CHENG YUK CHUN v. WINSON CLEANING SERVICE CO LTD AND OTHERS

DCPI 629/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 629 OF 2006

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JUDGMENT

INTRODUCTION

1.  In this action, the 43-year-old lady cleaner claims against the Defendants for personal injuries sustained during work in 2004.  At the material time, the 1^st Defendant was her employer.  The 2^nd Defendant was the management company of the property which contracted the 1^st Defendant for cleaning service.  The 3^rd Defendant was the owners’ incorporation of the property.

THE ACCIDENT

2.  The accident happened in the morning of 24 April 2004 at one of the back staircases between the 6^th and the 5^th Floor of Block 18 (“the Block”) of the Hong Kong Garden, Castle Peak, Tsing Lung Tau, New Territories (“the Estate”).

3.  It was part of her morning routine to collect the garbage from the back staircases of each floor of the Block.  She would put the garbage into one of the wastebaskets, which she brought for such purpose, and then move the basket of garbage to the Ground Floor.  The garbage collected would be centralised on the Ground Floor and would be collected by a garbage truck.

4.  The Plaintiff started work at about 7:00 am that day.  At about 7:45 am, she started collecting garbage from the 29^th Floor of the Block downwards floor by floor.  At about 8:30 am, she was moving a basket filled with garbage and descending along the staircase from the 6th to the 5th Floor (“the Staircase”).  In the course of that, she fell and injured, among other parts, her right wrist.

5.  The above background was not in real dispute.  The dispute was what caused the Plaintiff to fall.

THE CAUSES OF ACTION

6.  The Plaintiff claims against the 1^st Defendant for breach of the implied contractual duty of employer.  She claims against the 2^nd and the 3^rd Defendants as the occupiers of the scene of the accident.  Against all Defendants, the Plaintiff also alleges breach of statutory duties as well as the general duty not to be negligent.

7.  Except for the alleged statutory duties on the part of the 2^nd and the 3^rd Defendant, the existence of the various kinds of duty on the respective parties was not in real dispute.  The dispute was essentially whether any of them was in breach and whether the accident was contributed to by the Plaintiff’s own negligence.

8.  Between the 1^st Defendant of one part and the 2^nd and the 3^rd Defendant of the other part, there was also the issue of contribution.

LIABILITY

Plaintiff’s statements

9.  There was no eyewitness of the accident.  Counsel for the Defendants highlighted various aspects of her evidence which were said to contain remarkable inconsistencies.

10.  The Plaintiff has made 3 statements, all of which contained materials explaining how the accident happened.  In her first statement made in August 2006, the Plaintiff explained how she came to fall at the material time.  Her second statement made in December 2006 was mainly a reply to the statements of the witnesses for the 1st Defendant.  Since the 1st Defendant’s witnesses were eventually not called, their statements had to be disregarded.  The Plaintiff’s third statement (“the 3rd Statement”) was filed only at the beginning of the trial.  Among the 3 statements, this last-minute statement contained the most detailed account of how the accident happened.  Counsel for the Defendants sensibly consented to this statement to stand as the Plaintiff’s evidence too except for paragraphs 18-19 thereof.  The exception related to the Plaintiff’s contradiction of her post-accident declaration to the Labour Department dated 15 May 2003 about the accident.  This would be discussed in detail below.

What caused the Plaintiff to fall

11.  According to the Plaintiff, the Staircase was soiled with water and oily liquid leaked from the bags of garbage there.  She therefore slipped and fell.

12.  The inconsistencies in the Plaintiff’s case highlighted by counsel for the Defendants fell into 2 broad categories:

(1)	Reference to slipping on wet and oily staircase was first mentioned only in the 3rd Statement.
(2)	Her case was inconsistent, both inherently and with the contemporaneous documents.

13.  Regarding (1) above, Mr. Cheung for the 1^st Defendant described the omission of reference to slipping on wet and oily staircase until the 3^rd Statement as most glaring.  However, such reference was effectively pleaded in the statement of claim (paras.9, 14 and 17).  The mere late mention of the details in the Plaintiff’s statements per se does not suggest recent fabrication.

