LAU KEI HIN IVAN v. WING KAI BUILDING MATERIALS LTD

HCPI 744/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 744 OF 2004

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J U D G M E N T

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1.  The Plaintiff claims damages for personal injuries sustained by him when he slipped and fell while working in the defendant’s warehouse at Lau Fau Shan, New Territories, Hong Kong (“the Premises”).

2.  The claim is brought against the defendant being the employer of the plaintiff at the time of the accident and also the defendant, being occupier of the Premises at the time of the accident, owed a common duty of care to the plaintiff.

Plaintiff ‘s evidence of the accident

3.  The plaintiff was employed as a warehouse keeper by the defendant and started work on 11 May 2001.

4.  The plaintiff is single and was aged 28 at the time of the accident.

5.  The plaintiff’s main duty was to collect, count, select, classify and pack building materials (such as tiles) as per customers’ orders.  Sometimes he would also be asked by his supervisor to clean the warehouse and generally clear the rubbish.

6.  On September 11 2001, at about 1:30 p.m., while working at the Premises, the plaintiff’s supervisor, Mr. Au Yeung Kwok Tin (called by the defence as a witness) had asked him to select and pack tiles as per a customer’s order

7.  The plaintiff says he first placed his tools on the floor and then swept away the plastic ropes on the floor.  He then turned his body to see if there were any forklift trucks before walking towards some “bottom boards” placed about 15 feet away.

8.  As the plaintiff was turning, he said he slipped and fell onto the floor.  There were rubbish, sand and stones covering the floor.  The plaintiff said he twisted his back and sprained his right ankle and could not stand and he shouted for help.  With the assistance of his colleagues he was subsequently taken to Tuen Mun Hospital.

9.  The plaintiff said the reason that the floor of the warehouse was covered with sand and stone was because the road leading to the warehouse was broken in places and the sand and stone were brought into the warehouse by the forklift trucks and workers’ shoes.  Also since the doors of the warehouse were left open all day the wind would also blow there sand & stone into the warehouse.  At places, the floor was also broken by the weight of the forklift trucks. 

10.  The plaintiff identified the place he fell as shown in Photograph 17, with a circle.  He said that the place was particularly sandy because the workers used the air-jet machine shown in the photograph to clean their shoes.

11.  In court, the plaintiff described his fall thus:

“I picked up something & threw it into the garbage box.  I got up and as soon as I turned I fell.  I was turning to my left.  I stepped on something slippery with my left foot, my pelvic bone went down and my body fell on my right ankle breaking it.”

12.  The plaintiff said he was told at Tuen Mun Hospital that he had suffered a fracture of his right distal fibula and was subsequently operated on and discharged from hospital on September 28^th 2001.  He attended out-patient follow up after his discharge.

Cross-examination

13.  Under cross-examination, the plaintiff was reluctant to admit he was required to clean the warehouse as part of his duty but he finally agreed that he would do so only when his superior Mr. Au Yeung told him to do so and that cleaning the floor with brooms and shovels was part of his duty together with his co-workers.

14.  The plaintiff was also evasive about whether he had used a broom to sweep the area where he fell, he vacillated between just using his hands to pick up the plastic bands/ropes and sweeping, even though he had said in his statement, which he had adopted as true, that he “swept away” the plastic ropes/bands. 

15.  He denied that he had told his supervisor Mr. Au Yeung that he had used his foot to sweep away the rubbish and slipped and fell.  

Evidence called for the Defence

16.  The first defence witness was Mr. Au Yeung, the chief warehouse officer and supervisor of the plaintiff.  He has worked for the defendant for more than 12 years.

17.  He did not see the accident but when he subsequently visited the plaintiff in hospital, the plaintiff had told him that he was using his foot to clean up the trash on the ground when he lost his balance and fell, but Mr. Au Yeung added that be doubted the plaintiff’s allegation because he had noticed no trash on the ground in the area where the plaintiff had been injured.  I note that the plaintiff in cross-examination had denied he had ever told Mr. Au Yeung the above.

