SHIH PIK NOG v. G2000 (APPAREL)

HCPI 832/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 832 OF 2009

-------------------------

------------------------

J U D G M E N T

------------------------

1.  This is a personal injuries claim. The plaintiff worked as a shop manageress for the defendant. “G2000” is a clothing retail outlet.

2.  On 5 May 2007, whilst at work at about 4:00 p.m. she went from the shop floor to a storeroom in order to prepare a staff roster.  The storeroom was about 200 sq. ft and had shelves and compartments for the storage of clothes to be sold from floor to ceiling on three sides of the room. Occupants of the room walked in and out of the room along a central corridor which was about 2 ft 6 inches wide.

3.  The storeroom was full of clothing items both on shelves and hanging from rails on hangers.  There was a high volume of stock in the storeroom.  It was a busy time for sales.

4.  When the plaintiff entered the room she noticed some trousers in plastic bags on the floor.  It is not known how they had got there.  She picked them up to return them to a shelf.  She then noticed some T-shirts also on the floor.  She picked them up also.  Both times she bent her knees and squatted in order to pick up the clothing, maybe up to 10 items on each occasion.  They were not heavy.  She had employed the safest method of picking something up, namely by bending her knees and squatting.

5.  These manoeuvres resulted in her experiencing pain in her lower back.  She was unable to complete her work that day.  At the time of the accident the plaintiff was 32 years old.  She had been employed by the defendant for a total of 15 years, as a manageress for 11 years.  She had not been injured at work before this incident.

THE PLAINTIFF’S CLAIM

6.  The plaintiff claims that the system and place of her work were unsafe and as a result she sustained injuries.

7.  In particular, her complaints are that :

(i) the storage room was too small for the quantity of goods that had to be stored therein;

(ii) because of the lack of space and high volume of stock, some items had fallen to the floor;

(iii) upon entering the room the plaintiff was confronted with an untidy situation which she felt obliged to clear up which required her to bend and pick up the items of clothing from the floor;

(iv) the available space to move inside the room was limited to a 2 ft 6 inch wide corridor between the shelves containing the stored clothing;

(v) the shop was understaffed which contributed to the likelihood of the storeroom becoming untidy; and

(vi) no instructions were given to the staff as to how the storeroom should be kept in an orderly fashion and therefore safe from the risk of injury.

8.  The plaintiff, through her counsel, Ms Julia Lau, concedes that had the act of picking things up from the floor occurred anywhere else in the shop she would probably have no case.  Her case depends on the size, layout and condition of the storeroom amounting to an unsafe place and unsafe system of work.

9.  There is no complaint that her access into the room was obstructed in any way other than by the items of clothing that she picked up.  There is no allegation that the items of clothing were heavy or awkward to lift.  There is no allegation that she had to contort her body in any unusual or unsafe way in order to pick up the items.  There is no allegations that she slipped or collided with anything inside the room.  There is no suggestion that her job required her to bend down excessively and repetitively thereby causing her injury.

LIABILITY

10.  In a case such as this it is useful to revisit basic and fundamental principles. The burden of proof is on the plaintiff; she must show that on the balance of probabilities her employers were negligent and/or in breach of statutory duty by causing or permitting the storeroom to be as it was at the time of the accident.  She must also satisfy the court that it was foreseeable that the condition of the storeroom at the material time would create a foreseeable risk that the plaintiff would do an act which might result in an injury to herself.

11.  The plaintiff had many years experience as a store manager.  She had gone in and out of storerooms on numerous (probably thousands) occasions.  She gave evidence that she had made complaints about the storeroom previously but there was no evidence that such complaints, if made, were anything more than informal comments.

12.  It is a fact that the act of picking light objects from the floor is a normal routine act which this plaintiff on this occasion performed in an unrestricted, uncomplicated and safe manner.

13.  Whilst it is fair to say that the plaintiff was a busy employee and the store was busy at the time, she was under no time restraint.  She was not attending a particular customer at the time; in fact, she was about to work out a staff roster.  A task she would have carried out at the far end of the room.