14.  Really the attack by Mr. Cheung for the 1^st Defendant and Mr. Gidwani for the 2^nd and the 3^rd Defendants on the Plaintiff’s case was focused on (2) above.

15.  The pleaded case of the Plaintiff was this:  The Staircase was wet and oily due to the wastewater and oily liquid leaked from the bags of garbage placed there by the residents.  Despite previous complaints to superiors, this situation had not improved.  The basket of garbage being moved was heavy, weighing 50 pounds or more.  Unless there was special reason, the residents’ lift could not be used for garbage collection.  She had to slide the basket along the staircase.  In the course of that, she put one hand on the handrail to lend strength and to keep balance while pulling the basket with her right hand.  Sometimes she had to use both hands in the process.  From time to time, she had to turn back and her eyes were away from the front or the stairs.  She slipped, could not maintain balance and stepped on the wrong stair.  She did not manage to reach and hold the handrail but fell from the top of the 6^th Floor staircase to near the bottom of the staircase.

16.  Immediately apparent from the pleading is the allegation that the Plaintiff fell from the top of the 6^th Floor staircase.  But it was common ground that she actually fell from about 3 stairs to the 5^th Floor.  No point was therefore taken in respect of this apparent discrepancy.

17.  Counsel for the Defendants contended that the Plaintiff’s case was contradicted by the contemporaneous documents.

18.  The documents heavily debated about were the Plaintiff’s declaration to the Labour Department and the accident report.  The declaration was made 2 weeks after the accident.  The accident report was compiled another week later.  Mr. Chan, the occupational safety officer, was responsible for taking the declaration as well as compiling the report.

19.  The crucial features of the Plaintiff’s account as recorded in her declaration were these:  The wastebasket was not too heavy as it contained 4 to 5 small bags of garbage immediately prior to the accident.  She held the handrail to her left and pulled the wastebasket with her right hand along the Staircase.  It was hot at the time and she was wearing a mask.  Sweat was dripping from her forehead into her eyes.  She was on 3 stairs away from the 5^th Floor.  At the moment when she raised her left hand intending to wipe the sweat, she lost balance and fell down the Staircase.

20.  The declaration went on with questions and answers.  Her answers were these:  At the material time, the wastebasket contained 4-5 small bags of rubbish which weighed about 10 kg.  There was no oil stain or wetness on the Staircase.  The lighting was sufficient with the sunlight coming through the window.  She was wearing ordinary white nylon shoes and doctors’ mask which she bought as the mask provided by the company was not user-friendly.  This made her sweat easily and slightly affected her vision when looking down.  The last question and answer related to whether the company provided any safety training.  She added that the accident was caused by the fact that she did not hold tight to the Staircase’s handrail as she wiped the sweat.

21.  The accident report was compiled on the basis of such information.

22.  One would note the remarkable discrepancies between the Plaintiff’s case and her declaration made soon after the accident.  In her pleading, the Plaintiff stated that she was surprised when she found out from her solicitors the contents of the declaration and the accident report.   She said most part of them were untrue.  She stated that she could hardly read Chinese and could barely write a few Chinese words.

23.  The standard declaration form was used in this case.  The ultimate section of the form provided for the case where the declaration maker is illiterate.  It requires the occupational safety officer in such a case to confirm in writing that the declaration has been read to the maker before it is signed.  In the present case, this section was not filled in.  One might infer that Mr. Chan has not carried out what this section required or he left it to the Plaintiff to read the declaration by herself.  Indeed, it was pleaded that the Plaintiff was unable to understand her declaration by simply reading it.

24.  How her declaration was taken was never revealed until the 3^rd Statement was filed at the beginning of the trial.  Understandably, the Defendants opposed to such part of the 3^rd Statement to stand as the Plaintiff’s evidence in chief (as mentioned above).  In court, the Plaintiff said that Mr. Chan showed her some photographs of the Staircase.  He asked her a few questions and he wrote.  She was asked if she reads and writes.  He read the declaration to her very quickly and she signed the declaration partly because of the pain in her hand and the urge to leave soon.  Not only did she deny the account of the accident recorded in her declaration, she also denied those questions and answers now recorded in the declaration having been put and given.