18.  In cross-examination, Mr. Au Yeung agreed there were sand, pebbles, broken concrete in the warehouse but he said not in the area where the plaintiff fell as he had already cleaned it, although he agreed there may still have been some sand and pebbles remaining.

19.  Mr. Wong Fu Keung was the second defence witness called, and he was a forklift truck driver working for the defendant at the material time.

20.  After the accident, he had accompanied the plaintiff to the hospital and he said that when the doctor asked the plaintiff how he got injured, the plaintiff was unable to describe how he got injured.

21.  Mr Wong said he often saw the plaintiff about a year after the accident in the supermarket near his home and noticed that the plaintiff was carrying groceries and watermelon and was walking normally without the aid of crutches. (The plaintiff’s case is that he still needed the aid of crutches even at the time of trial.)

22.  Mr. Chan Tat Fai, the last witness for the defence was also a warehouse keeper working for the defendant at the material time.

23.  He basically said that he would sweep the floor and pick up the rubbish whenever he saw any, without needing to be told to do so by the supervisor.  He also said it was normal to have sand and pebbles in the warehouse and it was not dangerous.

FINDING OF FACT

24.  It is not disputed that the warehouse is located at the end of a muddy and at places unpaved road and that the floor of the warehouse gets easily covered by rubbish, sand and stone.

25.  I accept that it is the duty of the workers in the warehouse including the plaintiff to sweep the floor as and when necessary.

26.  I find as a fact that on the day of the accident the area where the plaintiff fell had been swept by him prior to the accident.

27.  I also find as a fact that the plaintiff told Mr. Au Yeung the truth when he said that he was using his foot to clear the rubbish when he lost his balance and fell.

LIABILITY

28.  The case for the plaintiff as pleaded and particularized was that the defendant:

(a)     was negligent in not providing a safe place of work for the plaintiff;

(b)    that the defendant was in breach of common duty of care under the Occupiers Liability Ordinance.

29.  The plaintiff also relied on the doctrine of res ipsa loquitur.

30.  Counsel for the plaintiff relied on the fact that no cleaners were employed to clean the warehouse and the doors were kept open all day thus allowing a build up of debris and sand thus causing the floor of the warehouse to be slippery.

31.  It is common ground that the plaintiff knew the warehouse floor was always covered with such sand and debris and the plaintiff admitted (although with some reluctance) that prior to the accident he had swept his work area.

32.  There is no evidence from the plaintiff that the condition of the floor of the warehouse was any different on that particular day from other days.

33.  The plaintiff knew the floor was always covered with debris and gravel and rubbish and I accept Mr. Chan Tat Fai’s evidence that it was the warehouse keeper’s job to clean or sweep the area as and when necessary.

34.  I fail to see how this accident came about due to any lack of a safe system of work. 

35.  The plaintiff was well aware of the condition of the floor and in my view this was an accident which came about solely due to the plaintiff’s own negligence when using his foot to clear the debris instead of using a broom.

36.  Further, I do not accept that the doctrine of res ipsa loquitur apply in this case.  The plaintiff has failed to prove to me that there was anything on the floor which ought not to have been there and thus caused him to slip and fall.

37.  The plaintiff was a poor witness.  He was evasive in his evidence and in cross-examination contradicted his own witness statement particularly he denied that he had ever been asked to clean the warehouse but finally had to agree that was not the case when he was referred to his statement.

38.  The plaintiff also claimed he still needed crutches to walk even at the time of trial but this is not supported by the medical evidence as the experts in the joint orthopaedic report agreed that the fracture had healed satisfactorily and the plaintiff’s claimed inability to stand or walk without crutches were “inexplicable”.

39.  I found the plaintiff to be a totally discredited witness.  He was not believable and not reliable as a witness.

40.  In all the circumstances of this case I do not find that the defendant was in any breach of any of its duties to the plaintiff as an employer or an occupier and was not negligent to the plaintiff by reason of this accident.

