LAM MUI v. KALEX CIRCUIT BOARD (HONG KONG) LTD.

HCPI 1155/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1155 OF 1997

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J U D G M E N T

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1. The Plaintiff, Madam Lam Mui now aged 35, claims damages for injuries sustained while working for the Defendant company on 25th November 1994. At the time of the accident, she was 30 years old and employed by the Defendant as a grade 3 technician. Her principal duty was to check and if necessary repair electronic circuit boards which had come from the Production Department and then after she had done so, to deliver them to the Quality Control Department, situated approximately 20 feet or so away from her desk.

2. In normal circumstances, she would collect a batch of approximately 120 circuit boards from the Production Department, put them into a trolley and bring them to her desk. The boards would be stacked in a vertical position in a blue tray on the trolley. She would check each board and if necessary effect repairs before putting it back on the same trolley. Normally, this would be the basket of the same trolley containing the boards which had still to be checked. There were exceptional occasions when no trolley was available and the boards would have to be placed in a tray placed on the floor. There were other occasions when more than one trolley was available and she could place the boards she had checked in a different trolley to that on which they had been brought to her desk.

3. In normal circumstances when she had finished checking all the boards in a particular batch, she would wheel the trolley to the Quality Control Department and unload the boards into similar trolley there.

4. Shortly after starting her work at around 2:45 p.m. to 3:00 p.m. on 25th November 1994, the date of the accident, the Plaintiff was told by her line supervisor, Madam Chan Ling, that the workers on the previous shift had not reached their quota in respect of boards of a particular type which were required urgently. She was instructed to hurry and take the boards to the Quality Control Department for inspection.

5. The Plaintiff's evidence initially was somewhere between 10 and 20 boards were necessary to fulfil the quota. She later said that it was at least 20. At the time she received these instructions, these boards were not available for inspection. She had to wait until they were produced by the relevant machine. She then carried these boards to her desk manually from the machine as they became available. This necessitated several trips. She put the boards into the tray of the trolley beside her desk together with other boards she was inspecting which were not part of the quota. After she had checked them, she put them back in the same tray. Those which had been checked leaning in one direction and those awaiting inspection leaning in the opposite direction.

6. Despite the urgings of her supervisor to hurry, it was not until about 4:30 p.m. that the machine had produced and she had inspected the requisite number of these particular boards. She then lifted the boards out of the tray together and carried them manually to the Quality Control Department. Her estimate as to the total weight was about 30 pounds. She said she had to bend her back to put them in the tray of the Quality Control Department. After she did so, she felt severe pain in her back. It is in respect of this accident and her resulting medical condition, that she seeks damages.

Liability

7. The Plaintiff brings this claim against the Defendant on the grounds of negligence, breach of its contractual duty under its employment contract with her and its statutory duties under S. 3 of the Occupier's Liability Ordinance, Cap. 314 and S. 6A, Factories and Industrial Undertakings Ordinance, Cap. 59.

8. This has involved an examination of the system of work at the Defendant's factory on the day in question with particular regard to the protection afforded to its employees from the danger of carrying excessive weights. Much of the evidence has come from the Plaintiff herself.

9. One of the principal difficulties for the court in this trial, both in considering the question of liability and of quantum, has been to assess how much weight to attach to what the Plaintiff says. She is a woman who purports not to be able to say how many legs a dog has because she has not seen one recently, but yet to be able to give evidence in considerable detail about the circumstances of the accident which occurred 5 years ago. I have, therefore, had to approach her evidence with caution.

10. On the evidence I have heard, I am satisfied the Defendant company was aware of the danger to its employees from lifting weights and had taken a number of steps to warn its employees of and protect them from these dangers. These included the following:

(1) Hanging up a poster produced by the Labour Department in the area in which the Defendant worked warning workers to take care when lifting weights. The illustration on that poster was not, however, appropriate to the lifting of flat objects, such as the circuit boards in question.

(2) Providing trolleys which employees could use to transport the circuit boards from one area to another.

(3) Regular oral instructions from the chief supervisor of the Production Department to employees including the Plaintiff not to lift circuit boards if the load was too heavy. The Plaintiff referred to these instructions in two statements she gave to loss adjusters in April and September 1996. In those statements on 3 occasions, she referred to the workers "always" being given these warnings. In court, she claimed to remember that she had not used the word "always" when making these statements, and that although there had been warnings in the past, there had been none recently. I was not impressed by her attempts to contradict what she said in these statements. I believed that it was probable that these statements reflected what she told the loss adjusters.