25.  If what the Plaintiff said were true, this would not simply have been a matter of possible misunderstanding between her and Mr. Chan during the interview or a question of accuracy in his written record of the answers she gave.  Mr. Chan would have effectively fabricated most part of the declaration.

26.  Mr. Chan attended the trial under a subpoena.  He confirmed that he read the declaration to the Plaintiff before she signed.  In answering the suggestion that he might have read it too quickly, Mr. Chan explained that he paused at each paragraph of the declaration and would have expected the Plaintiff to indicate if she was unable to follow.  Having heard him, I find no compelling reason to doubt his evidence, not to mention finding any clue of fabrication.  The Plaintiff’s suggestion that Mr. Chan has read the declaration to her, though allegedly very quickly, actually contradicts her pleaded case that she was left to simply read it herself.

27.  Mr. Chan also gave first hand evidence of the condition of the scene of the accident.  After receiving the police report, he and his superior attended the scene.  He took photographs of the Staircase which were attached to the Plaintiff’s declaration as well as the accident report.  He found that there was sufficient lighting from the window and the lighting facility.  More importantly, he observed that the surface condition of the stairs was even, dry and non-slippery.

28.  Mr. Cheung for the Plaintiff attempted to cast doubt on the reliability of Mr. Chan’s observation in view of the nearly 1 hour time gap between his receipt of the police report and his arrival at the scene.  He attempted to test whether Mr. Chan might have been led to the other back staircase on the same floor rather than the one in question.  Mr. Chan fairly conceded that he went to the staircase as led.  However, if he was misled, that would mean even the police officer at the scene had been misled.  Mr. Chan explained that the scene of the accident was actually guarded by the blue and white strips put there by the police.  Mr. Cheung for the Plaintiff also submitted the likelihood of the scene having been cleaned prior to Mr. Chan’s arrival.  I am prepared to assume that the basket of garbage, which the Plaintiff was moving immediately prior to the accident, had probably been removed from the scene by then.  However, I am not able to go further to assume (in the absence of evidence) that the Staircase had been cleaned up so as to remove any oil or water stains before the police or Mr. Chan arrived.

29.  I have also been asked to consider other documents.  First, the notebook of the police officer and the police occurrence book contained no mention of the Plaintiff having slipped on water or oil.   Secondly, Form 2 actually recorded that the accident happened due to the Plaintiff’s own carelessness.  Thirdly, the joint medical expert report recorded that during the interview with the Plaintiff in September 2006, the Plaintiff told the doctors that she was unable to remember the weight of the wastebasket or whether the floor was wet or slippery.  In my view, compared with the Plaintiff’s declaration and the accident report, which came to existence for the exact purpose of finding out what caused the Plaintiff to fall on the staircase, these other documents are not as indicative of the reliability of the Plaintiff’s evidence.

30.  Mr. Gidwani for the 2^nd and the 3^rd Defendants also submitted that the Plaintiff’s injuries were inconsistent with the alleged slip and fall mechanism.  He suggested that had the Plaintiff slipped, she should have fallen backwards and landed on her lower back rather than falling forward with her hand stretching forward to prevent the fall.  Mr. Gidwani appealed to my application of common sense.  I doubt if this must be as commonly acknowledged as he suggested.  None of the medical officers and experts having examined her raised such doubt.  It should also be borne in mind that the Plaintiff was handling load while descending the Staircase instead of simply walking on the floor.

31.  Nevertheless, considering all the evidence including those specifically analysed above, I am not satisfied that the Plaintiff fell because she slipped on wet or oily surface of the Staircase at the material time.  I find Mr. Chan, the occupational safety officer, to be a reliable witness.  I find that on the balance of probabilities, the accident did happen in the way as Plaintiff told him and was recorded in her declaration and the accident report.

Whether the Defendants were in breach

32.  In view of my finding of how the Plaintiff came to fall on the Staircase, there is really no sufficient factual basis for finding fault in the 1^st Defendant’s system of work.