41.  Accordingly the plaintiff’s claim is dismissed with costs (being a costs order nisi) to be taxed if not agreed.  The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

42.  In the event that I am wrong in my conclusions on liability, I shall go on to deal with the question of quantum.  In doing so I shall assess quantum theoretically on the basis of full liability.

QUANTUM

Injuries and treatment

43.  The plaintiff was aged 28 at the time of the accident and 33 at trial.

44.   On the day of the accident the plaintiff was admitted to Tuen Mun Hospital and found to have sustained a right ankle fracture.  He had an operation on 16 September 2001 and discharged on 28 September 2001 with follow-up arranged.

45.  On 28 November 2001, the plaintiff was found to be able to tolerate full-weight bearing walking.

46.  The plaintiff’s evidence that he was unable to walk without the aid of 2 crutches is not borne out by the evidence of the doctors in the joint orthopaedic reports who opined that there was no reason for the plaintiff’s continued use of crutches.  Both doctors also said that the plaintiff could resume his pre-accident occupation as a warehouse keeper and there was no need for job restriction or a change of job.  Finally, the doctors agreed a sick leave period of 9 to 15 months was reasonable.

47.  I agree with defence counsel’s submission that the plaintiff has exaggerated his disabilities.  This is not only supported by the orthopaedic assessment but also by the evidence of Mr. Wong Fu Keung (DW 2) that he saw the plaintiff carrying groceries and walking unaided almost a year after the accident.

48.  I accept Dr. Singer’s opinion that the plaintiff had possibly suffered a mild depressive symptom which would not have prevented him going back to his pre-accident job.  I have no doubt that considering all the evidence before me that the plaintiff was grossly exaggerating his psychiatric symptom.

49.  I accept Dr. Singer’s opinion that the plaintiff should only be entitled to 3 months’ sick leave as a result of his mild depression caused by the injury he had suffered.

Pain, suffering and loss of amenities

50.  As I have no hesitation in accepting the orthopaedic evidence and Dr. Singer’s opinion and after considering the local awards cited to me in submission by counsel, I would have assessed the damages for pain, suffering and loss of amenities at $300,000.

Loss of earnings (pre-trial)

51.  It is agreed between the parties that the plaintiff’s average monthly income was $9,000 inclusive of overtime payment and pro-rata year end bonus but exclusive of the employer’s 5% MPF contribution.

52.  I accept the orthopaedic doctors’ opinion that the plaintiff is entitled to no more than 15 months sick leave and Dr. Singer’s opinion that the mild depressive symptom that the plaintiff suffered would only entitle him to 3 months’ sick leave.

53.  As I have said, I accept the medical evidence that the plaintiff could return to his pre-accident employment after that period.  I would therefore assess the pre-trial loss of earnings at $162,000 ($9,000 x 18 months).

54.  I would also assess the loss of MPF to the plaintiff for the pre-trial period to be $9,000 x 5% x 18 which gives $8,100.

Loss of future earnings

55.  Accepting the medical evidence there is no future loss of earnings.

Loss of earning capacity

56.  There will be no loss of earning capacity as there does not appear, on the evidence, that there is a substantial risk the plaintiff will lose his present job or that he could have difficulty getting a similarly paid job.  (SeeMoeliker v A Reyrolk & Co. Ltd. [1977]1 WLR 132 at 142 A-C).

Special damages

57.  This is agreed between the parties at $19,153.00.

Future psychiatric/medical treatment

58.  This is also agreed between the parties at $25,000.

Summary

Contributory negligence

60.  I have found that the defendant is not liable to the plaintiff for the injuries suffered but in the event that I am wrong and it is found that the employer should have caused more stringent rules to be made with regard to the cleaning of the warehouse, I would assess the contributory negligence at 50% as the plaintiff was well aware of the working environment and he should not under the circumstances have used his foot to clear the rubbish thus negligently causing his fall.

Interests

61.  Interests for general damages for PSLA at 2% from the date of the Writ.

62.  Interest for special damages and for loss of pre-trial earnings will be at 4% p.a. from the date of the accident.