LIU SHUI BIK v. COUNTFORTUNE LTD AND ANOTHER

HCPI 60/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 60 OF 2008

____________

BETWEEN

____________

__________________

J U D G M E N T

__________________

Introduction

1.  Mdm Liu was born in the Mainland in 1955, and came to Hong Kong in 1973. She married in 1985, and has four children now aged between 18 and 24. She and her husband divorced in 2004.

2.  Mdm Liu’s husband was working on a construction site in Au Tau, Yuen Long, in 2005. He introduced Mdm Liu to work on the site in June 2005. She reported for duty on Thursday 2 June 2005.

3.  Mdm Liu was employed as a vehicle cleaning worker. Her task involved being located at the entry/exit to the site where she was required to record the time and registration number of each vehicle that entered the site, and as the vehicle departed the site, to clean the wheels of that vehicle with water from a hose. She was also required to record the departure time of the vehicle. The work was relatively light work and suited her admirably.

The accident:

4.  On her third day of work, Saturday 4 June 2005, there had been heavy rain. Sand and gravel had been washed down from a hillside on the building site, into a conduit drain in an area adjacent to the construction site. The drain is a well-established concrete drain, 2 feet deep, and is covered by removable heavy concrete slabs approximately 2 feet square. Apparently in anticipation that sand and gravel would be washed into the drain from the building site, sandbags had been placed in the drain to prevent that sand and gravel washing into a manhole, but at the same time, to allow water to seep through and drain away.

5.  At around 3 p.m. on Saturday 4 June 2005, Mdm Liu’s foreman, Mr Fung Ka Lun arrived at the site and noticed that because no vehicles were entering or leaving the site Mdm Liu had no work to do at that time. He required her to accompany him to inspect the conduit drain. He instructed her that as she had no work to do in relation to vehicles she should clear the sand and gravel and debris from the drain.

6.  Mr Fung was not called to give evidence, and to that extent Mdm Liu’s evidence was not challenged. Mr Charles Wong, for the Defendants has cross-examined Mdm Liu skilfully and carefully, but notwithstanding that cross-examination, I accept the whole of Mdm Liu’s evidence.

7.  The Mdm Liu said that Mr Fung showed her how it was necessary to lift the concrete slabs, and to remove the sandbags in order to clear the sand and debris from the drain. Mdm Liu protested this instruction pointing out that this was not the job that she had been employed to undertake. She said that she told Mr Fung that if the work had to be done more people had to be assigned to the task to enable the lifting of the slabs and sandbags and the clearing of the drain. Notwithstanding that protest, Mr Fung required Mdm Liu to undertake the work by herself. Her evidence, which I accept, was that she was afraid that she would be sacked if she refused and felt that she had no choice but to undertake the work.

8.  As the afternoon progressed she removed between seven and eight drain cover slabs and some 15 sandbags. The estimate was that the drain cover slabs each weighed in the order of 38 kg, and the sandbags some 15 kg. She worked until 4:30 p.m. when she began to feel pain at her waist. She was advised by a person who lived nearby that she should apply liniment from a bone setter at home after work.

9.  She ceased lifting the drain cover slabs and sandbags, cleaned up the work area, and went off duty at 6 p.m..

10.  On the next day, Sunday, 5 June 2005, she applied liniment to her back, as she had been advised, and rested in bed for the whole day.

11.  On Monday, 6 June 2005, although still feeling some pain, Mdm Liu went to work, expecting to be able cope with the duty of washing vehicles which she had described as “rather light work”. However on arrival at work she received a telephone call from Mr Fung, who instructed her that she was to continue to clear the drain. She asked if she was the only person to do the work, and he said she was, and she must do it quickly. Again she was afraid to refuse the instruction for fear of losing their jobs.

12.  Mdm Liu resumed work and found that the pain became worse. As she was concerned to keep her job, instead of lifting the drain slab covers, she manoeuvred them into a vertical position and stood in the drain with her back against the slab to prevent it falling. She worked until 8:30 a.m., by which time the pain had spread to her right leg.

13.  She then telephoned Mr Fung telling him that her waist was painful and that she needed to go to a doctor. Mr Fung said that he would send other people to do the clearing work, but gave no other instructions. Although she was not given any assistance at all, Mdm Liu made her way to Pok Oi Hospital.

The medical consequences of the injury:

14.  On examination Mdm Liu was found to suffer tenderness and muscle spasm over her right side and lower back region with a decreased range of movement. A medical report from the Outpatient Clinic confirms that the findings upon examination were compatible with the history of the injury given by Mdm Liu. She was placed on sick leave until 15 June 2005, that sick leave being extended upon further examination on 16 June 2005.