33.  The Plaintiff complained that she had to carry out her work under great time pressure.  Having said that, I must bear in mind that the complaint about the tight working schedule was made in the context of explaining the real risk of the Plaintiff slipping at work.  And when saying that it only took the slightest motion to result in slipping (and citing Lau Shui Chun v Leung Tung Ping Metal Factory Ltd., unrep., HCPI 75/1997, 7/10/1998), Mr. Cheung for the Plaintiff was submitting on the premise that the condition of the ground was slippery in the first place.  It was not the Plaintiff’s case that even in the absence of the alleged slippery condition of the Staircase, she (still) fell as a result of hurrying downstairs so as not to miss the garbage truck.  This would have been anyway contradicted by the fact (as found above) that the Plaintiff lost balance when she wanted to wipe her sweat as she told Mr. Chan.

34.  The 2^nd and the 3^rd Defendant, which were undeniably occupiers of the staircase, should not be to blame either in the circumstances.

35.  I therefore find no other (argued) basis on which the Defendants should be held to be in breach of their respective duties.  This was an accident having occurred in the absence of any actionable fault element on the part of the Defendants.

Assuming breach

36.  For completeness, I proceed to consider whether any of the Defendants should be liable and the apportionment of liability if I am wrong above.  In other words, what if the accident happened due to the oily and slippery condition of the Staircase at the time as alleged.

37.  Mr. Cheung for the 1^st Defendant submitted, and I agree, that the 1^st Defendant should not be liable for the accident to the extent as being caused by some known and ordinary risk in the course of the Plaintiff’s carrying out her basically simple and routine duty in this case.  The cases of Mawson v Unilever [1963] 2 Lloyd’s Rep. 198, Winter v Cardiff Rural District Council [1950] 1 All ER 819 and Cheung Suk Wai v AG [1996] HKC 288 illustrate this.  This however would not have addressed all the Plaintiff’s allegations.

38.  I mentioned above the Plaintiff’s complaint about having to work under great time pressure.  The garbage removal should be completed by 9:00 am as specified by the service contract between the 1^st and the 2^nd Defendant.  The garbage truck would first stop by the Block at about 9:00-9:30 am to collect the garbage before proceeding down slope to the other blocks of the Estate.  She had effectively less than 2 hours to remove all the garbage from the 29 floors of the Block by herself.  She also explained her experience of having missed the truck.  Not calling any witness at the trial, the 1^st Defendant had nothing to effectively contradict this part of the Plaintiff’s evidence.  Though there was dispute over whether the Plaintiff could have used the residents’ lift, it sounds credible that priority had to be given to residents during the morning rush hours which were indeed the hours of the Plaintiff’s work.  The Plaintiff effectively had to hurry with her work along the Staircase by herself.  Unlike Cheung Suk Wai, the Plaintiff had to work under a tight time schedule and would not really have been in a position to regulate her own pace and to decide her manner of work.  This effectively deprived her of real alternative to avoid the risk of slipping and falling due to the condition of the Staircase.

39.  Therefore, had I found that the accident was caused by the alleged wet and slippery condition of the Staircase; I would have found the 1^st Defendant liable.

40.  As the management company, the 2^nd Defendant was responsible for maintaining the common parts of the Estate.  This should include the Staircase.  The 1^st Defendant was contracted by the 2^nd Defendant to provide such cleaning service for reward.

41.  The statements of the estate manager of the 2^nd Defendant the chairman of the 3^rd Defendant were admitted as agreed evidence.  It was therefore common ground that the caretaker of the 2^nd Defendant assigned to each block would patrol the common parts including the Staircase to ensure that they were clean at all times.  Weekly meeting with the 1^st Defendant would be convened to ensure that the 1^st Defendant provided satisfactory services.  As far as the 2^nd Defendant was concerned, the 1^st Defendant was a competent contractor and no complaint about the standard of cleanliness has been received.  Since its incorporation, the 3^rd Defendant has found the quality of the 2^nd Defendant’s management to be satisfactory.

42.  The 1^st Defendant was responsible for the system of the Plaintiff’s work.  The same could not be said insofar as the 2^nd and the 3^rd Defendants were concerned.  This should be apparent from the service contract between the 1^st and the 2^nd Defendants.  In the light of the common ground stated above, I agree with Mr. Gidwani that the 2^nd or the 3^rd Defendant should not be liable for the accident happened to the Plaintiff in the course of her providing such cleaning service as the 1^st Defendant’s servant.