11. At the time of the accident, she had been employed by the Defendant for over 4 1/2 years. She had been promoted to technician grade 3. It is clear from her statement to the loss adjusters that she was aware of the dangers of lifting too many boards. Not only had she been informed of the dangers by her superiors but she, herself, reminded new colleagues of these dangers. She conceded that if the circuit boards she had to move were too heavy to be moved in one trip she would move them in several trips. She also said that having worked to the factory for the time she had, she had a "pretty good idea" of the weight of circuit boards she could lift.

12. Bearing in mind that the weight of each individual circuit board was only about 1 1/2 pounds and it was left to the Plaintiff to decide how many boards to lift at any one time it might be thought the Plaintiff would have considerable difficulty in establishing any liability on the part of her employer. Employers cannot be expected to exercise constant supervision over everything their employees do. As Lord Kilbrandon said in Brown v. Allied Iron Founders [1974] 1 WLR 527:

"Employers are not required or expected to be on a constant watch to see that no one moves a weight which is too heavy for him, nor will such solicitude be well received, however, kindly intention ....... Often it must be left to the employee to make up the load he is to move; if the work does not necessarily involve the moving of injuriously heavy weights, but it is quite compatible with the selection by the employee of a safe load for individual movement, the employer cannot be said to have employed him to move a weight which was not safe."

13. There are circumstances, however, in this case which I am satisfied put the Plaintiff's situation in a different category. Her evidence was that she was required to check this particular quota of boards (which I shall refer to as the "urgent boards") as they became available while she was checking a normal trolley load of other boards (which I shall refer to as "non-urgent boards"). Her evidence was that there were more than 200 non-urgent boards in the trolley on which she was working. As the urgent boards came through, one or a few at the time, she put them in the same trolley as the non-urgent boards. She was not permitted to take the urgent boards over to the Quality Control Department as she checked them because they have to be kept together as a lot and then taken over together.

14. During the course of the afternoon, she was subjected to repeated pressure from her line supervisor, Madam Chan Ling, to deliver the completed batch of urgent boards to the Quality Control Department. When the time came that she had the complete quota of urgent boards, she looked around for a trolley to take them over to the Quality Control Department but found there was none available. She said that it would have been much slower to push her trolley over containing as it did a very large number of non-urgent boards to the Quality Control Department and then unload the urgent boards rather than take the urgent boards over by hand. This was because of the weight of the trolley and the fact that it was defective. She said that often in situations of urgency, her fellow workers including her own immediate supervisor, Madam Chan Ling, would carry boards by hand. Because she was under pressure, she did not move the non-urgent boards over in more than one batch, but carried all the boards over together. It was then the accident occurred.

15. There were aspects of her account which I viewed with scepticism. At one stage, she said for the first time that Madam Chan Ling had ordered her to take the urgent boards over by hand. I consider this unlikely to be true. Her account of the trolley being defective, which she had never mentioned before, was I thought doubtful. I had no reason to disbelieve the other aspects of her account. Mr. Lai Kam Wai, the maintenance supervisor of the Defendant confirmed that despite warnings, employees would still carry circuit boards by hand.

16. Her statement to the loss adjusters that there were sufficient trolleys in the factory does not necessarily conflict with her evidence that there was no trolley available, at least in the close vicinity, when she had the quota of urgent boards ready for delivery. One trolley would indeed be sufficient if, as normally would be the case, each worker in the Plaintiff's position was checking one batch of boards. It was not sufficient if the worker was required to check two different batches simultaneously.

17. I consider that the fact that there were insufficient trolleys in the immediate vicinity to deal with a situation when the worker was required urgently to deal with a second batch of boards, coupled with a lax culture within the section which was condoned by the line supervisor whereby boards were carried by hand in urgent situations led to the accident in the present case. Faced with pressure to deliver the goods to the Quality Control Department as quickly as possible, she carried more boards than it was safe for her to carry.

18. It is true that she could have carried the boards over taking two or more trips. But it is common experience that if a person is put to work under stressful conditions, he or she may be more likely to make mistakes and overlook matters concerning his or her own safety: see Lau Wing Shing v. Cheong Fai Mechanical Works [1987] 2 HKC 180.

19. I find that these matters amount to negligence and breach of duty by the Defendant.

Was the Plaintiff contributory negligent?

