidence against the plaintiff in particular my negative view of her as a reliable witness.  It seems to me that on the 1^st issue as to whether there was a work accident on 17 July that I am not satisfied that this has been established. 

18. I now turn to Issue 2.  Now, strictly speaking, it was not necessary for me to go on, but in case I am wrong, I now turn to some of the other Issues.  On Issue 2 there is not really that much difference because her description is really this : the courier man came, I got up, when I was talking with him I felt from my calf the edge of the chair, and she dealt with him, he left, then she sat down and when she sat down she felt her bottom touched the edge of the chair, the chair moved away and she then fell on the floor with her bottom hitting the floor.  Now, the way she described the accident would suggest, therefore, she was not looking.  In her statement at page 124, she in fact admitted as much.  She said : “I did not look the position of the chair and I sat down” and that was why she missed the chair and she said to such effect in statement after statement, and these are contemporary statements, that is to say made soon after the accident which is therefore of far greater weight.  I largely discount what was said by Mr Lam in submission that she was in pain and therefore the statements she made must be given if I may use the expression considerable allowance.  In my view, there is no room for that kind of allowance.  She either gave truthful statements at the early stages or she did not.  If what is now suggested is that the accident happened purely not due to her negligence but due to the defendant’s negligence (of course this touches on Issue 3) I would have expected very different kind of statements being made at that time.  The number of statements that she made consisted of, I think, the 1^st industrial report at page 105, the 1^st Labour Department statement at page 190, the 2^nd Labour Department statement at page 119, and the 3^rd Labour Department statement at page 96.  It seems to me (especially the earlier ones) all of them point to her being careless and not looking and not appreciating the proper position of the chair and that was why she missed the chair.  So on Issue 2 there is not really that much difference between the parties.

19. Now, it is on Issue 3 that there is a substantial difference between the parties.  The question really is : was the defendant unreasonably negligent in providing that work combination of marble floor and chair with wheels.  There is nothing remarkable about the marble floor, it is not alleged to be particularly highly polished, or to so slippery that people even walking would fall or anything of that kind.  It is not suggested that the floor was not flat.  So far as the chair is concerned, again it is not suggested those chairs had any particular characteristics nor is it even suggested that the wheels of the chairs were of such high quality that they could move easily on a slight touch.  So they are ordinary chairs for receptionists with wheels for use on ordinary marble or granite floor in lobbies which you see everywhere in Hong Kong. 

20. My commonsense tells me that there is nothing wrong with that combination.  My commonsense also tells me that the lack of any evidence that there had ever been any reported casualties or industrial work accidents suffered as a result of that combination certainly seems to suggest that there is nothing in the case at all.  Now, it is through sheer persistence of the combination of Mr Lam and his instructing solicitor and the plaintiff, with the blessing of the Legal Aid that this case was mounted, in a way as to suggest that this combination is no good and that is to say you should not provide a system with that kind of chair with wheels and with marble floor, and that at the last minute it was suggested that it should be carpeted.  It has never been alleged in the Statement of Claim that it should be carpeted.  Negligence was put in general terms.  The plaintiff sought to introduce her past complaint about the carpeting and the slipperiness of the floor by way of two previous meetings of receptionists and complained that the records that had been produced of the minutes of the meetings were not accurate. 

21. Her allegations that she had twice complained about the slipperiness of the floor and suggested carpeting was, however, not agreed by her friend, Amy Vong.  That is very persuasive evidence for the court to say it did not happen.  This is a friend of hers, and if there is one occasion when a friend might help her, the friend did not — the friend did not want to lie.  So I have no doubt that the plaintiff’s allegation of previous complaint is not true.  If she had made a previous complaint and the floor was not carpeted, I would expect to see the carpeting of the floor to be in the forefront of not only the plaintiff’s case, in the witness statement, in the Statement of Claim, but in her contemporary statements to all the relevant authorities.  She would be saying : look what had happened, this is exactly what had happened.  I have asked for carpeting, you did not give me carpeting, now it had led to this injury.  That was what I would expect.  This is not what happened.  So, I have very little doubt that there is really no substance in her present complaint about non-carpeting.

22. What then is the case all about.  It is really summarized (and I agree totally with Mr Li) in the very few words in the Labour Department’s report in page 123 where it says :

“	… Based on the information gathered, it was believed that the cause of accident was due to [the plaintiff’s] carelessness while seating as admitted by her.”

This conclusion came from what was said, on the previous page 122, where it was said in the report :

“	… she paid no attention to the location of her seat and sit lose to fell onto the ground. …”

23. So that is what the case was all about.  This is a careless employee who did not look and therefore fell and it is a very rare occurrence, but the intelligence of the plaintiff led her to then transform her pre-existing lower-back problem into a potential liability of the defendant because she said it was due to the defendant’s fault that she fell and therefore her lower-back problem (which was pre-existing) should be the responsibility of the defendant.  I sympathize with the plaintiff for her difficult position, being a doubly divorced lady, having to bring up a child single-handed, possibly having very little financial resources, having a lower-back problem.  Therefore I sympathize with her difficult position but I simply cannot give any part of my sympathy to the way she has advanced her case and tried to claim against the defendant for an obligation that she knew the defendant has not neglected.  The defendant had been reasonable employer, they have provided her reasonable system of work.  I simply do not believe that there was a case of defective plant or system of work.  She was the only one to blame if she had suffered the accident the way she did which I have rejected.  So in my conclusion on Issue 3 is that she has failed on that Issue even assuming that I was wrong on Issue 1.

24. So far as Issue 4 is concerned, I do not wish to say anything.  It seems to me it does not arise.  In the circumstances, the action must be dismissed with costs. 

[Submissions by counsel]

25. The plaintiff’s own costs is to be taxed in accordance with the Legal Aid Regulations.