43.  The Plaintiff was not a mere outside visitor to the Staircase but the very servant of the 1^st Defendant responsible for cleaning it.  She did admit in her evidence that she was responsible for cleaning the Staircase in question after collecting the garbage.  There was no evidence to support that the risk associated with the condition of the Staircase was so exceptional that it was not reasonably incidental to the Plaintiff’s cleaning work.  I agree with Mr. Gidwani that the 2^nd and the 3^rd Defendants could have justifiably relied on section 3(3)(b) of the Occupier’s Liability Ordinance, Cap. 314 in respect of the discharge of their common duty of care.

44.  Even if the 2^nd or the 3^rd Defendant was somehow liable to the Plaintiff, I am of the view that the ultimate responsibility should in the circumstances still have lied with the 1^st Defendant.  The 2^nd and the 3^rd Defendants would have been entitled to full indemnity from the 1^st Defendant against any of their liabilities to the Plaintiff due to the accident.

Contributory negligence

45.  Again, the issue of contributory negligence would only arise if I had found in favour of the Plaintiff on liability (on the basis as discussed above).

46.  Mr. Gidwani for the 2^nd and the 3^rd Defendants submitted that contributory negligence in this case should be 25%, referring to the case of Ng Siu Cho v the Incorporated Owners of Jardine Court, unrep., DCPI 976/2005, 6/7/2006.  I assume that Mr. Cheung for the 1^st Defendant adopted that submission.  I do not see that the Plaintiff could have done much to avoid the risk of slipping on the Staircase (which is assumed to be wet and slippery) when having to understandably hurry with her work.  The circumstances simply differ from those in Ng Siu Cho.  I would have found no contributory negligence.

QUANTUM

47.  Again, for completeness, I proceed to assess the quantum.

Injuries and treatment

48.  Upon admission to the hospital, the Plaintiff’s right wrist had swelling, tenderness and decreased range of movement.  There were bruises in the forehead and a 1-cm nasal bridge laceration.  X-ray showed fracture of the right distal radius.  The fracture was treated with close reduction and plaster immobilisation.  The Plaintiff was discharged the following day.

49.  The alignment was satisfactory and the plaster cast was removed in early June.  She was followed up with physiotherapy.  Her condition was found to have been complicated by the development of Reflex Sympathetic Dystrophy (RSD) or Complex Regional Pain Syndrome (CRPS) which resulted in pain and stiffness of fingers and wrist.    Bone scan in August 2003 confirmed the RSD.  MRI in late 2003 showed tear of Triradiate Fibrocartilage Cartilage (TFC).  Nerve conduction test showed mild carpal tunnel syndrome.  The Plaintiff was followed up by consultation with psychiatrist and pain clinic.  When the RSD symptoms resolved gradually, she was readmitted in February 2004 for wrist arthroscopy and debridement of the TFC tear.  She was discharged days later.

50.  The Plaintiff still complained about residual pain in the right hand.  There was still limitation in movement and numbness in fingers.  The latest X-ray in November 2006 showed healed fracture of the distal radius.  There was no evidence of osteophyte formation or carpal instability.  She was still in low mood.  Follow-up by psychiatrist continued.

Medical expert opinion

51.  There were the following medical expert reports:

(1)	joint report of Professor P C Leung and Dr. Lee Po Chin dated 5 December 2006; and
(2)	joint report of Dr. Law Wun Tong and Dr. Ho Pang Nin Peter dated 20 December 2006.

Physical disability

52.  In their joint report, Professor Leung and Dr. Lee agreed that the RSD or CRPS was likely to be a complication of her injury to the right wrist.  The movement of the right wrist was now almost full though there was still residual limitation in movement, mainly in pronation.  The Plaintiff was near the end stage of the CRPS and there was no ongoing sign of such symptom.  There was slight unilateral muscle wasting of the right forearm and arm but no entrapment neuropathy of the forearm nerves.

53.  The experts agreed that the treatment was adequate and appropriate.  No further treatment was indicated.  The prognosis should be optimistic.  The Plaintiff should continue to use her right hand instead of focusing on her pain.