20. In Machray v. Stewarts and Lloyds Ltd. [1964] 3 All ER 716 at 721E. McNair J. said:

"When I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer's business and I find that he has been prevented from doing the work in the way which he would have preferred to do by the employer's breach in not providing him with the proper tackle, I am very slow to put the blame on him."

21. While bearing these words in mind, I am nonetheless satisfied that in this case, there was some contributory negligence on the part of the Plaintiff. The accident occurred at around 4:30 p.m. She had known since 2:45 p.m. to 3:00 p.m. that the boards were needed by the Quality Control Department as a matter of urgency. During that hour or so I am satisfied that it would have been possible for her to locate an empty trolley, if not in the immediate vicinity then elsewhere, suitable for transporting these urgent boards from her desk to the Quality Control Department. She failed to consider this and relied upon there being an empty trolley available in the immediate vicinity when she had completed checking the final board. Experience should have taught her that this was not always possible. I find her 20% contributory negligent.

Quantum

Pain, suffering and loss of amenity

22. Following the accident, the Plaintiff was sent by ambulance to the Accident and Emergency Department of Yan Chai Hospital. An X-ray did not reveal any bone injury and she was discharged home. Her back pain did not improve and on 16th December 1994, she was referred to the orthopaedic clinic of the hospital. She was treated with analgesics and physiotherapy. It was not until a lumbar myelogram was performed in January 1995 that a prolapsed disc was found at the L4/5 level. She received physiotherapy. An MRI was performed in August 1995. It confirmed the diagnosis of a prolapsed disc but showed no evidence of nerve root compression.

23. In April 1997, she was hospitalised for 5 days because of back pain. She has never returned to work. She is still attending the orthopaedic clinic of Yan Chai Hospital for follow-up every 3 to 4 months. She is attending Tuen Mun Psychiatric Centre every 4 weeks and is under medication prescribed by that Centre.

Her present complaints are multiple. Among them are the following:

Persistent back pain which radiates to her lower left limb.

Pain, weakness and numbness over the left lower limb as a result of which she cannot walk without support.

Pain over right lower limb.

Inability to carry weights over 5 pounds.

She requires the support of others to climb stairs and to go to the lavatory.

She is depressed, tired and weak.

24. She feels she has become useless and a burden on her family. She frequently cries. She is irritable and hot-tempered. She has a bad appetite. She has contemplated suicide. She has difficulty in sleeping. She is unable to work, to look after her children and to do the housework. She was helped into the witness-box and sat with her head forward looking down while she testified.

25. The medical evidence quoted at the trial has fallen into two categories, orthopaedic and psychiatric. Dr. Danny Tsoi and Dr. Arthur Chiang testified as to her orthopaedic condition. Dr. Chung See Yuen and Dr. Singer testified as to her psychiatric condition. All 4 doctors shared the view that the Plaintiff was at the very least exaggerating her symptoms. Dr. Singer believed that it went beyond the exaggeration and that she was inventing symptoms.

The orthopaedic position

26. There was a high degree of unanimity between the orthopaedic surgeons.

Dr. Tsoi

27. Dr. Tsoi's examination revealed that there is no problem with straight leg raising in either leg, that there is no muscle wasting of either calf or thigh muscles, there is no muscle weakness and full range of movement in the joints. He took the view that her complaint of generalised numbness over the lower limbs was inconsistent with the film from the MRI which indicated that the prolapse was a minor one and that none of the nerve roots supplying the legs was involved. The fact that she had normal muscle power contradicted her complaint of weakness. Indeed the lack of muscle wasting in her calf and thigh indicated that she was using them to a greater extent than she purported to be able to. Although her disc prolapse should account for a certain degree of back pain, there was no explanation for why she was unable to walk unaided, bend her back freely and only lift weights of less than 5 pounds. His view was that most patients with such a mild disc prolapse without complications would, from an orthopaedic point of view, have recovered within 6 to 12 months. She would be able to resume manual work which did not involve heavy lifting.

Dr. Chiang

28. Essentially, Dr. Arthur Chiang reached similar conclusions. He was of the view that there had been satisfactory recovery from her lumbar disc prolapse. Her condition would have stabilised before July 1997 when he examined her for the second time. His view was there had been improvement in the Plaintiff's condition between January 1995 when the lumbar myelogram was performed on her and August 1996 when the MRI was performed. She should have been fit returned to work from an orthopaedic point of view within 1 to 2 years based on the MRI findings. She should have been fit to resume housework 6 months after the accident.

