PANG WAI HUNG v. MPC EXPRESS SERVICES CO

1995, No.P.I.1093

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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Facts

1. The Plaintiff was an employee of the Defendant and worked as a courier. On 8th January 1991, which was 4 weeks after he had taken up employment with the Defendant, the Plaintiff was in the office of the Defendant. He was reporting to a supervisor when another supervisor, Mr Kwai called him from behind. As he turned and walked towards Mr Kwai, he was tripped by some empty bags which were used by the couriers and placed on the side of a passageway. He fell, hit his face on the floor and as a result lost a number of his teeth.

2. The Defendant agreed that the Plaintiff fell but denies that he was tripped by the bags. The Defendant's case is that the bags were not placed on the floor but were rather put underneath a desk or on some shelves.

Plaintiff's evidence

3. The Plaintiff was born on 22nd August 1968. At the time of the accident he was 22 years of age. He is now 27. He received education up to the Form five level. He is not an articulated man and he has problems with describing simple matters in his evidence. But judging from the nature of his evidence and his demeanour, I am satisfied that he is a truthful witness. I am satisfied with his evidence that the bags were placed along the corridor which obstructed the user and he had tripped over one of the bags which caused him to fall down.

Defendant's evidence

4. Mr Kwai of the Defendant said that the Plaintiff had, for no apparent reason, fallen down after the Plaintiff had walked past him in the corridor. He had previously provided information, upon which the defence was based, that the Plaintiff had washed in a basin which caused water to be splashed onto the floor and the Plaintiff fell because he had not taken precaution when he walked on the wet floor. Mr Kwai now conceded that the Plaintiff did not wash in the basin.

5. What he said about the Plaintiff washing in the basin was astounding. This is not a case of a witness forgetting about some events, he was actually providing information on something that did not happen. I just cannot accept Mr Kwai as a credible witness.

Termination of agreement

6. The Plaintiff's employment was terminated by the Defendant in November 1992. It was suggested that the present case was brought as a means of revenge by him. It was said between the day of the accident and his termination of contract he had never complained to the Defendant or reported the accident to the Defendant. I find such suggestion absurd. Mr Kwai was present at the time of the accident; the Plaintiff was taken to the hospital by another supervisor and Mr Kwai had informed Mr Wan, the proprietor, of the accident afterwards. One may ask what is there to report in such circumstances?

7. I further accept the Plaintiff's evidence that he had approached the Labour Department after the accident which advised him that the matter had to wait for the notification by the employer of the accident.

8. Evidence was called about the misconduct of the Plaintiff in his work. It was suggested that he made false entry in the delivery receipt. The matter was not pleaded in the defence and was only first raised in the witness statement of Mr Kwai. The Defendant has simply not established that the so-called false chop was put there by the Plaintiff. Furthermore, I accept the Plaintiff's evidence that he was paid one month wage in lieu of notice at the time of the termination. In any event, the termination of the Plaintiff's employment has no bearing on the accident.

Employer's duty

9. The duty of a employer to provide a safe place of work is well established. Its duty is to make and keep the place safe so far as reasonably practicable. I accept the Plaintiff's evidence that the bags were put at the spot described by him and not on the tables or shelves. The bags obstructed the passageway and posed a hazard to the users of the corridor. I find that the Defendant had failed to provide a safe place of work for the Plaintiff.

Contributory negligence

10. It was said that the Plaintiff was contributory negligent. In deciding on this issue, all the circumstances of the case must be considered. The cases said that the question is whether the Plaintiff had acted reasonably in taking a risk. It was submitted that he ought reasonably to have foreseen that he might hurt himself and he must take into account the possibility of others being careless.

11. There is no question of the Plaintiff taking any risk in this case. He was simply moving in the office when he was tripped by a bag or bags on the floor which caused him to fall. He was responding to the call of a supervisor. In the circumstances, is the employee expected, when he turned around, that he should make sure that his foot would not step onto or come into contact with the obstacles on the floor? The answer must be no. It is a question of inadvertence and not contributory negligence.

Pain, suffering and loss of amenities

12. The Plaintiff lost the upper right central, lateral incisors and canine and the lower right central incisor. Two other teeth were chipped. Another tooth, namely, the upper left central incisor has, according to Dr Bong, suffered pulpal death. There is a laceration on the lower chin which has healed and there is a scar which is noticeable at close distance.

13. In Cheung Lap Yan v. Siu Ching Kee (High Court Action No.A1462 of 1979), a woman had 4 teeth with fracture crowns and 2 had cracked crowns. Two teeth were extracted and reconstructed with porcelain crowns. She also suffered facial injuries. Pain, suffering and loss of amenities at $45,000 was awarded. The decision was given on 14th June 1982.