15.  Mdm Liu suffered persistent pain and was referred to the Orthopaedic Clinic at Alice Ho Miu Ling Nethersole Hospital at Tai Po. She was admitted and stayed as an inpatient for 17 days. An MRI scan on 23 March 2006, 10 months after the accident, demonstrated a mild prolapse at the L5/S1 level. In a joint medical report prepared by orthopaedic surgeons instructed by each side, the surgeons were agreed that the present physical impairment of Mdm Liu, from orthopaedic consideration was 8% whole person impairment of the whole body.

16.  Regrettably, Mdm Liu suffered psychological and psychiatric issues following the accident. A joint report by psychiatrists instructed by each side resulted in the joint opinion that Mdm Liu suffered from a depressive episode in reaction to the stresses related to her accident, the physical symptoms after the accident, and the associated psychosocial stresses and conflicts related to her circumstances.

17.  It was the joint opinion of the psychiatrists that Mdm Liu suffers mild impairment of activities of daily living and social functioning consequent upon the psychiatric condition.

18.  The joint opinion of the psychiatrists was that she was receiving proper psychiatric and psychological treatment in the public sector but that there may be a need for her to be provided with a short course of more intense psychological treatment in the private sector in order to better understand her condition. The course of five sessions of psychological therapy was recommended to be provided after the conclusion of the litigation. The cost of that therapy is $10,000.

Liability:

19.  I am in no doubt at all that the system of work provided to Mdm Liu to carry out the task with which she was entrusted was unsafe. It was quite wrong of Mr Fung to require a slightly built woman to lift, by herself, the very heavy concrete slabs covering the drain. A safe system of work would have provided either appropriate equipment to lift the slabs, or additional labour. Neither was provided. As a direct result of lifting those slabs Mdm Liu suffered a back injury resulting in her present condition.

20.  The 1^st Defendant as her immediate employer, and the 2^nd Defendant as the principal contractor, must be liable in negligence and breach of statutory duty for failing to provide a safe system of work and a safe place of work.

Contributory negligence:

21.  Mr Charles Wong contended that there was a substantial element of contributory negligence on the part of Mdm Liu. He said that this came in two areas. First, she should have sought medical care immediately after work on 4 June 2005, and not gone back to work on 6 June 2005. Second, he said she should have informed Mr Fung of her back pain and refused to continue with the drainage clearing work.

22.  Mr Charles Wong relied upon three authorities, Cole v English Abrasive Company [1965] CLY 2651 (QBD 2 December 1965), Cork v Kirby Maclean Ltd [1952] 2 All ER 402, and Choi Ying Chi v Loyal Engineering Ltd, unreported, HCPI 53/2006, 25 September 2007, Suffiad J.

23.  In each of those cases the plaintiff was fully aware of the physical limitations they were under prior to the accident. Each failed to notify their employer of those limitations and went about their work as normal. The factual situations are a very long way away from those of Mdm Liu. It cannot be said in any way that the extent of the knowledge she had her condition approached that of each of the plaintiffs in the three authorities.

24.  In particular, in each of those cases, the plaintiff had learned of his physical limitation through medical advice and some time prior to the circumstances leading to the subsequent injury. In the present case, Mdm Liu did not have, nor could have, two days after lifting the slabs, any proper insight into the damage that she had cause to her back. Being quite unaware of the reality of the situation, no blame can lie upon her for failing to notify her employer of any physical limitation she might be under.

25.  Further, proper regard must be had to the circumstances of an employee who fears termination of employment if they refuse to undertake a task or complain about that task.

26.  In the whole of the circumstances I am satisfied that it cannot be said that Mdm Liu was in any way at fault in going about her work as she did. I accordingly find that there is no element of contributory negligence.

The consequences of the psychiatric overlay:

27.  It is plain from the psychiatric report that Mdm Liu’s personal circumstances rendered her much more liable to suffer psychiatric symptoms consequent upon injury, it might be the case of other persons in the community. That pre-existing predilection does not release or relieve the Defendants in any way from liability. It is well established that a defendant must take the victim as they find them.

28.  I am satisfied from the psychiatric report that the accident was a contributing factor to Mdm Liu’s present psychiatric condition, and that that condition must be taken into account in assessing damages.

The surveillance tape:

29.  I have viewed a surveillance tape showing Mdm Liu walking in the street and going about some daily tasks outside her home.