54.  The major disability, being the loss of pronation and residual vague pain, would cause 5% impairment of the whole person.

55.  Dr. Lee opined that the Plaintiff should be able to resume working as a cleaning worker.  Whilst she might have difficulty in handling heavy weight initially, more use of her right wrist would actually help resolving the pain and stiffness.  Suitable alternatives included work as a shopkeeper, car park attendant or customer service worker.  Professor Leung opined that the Plaintiff would suffer 5% loss of earning capacity.

56.  The experts agreed that sick leave lasting for 6 months after the arthroscopy in February 2004 was reasonable.

Psychiatric aspect

57.  Dr. Law observed that due to the physical injuries, the Plaintiff developed mood disturbance in the form of low mood, worries about her health and work ability, increased irritability and sleep disturbance.  Both he and Dr. Ho found that she suffered from adjustment disorder with depressed mood.  The disorder was reactive to the physical problem and the associated psychosocial stressors.  Dr. Law opined that she has not suffered from a psychotic condition.

58.  The doctors differed in their opinion on the appropriate sick leave period for the psychiatric disorder.  Dr. Law said 3 months since the Plaintiff’s first consultation with psychiatrist in September 2004 whereas Dr. Ho said 6 months.

59.  The doctors recommended continuing psychiatrist treatment.  They differed in their opinion as to the duration of such treatment.  Dr. Law said 12 months whereas Dr. Ho said 2 years.

60.  Dr. Law opined that the Plaintiff’s psychiatric condition was mild.  She should be able to live independently and her work capacity should only be limited by physical disabilities.  The degree of impairment of the whole person on account of the psychiatric condition was 5%.  Whilst Dr. Ho assessed the degree of impairment to be 10%, he seemed to qualify the accuracy of such quantitative method of assessment.  More importantly, he agreed with Dr. Law that the Plaintiff was capable of resuming her pre-accident job subject to possible difficulties in relation to her mental symptoms.

Pain, suffering and loss of amenities (“PSLA”)

61.  Mr. Cheung for the Plaintiff argued that the appropriate award for PSLA in this case should not be less than HK$400,000.00.  He relied on Ho Kwai Kong v Cheng Kok, HCPI 93/2002, 31/10/2002 (where HK$380,000.00 was awarded) and Yu Pun Yuen v Ng Kwok Man & Ors, HCPI 293/2002, 9/5/2003 (where HK$450,000.00 was awarded). 

62.  The cases cited by the Plaintiff are, in my view, clearly more serious than the present one.  It only takes one to compare, among other features, the injuries and disabilities, degree of permanent impairment, loss of pre-accident enjoyment in life and amenities as well as the ability to resume pre-accident employment to realise the differences.

63.  Mr. Cheung for the 1^st Defendant, with whom Mr. Gidwani for the 2^nd and the 3^rd Defendants agreed, cited Frank Yu Yu Kai v Chan Chi Keung, HCPI 230/2004, 8/11/2006 (where HK$250,000.00 was awarded) and Lau Chi Man v Kowloon Canton Railway Corporation, DCPI 501/2005, 17/5/2006 (where HK$220,000.00 was awarded).  They argued that a proper award should be in the region of HK$200,000.00.

64.  In Frank Yu Yu Kai, the plaintiff suffered from a left radial nerve palsy manifesting in a drop wrist and for which he underwent physiotherapy.  His major disability, i.e., pain and weakness persisted for a year but completely dissipated years prior to the trial.  He has resumed his pre-accident work as a surgeon.  Lau Chi Man was helpful actually for the cases referred to therein.  One of them was Tang Shu Shek v Leung Chi Kit & Anor, HCPI 219/2002, 13/5/2004.  The 41-year-old formwork carpenter fractured the wrist of his non-preferred hand.  He had been hospitalised for 2 days and worn a plaster cast for 2 months.  After removal of the cast, he underwent physiotherapy and occupational therapy.  The fracture healed with mild reduction of power and the prognosis was good.  He also resumed his pre-accident work though with reduced capacity due to the residual pain.  HK$180,000.00 was awarded.