14. Miss Lam submitted that pain, suffering and loss of amenities is at $60,000 to $70,000. She referred me to a number of cases namely, Law Hing v. Leung Tin Kan [1989] 1 HKC 572, William Tse Wing Sum v. Kowloon Motor Bus Co. Ltd. (High Court Action No.898 of 1978), Ho Kwai Loy v. Leung Tin Hong (Civil Appeal No.62 of 1977), Luk Bik Yu v. Fong Wing Fook (High Court Action No.2819 of 1976).

U. K. Guideline

15. In the Guidelines for the Assessment of General Damages in Personal Injury Cases of the U.K. Judicial Studies Board 2nd Edition, the damage for the loss of teeth is discussed. It is stated in the Guideline that in these cases there would generally have been a course of dental treatment, the amounts awarded will vary as to the extent and discomfort of such treatment. Costs incurred to the date of the trial will, of course, be special damage but it will often be necessary to award a capital sum in respect of the cost of future dental treatment.

(i) The loss of one front tooth ￡1,000 to ￡1,500;

(ii) Loss of two front teeth ￡1,750 to ￡2,250;

(iii) Loss of or serious damage to several front teeth ￡3,500 to ￡4,500;

(iv) Loss of or damage to back teeth : per tooth ￡500 to ￡750.

16. In respect of facial disfigurement, for male, trivial scaring where the effect is minor only is ￡750 to ￡1,250.

The award

17. The Guidelines provides a useful indicator as to the range of damages to be awarded. The appropriate figure for PSLA in this case for the damage to the teeth is, in my view, $70,000 and the facial scar is $10,000.

Treatment

18. Dr Bong recommended root canal therapy of the tooth No.21 and a gold-bonded porcelain 8-unit bridge for teeth Nos.15 to 23 to restore the functional and aesthetic nature of the teeth. The fee is $90,750.

19. The medical services provided by the Hong Kong Government do not include dental treatment . The operation must be done privately.

20. I accept Dr Bong's evidence that the bridge is a better alternative to denture. The cost of denture is between $5,000 to $20,000 depending on the material used. The disadvantage of having denture is that it affects the speech; it affects the chewing ability; and it affects the gum conditions in that the gums are easily infected. The fixing of the denture will involve the stripping of the gums as well. Denture will require to be replaced every 4 to 5 years, whereas the bridge can be used for up to 10 years.

21. The Plaintiff is now 27 years of age, I would have thought that he would require at least 4 replacement of the bridge. The Plaintiff is only asking for 3 sets of costs for the replacement of the bridge. The original claim is the costs of $75,000 which is the figure given by Dr Bong in his first report. The Defendant said that it is unfair to allow the Plaintiff to claim 3 sets. It was argued that if the Defendant had known that the Plaintiff was seeking more than one set of bridge, it might have dealt with the matter in a different way by, for example, calling expert evidence in this regard.

22. I just cannot accept this argument. If expert evidence was required, it would have been served pursuant to the order in September 1995. The duration of the bridge was dealt with by Dr Bong in his evidence. The Defendant had canvassed with him the duration of the denture. The Defendant's Answer to the Schedule of Damages which was only filed on the second day of the trial proceeded on the basis that the denture would need to be replaced as well.

23. I think in the light of evidence of Dr Bong, it could not be right that only one set of bridge is ordered. The costs I would allow is $90,750 x 3 = $272,250.

Denture

24. An issue was taken whether the Plaintiff has been wearing a denture. He said he has not. Dr Bong said that he could not remember clearly although his first report referred to the denture. While the Plaintiff was examined again recently, there was no evidence of gum stripping which is associated with the use of denture. During the evidence of Dr Bong, no one had drawn his attention to his first report which referred to the denture. Even if the Plaintiff had the denture at one stage, I just cannot see how that would affect his claim. He is not claiming the cost of the denture that he had used before. Certainly his evidence on the denture, whether by itself or taken with other evidence, would not cause me to cast any doubt on the credibility of his case.

25. The use of a bridge is a far better equipment than the denture. It is not a matter of getting used to the denture but the use of the denture will actually affect the gums of a person. The bridge is obviously reasonably required by him. Why should an injured person be forced to opt for a less satisfactory mode of treatment just because the cost is lower?

Others

26. The other special damage which is not disputed is $280.64 being loss of wages. The Defendant does not wish to admit that $180 odd had been incurred by way of travelling expenses.

Judgment

27. The total damage is $80,000 + $272,250 + $280.64, making a total of $352,530.64. The Plaintiff is given judgment on this sum together with the cost of the action. Interest at 3% on $80,000 is awarded from the date of the service of the writ to the date hereof. Interest at 6% on $280.64 is awarded from the date of the accident to date.