29. Both doctors took the view that the only residual disability from an orthopaedic point of view would be some low back pain resulting from a mild disc prolapse which meant that she should avoid manual jobs which required strenuous or continuous lifting of heavy objects.

30. There is no orthopaedic explanation for her other complaints. They classified her impairment from an orthopaedic point of view at 7%.

The psychiatric evidence

31. There was a greater divergence of opinion between the psychiatrists, Dr. Chung and Dr. Singer.

32. Both, however, were of the opinion that she was not suffering from psychotic depression which was the diagnosis of Dr. W.T. Lau of the Tuen Mun Psychiatric Centre. Indeed Dr. Singer said that he had deliberately tried to elicit symptoms of delusion or hallucination from the Plaintiff but she had denied such symptoms.

33. I accept their evidence that she is not suffering from a psychotic illness and that the explanation for the diagnosis made at Tuen Mun Psychiatric Centre is probably that advanced by Dr. Singer, namely that Psychiatrist dealings with patients in a clinical situation are likely to accept the patient's complaints at face value.

34. As I already said, both psychiatrists had no doubt the Plaintiff is exaggerating her symptoms. Dr. Singer attached significance to the fact, which I accept, that she was not merely exaggerating symptoms but fabricating them. He described it as malingering. This is significant because apparent exaggeration is often a feature of those suffering from depressive illness because of their low tolerance to pain whereas fabrication or malingering is not.

Dr. Chung

35. Dr. Chung's opinion having seen the Plaintiff in 1997 and 1999 is that she is suffering from "dysthymic disorder". He said that she suffered all the diagnostic criteria for dysthymic disorder set out in DSM 1V, the Diagnostic and Statistical Manual of Mental Disorders, 4th edition issued by the American Psychiatric Association. He conceded that because of the deliberate exaggeration of her symptoms, it was very difficult to judge the severity of her condition but having taken these matters into account, he considered her depressive condition was in the "mild to moderate" category. He said that she had always been mentally fit to resume her pre-accident work in the factory but her depressive symptoms might make her less motivated in doing her tasks and less capable of dealing with stress at work.

36. From the psychiatric point of view, she does not need nor has she ever needed domestic assistance to perform normal household duties. Because of the chronicity of her depression, he recommended a course of psychiatric treatment for 2 years costing $50,000.00. He considered that even after treatment she would probably be an unhappy person for years to come.

Dr. Singer

37. Dr. Singer's opinion having also seen the Plaintiff in 1997 and 1999 was that she was at most suffering from a borderline depressive disorder; In other words, on the borderline between what he described as normal and abnormal depression. His view that she was on the borderline of a depressive disorder which he would classify as "depressive disorder unspecified" under the classification in DSM 1V rather than dysthymic disorder.

38. While he said that the Plaintiff was on the borderline, I formed the impression that he regarded the Plaintiff as being on the abnormal side of the border because he said that the end of litigation might well be enough to put her on the normal side. He said that because her condition was borderline, she would not need a long course of treatment and that a course of psychiatric treatment of 3 months after the conclusion of litigation would help her rehabilitate herself to a normal lifestyle. He put the cost of such a course at $12,000.00.

39. The question for this court is not whether as a result of the accident the Plaintiff has become depressed. Both doctors agreed that she has. What they disagree about is the extent of that depression; and in particular whether it has progressed significantly beyond the normal range of depression that the person might feel after having sustained an, at least temporarily, painful and disabling accident to what can be classified as a depressive illness, whether that illness be called "dysthymic disorder" or "depressive disorder unspecified", the effect of which might be permanent.

40. The doctors have had to make their diagnosis on a patient who is not merely exaggerating symptoms but fabricating them. In this factor that has led two highly experienced psychiatrists to different conclusions.

41. It may well be that Dr. Chung is right when he diagnoses the Plaintiff as suffering from mild to moderate dysthymic disorder, but in light of the difficulties brought about by the Plaintiff's own deliberate lack of frankness about her symptoms - lack of frankness unconnected with any depressive disorder - I am unable to say that his diagnosis is any more probable than Dr. Singer's diagnosis of borderline depressive disorder.

42. For the purpose of compensation, therefore, I must regard the Plaintiff from the psychiatric point of view as a person who has taken the effects of the accident badly to the extent of suffering significant chronic depression which is only on the borderline of a depressive order. A 3 months course of treatment to rehabilitate her costing at $12,000.00 would be reasonable. From the orthopaedic point of view, she has suffered prolapse of the L4/L5 disc. Although initially there might have been some nerve root compression which resulted in pain, weakness and numbness in her lower limbs that had resoled itself 20 months after the accident by the time she had an MRI, leaving her now with some low back pain. She will have to avoid work and activities which involve lifting heavy weights.