65.  In my view, the present case was more serious than Frank Yu Yu Kai and none of the above cases involved psychiatric element.  Such element existed in what counsel cited as Ng Ching v Link Machinery Works Ltd.  This must be a mistake as the facts referred to were actually those of Lin Chiu Lung v Ile Co Ltd, HCPI 1056/2002, 31/7/2006.  Lin Chiu Lung actually involved injury to the elbow and the right ulnar nerve.  But the plaintiff there had no residual physical impairment or permanent psychiatric disability (though psychiatric treatment was recommended).  HK$250,000.00 was awarded.

66.  I also find these cases worth noting: Chan Pui Kuen v Lee Oi Wah, HCPI 661/2000, 6/9/2001, Wan Shuk Lee v Lik Kan Co Ltd, HCPI 1142/1996, 22/2/2002.

67.  Considering the Plaintiff’s personal background and her circumstances in this case, I am of the view that an award of HK$300,000.00 would have been appropriate for PSLA as a result of both physical and psychiatric conditions.

Special damages

Pre-accident salary

68.  The Plaintiff’s pre-accident salary of HK$3,500.00 was agreed.

Pre-trial loss of earnings

69.  Parties agreed this item to be HK$84,000.00 representing the loss during the 24-month sick leave period.  The loss of MPF benefits at 5% would have been HK$4,200.00.

Loss of future earnings

70.  Parties basically agreed that the Plaintiff should have been able to resume her pre-accident work after the sick leave period.  This was sensible in the light of the medical expert opinion.  Parties also agreed on the applicable multiplier for assessing any future loss of earnings.  They disagreed on the multiplicand.  Mr. Cheung for the Plaintiff suggested a reduction of at least 30% or a net sum equivalent to HK$1,000.00 from her monthly income.  Mr. Cheung for the 1^st Defendant suggested a reduction of HK$350.00 or effectively 10%.

71.  Whilst counsel did the best they could to come up with the figures, neither suggestion could really escape from scepticism due to their arbitrariness.    There was simply no evidential basis for the suggested percentage reduction.  It should also be borne in mind that the Plaintiff was paid on a salary rather than a daily basis and her salary was already minimal.

72.  Mr. Cheung for the Plaintiff justified the claim for loss of income by submitting that the Plaintiff’s residual pain and psychiatric episode should cause her great difficulty in obtaining full time employment.  She might have to take occasional breaks or leave from work.  I am prepared to find certain extent of such difficulty.  However, rather than causing her reduction in income, such difficulty should really be reflected by the risk of her losing her job and the difficulty of maintaining one, also in the light of her age and qualification.  In the circumstances, I am not satisfied that if the Plaintiff had resumed her pre-accident kind of work, she would have suffered loss in her monthly income the way which counsel suggested.

Loss of earning capacity

73.  Following the above, I am however of the view that an award should have been made in respect of the disadvantage suffered by the Plaintiff in the labour market as a result of her condition.  I would have made an award of HK$42,000.00 which would be equivalent to 1 year’s income.

Miscellaneous special damages

74.  Parties agreed that an amount of HK$20,000.00 should be allowed for this item of claim.

Summary

75.  The award is summarised as follows:

PSLA	HK$	300,000.00
Pre-trial loss of earnings	HK$	84,000.00
Loss of MPF benefits	HK$	4,200.00
Loss of earning capacity	HK$	42,000.00
Miscellaneous special damages	HK$	20,000.00
Total:	HK$	450,200.00

76.  Interest on general damages should run at 2% per annum from the date of writ (20 April 2006).  Interest on pre-trial loss of earnings, loss of MPF benefits and miscellaneous special damages should run at 5.375% per annum from the date of accident (24 April 2003).  Interest from today shall run at the judgment rate until payment.

77.  Credit should be given to the employees’ compensation received by the Plaintiff in the sum of HK$182,859.45.

COSTS

78.  Failing to establish liability, the Plaintiff’s claim is dismissed with costs of this action to the Defendants, to be taxed if not agreed.  The Plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.  For the avoidance of doubt, I certify the engagement of counsel.  This order is nisi and will become absolute in the absence of application within 14 days.