30.  The tape illustrates Mdm Liu walking both with a quadrapod walking stick, and using an umbrella as a walking stick. It is quite plain that she is unaware that she is being filmed. Her walking is laboured and slow and it is clear that she uses both the quadrapod and the umbrella for support. It is proper to describe her use of both the quadrapod and the umbrella as support, and not merely to say that she is carrying them.

31.  Although she is able to carry a small wheeled shopping bag up a short flight of stairs leading to the lift lobby at her home, she does not do so with the ease and agility of a person not suffering from any injury.

32.  It is right that the surveillance tape shows Mdm Liu going about her normal daily tasks, but to my view it was a person with some difficulty, although not a person suffering from what might otherwise be described as incapacity. Having considered the content of surveillance tape I am of the view that her actions in choosing to stand from time to time when giving evidence, or when watching the court proceedings, were genuine actions, and not contrived to elicit sympathy. I am satisfied that Mdm Liu is not exaggerating her symptoms.

PSLA:

33.  In the usual way both parties presented me with a number of comparative cases. I have reviewed those. Mr Charles Wong contended for PSLA at between $200,000 and $250,000. Mr H Y Wong argued for $500,000.

34.  Back injuries resulting in a prolapsed disk are painful, restricting, and interfere significantly with the normal enjoyment of life. That condition is aggravated when a patient is a psychiatric overlay, and suffers depression as that tends to exaggerate and extend the duration of the symptoms. As I have noted above, Mdm Liu’s need to alternately sit and stand is, I believe, genuine. That is evidence of a continuing level of pain and discomfort.

35.  Weighing all of the relevant factors, and having regard to the comparative cases submitted by counsel, I fix PSLA at $450,000.

Pre-trial loss of earnings:

36.  Mr H Y Wong argues for 57 months pre-trial loss of earnings contending that although Mdm Liu’s sick leave expired in 2007, her age and the psychiatric symptoms have restricted her from returning to work.

37.  Mr Charles Wong argues that there being evidence of exaggeration the full period of 26 months that Mdm Liu was on sick leave should not be credited to pre-trial loss of earnings. He argued that as the joint orthopaedic experts assessed 12 months sick leave as being appropriate for a sprain injury, only that period should be allowed.

38.  I have rejected the concept of exaggeration in this case. Having regard to the psychiatric overlay, which I am satisfied was stimulated by the accident, the pre-trial loss of earnings period must be assessed at greater than 12 months, as the orthopaedic surgeons have not taken that aspect into account.

39.  Balancing all the relevant factors, I fix the period for pre-trial loss of earnings at 36 months. Pre-trial loss of earnings are fixed at $9,100 x 36 = $327,600. The past loss of MPF is $327,600 x 5% = $16,380.

Future loss of earnings and MPF:

40.  Mdm Liu is not totally incapacitated by the accident, and, if suitable work could be found for her, I am satisfied that she could return to work. In May 2004, prior to the accident, she found work as a part-time domestic helper, or a shop attendant, from which she was able to earn something in the order of $4,300 a month. She would be able to undertake that work even now, bearing in mind the extent of her disability. Mr H Y Wong submits that she suffers from partial loss of earnings of $4,800 per month, being her monthly income when employed by the 1^st Defendant of $9,100, less $4,300. I accept that submission.

41.  Mdm Liu is aged 53. Mr H Y Wong argues for a multiplier of six. I agree. I assess future loss of earnings at $4,800 x 6 x 12 = $345,600. Future loss of MPF is accordingly $17,280.

42.  I accept Mr H Y Wong’s submission that there should be no deduction on account of Mdm Liu’s pre-existing back condition. The Defendants must take the Plaintiff as they find her.

Loss of future earning capacity:

43.  Loss of future earning capacity was conceded, sensibly, by Mr Charles Wong, and is fixed at $50,000.

Special damages:

44.  Mr H Y Wong sensibly moderated a claim for tonic food of $40,000 to $5,000, and on that basis, Mr Charles Wong equally sensibly agreed the balance of the special damages. Special damages are accordingly fixed sum of $26,053.

Interest:

45.  The Defendants must pay interest on the PSLA at the rate of 2% per annum from the date of the writ to judgment, and at half the judgment rate on the pre-trial loss of earnings and MPF, and other items of special damages, excluding future psychological treatment of $10,000, from the date of the accident to the date of judgment.

Costs:

46.  The Defendants must pay Mdm Liu’s costs to be taxed on a party and party basis. If required, there will be an order that Mdm Liu’s own costs be taxed in accordance with Legal Aid Regulations.