43. I find that the Plaintiff's injuries fall short of the serious injury category in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. I am satisfied that $300,000.00 is the appropriate level of damages under this head.

Loss of earnings

44. Even Dr. Chung took the view that the Plaintiff has always been mentally fit to resume her pre-accident employment. Any inability to work has therefore been as a result of her orthopaedic disability. She has received continuous sick leave certificates since the day of the accident but Dr. Arthur Chiang said that she would have been fit to return to work from an orthopaedic point of view, 1 to 2 years after the accident. I consider that reasonable.

45. I accept Mr. Yau's calculations that the Plaintiff's average monthly earnings in the 12 months prior to the accident were $9,985.00. That is arrived at by taking into account her performance and annual bonuses and the Plaintiff's share of the provident fund contributions which at that stage had vested in her.

46. A table of earnings of two other grade 3 technicians over the ensuring 3 years was produced for comparison. It suggests that a worker at that level could have expected little if any pay rise in the years 1995 and 1996.

47. For the purposes of the claim for loss of earnings, I accept that the period of 2 years sick leave was reasonable and the Plaintiff's monthly earnings would have amounted to $9,985.00. As a result of the accident, the Plaintiff has, therefore, lost $9,985.00 per month over 24 months, $239,640.00.

Future loss of earnings

48. Although the Plaintiff would not have been able to resume employment in a job requiring heavy lifting, I do not find that her work with the Defendant did involve heavy lifting. Dr. Danny Tsoi said that he would not even regard a job that required normal workers to lift as much as 10 kgs as being one which he would classify as requiring heavy weight lifting.

49. The individual circuit boards in this case were only approximately 1 1/2 pounds each. There was no requirement for her to lift any particular number of boards at any one time. I find that she was capable of resuming her pre-accident employment after 2 years if it had been available to her. I dismiss the Plaintiff's claim for loss of future earnings.

Loss of earning capacity

50. I find, however, the accident may well have reduced her earning capacity by reason of a number of factors including the fact that she might need to take time off work for medical treatment should she for instance experience more problems with her back and the fact that a narrower range of jobs would be available to her when she found herself in the labour market, particularly if her potential employers were aware of her orthopaedic condition. I regard a figure of $100,000.00 as reasonable under this head.

Hire of domestic helper

51. The Plaintiff did not require a domestic helper as a result of her psychiatric condition (see evidence of Dr. Chung). She would have been fit to resume housework after 6 months (see evidence of Dr. Chiang). She is entitled to the wage of a domestic helper for 6 months at $2,500.00 per month. It costs $15,000.00.

Past Expenses

52. The Plaintiff claims $8,556.00 in respect of medical expenses, $31,316.00 in respect of travelling expenses, $1,345.00 in respect of medical equipment, $33,900.00 in respect of tonic foods. These claims are agreed. They total $75,117.00.

Future medical treatment

53. In accordance with Dr. Singer's recommended course of treatment, I consider $12,000.00 appropriate under this head.

Future travelling expenses

54. Dr. Singer did not specify the number of sessions which would be required for the 3 months treatment. I have assumed that there would be at least 6 sessions and that they would be in Central. Based upon return taxi fare of $300.00 from Tuen Mun, I consider $1,800.00 under this head appropriate.

As a result to the above, I quantify the Plaintiff's loss as follows:

Pain, suffering and loss of amenities	$300,000.00
Loss of earning capacity	$100,000.00
Future medical treatment	$12,000.00
Future travelling expenses	$1,800.00
Special damages
Loss of earnings	$239,640.00
Past travelling expenses	$31,316.00
Past medical expenses	$8,556.00
Medical equipment	$1,345.00
Tonic food	$33,900.00
Wages of domestic helper	$15,000.00
Total	$743,557.00

55. The Plaintiff is entitled to 80% of that sum namely: $594,845.00 less the sum of $335,917.00 she has received as employees compensation. Accordingly, I give judgment for the Plaintiff for $258,928.00. The Plaintiff is also awarded interest on damages for pain, suffering, loss of amenities at 2% from the date of service of the writ until today and thereafter at judgment rate until payment and interest on special damages at 5.63% from the date of the accident until today and thereafter at judgment rate until payment.