14.  There is no requirement that an employee should be trained as to how to pick things up from the floor, whether in a storeroom or anywhere in the shop.

15.  I accept the defendant’s submission, advanced by its counsel Mr John Wright, that the injury to her back could have happened at any time and any place and in any way and the fact that it occurred at the particular time, place and manner that it did has not been shown to have been the fault of the defendant, either because of their negligence or because of any breach of any statutory duty on their part.  Storerooms in shops are by their very nature small places and places containing many items for ultimate sale to the public.

16.  In my judgment the defendant’s system and place of work did not fall short of a standard reasonably expected by their employees.

17.  I accept that the plaintiff sustained her injuries in the way that she described.  She blames her employer because she was confronted with an untidy storeroom which she felt obliged to clear up.  The accident happened at work doing an act of tidying up in a somewhat congested room.  All this is true and to this extent I accept the plaintiff’s account.  However, even though I suspect the plaintiff will fail to understand why, for the reasons already given, this does not establish liability for the accident and consequent injuries on the defendant.

QUANTUM

18.  For the sake of completeness I will state briefly what my decisions would have been on the main quantum issues had liability been established.

19.  I would not have found there to have been any contributory negligence on the plaintiff’s part.

20.  Considering the relatively minor nature of the initial incident the plaintiff’s subsequent medical history has become somewhat complex.

21.  The total value of her claim, based on the revised statement of damages (ignoring her ECC award of $797,986.60) came to $3,310,715.60.  This sum has been arrived at largely on the basis that (a) she has been unable to work for the four years since the accident and (b) her future earnings will be only about half what she had previously earned (with a multiplier of 14 years) and (c) she should be awarded $350,000 for pain suffering and loss of amenity.

22.  The medical evidence at trial came from two joint reports.  The authors of those reports had, inter alia, read and considered all the relevant previous medical records, hospital reports and so on.

23.  Bearing in mind my finding on liability my assessment of quantum issues will be shorter than might otherwise have been necessary and I will refer only to the joint reports.  A key issue in both reports concerns the questions of malingering, exaggeration of symptoms and feigning pain.

24.  At trial the plaintiff gave evidence for approximately three hours, divided by a lunch adjournment.  On a number of occasions she asked to stand up to continue her evidence, which she did for 10‑20 minutes then sat down again.  She declined invitations to take additional short breaks.  She became distressed at times and appeared to be in pain from time to time.  She walked to and from the witness box very slowly.

ORTHOPAEDIC REPORT

25.  This was prepared by Dr Arthur Chiang and Dr Daniel Yip and is dated 15 December 2009.  It is a 26-page report.

26.  I observe at the outset that the assessment of the plaintiff’s physical and mental state is not without difficulty.  The plaintiff’s own account of her past and present condition is often at variance with that of the doctors.  In cross-examination there were times when she said that the doctors were wrong and that reports and findings had been incorrectly stated or recorded.

27.  I have to bear in mind also that I heard and saw the plaintiff give evidence whereas the medical evidence was in writing only.  Nonetheless, I decided that the safe and proper way to proceed was on the basis that the most weight should be attached to the medical reports.  At their highest they only provide limited support for the plaintiff’s case.

28.  Dr Chiang concluded that the plaintiff had suffered either a soft tissue injury of the lower back or prolapse of a lower lumbar disc with the latter being the “more likely” and that “a L5/S1 disc proplase was quite likely to have sustained from the injury”.  He opined that it would have a good chance of improving with conservative treatment.

29.  Dr Yip gave a lengthier and less favourable assessment.  As to the first moment she felt pain, he said :

“Madam Shih said she squatted down a few times to pick up some clothing. Squatting down principally relies on the strength of the legs, the spine is more or less straight, as opposed to bending over which puts excessive stress in the intervertebral disc. Therefore, even if this was the time the symptoms first occurred at that moment, it does not scientifically prove causation relationship. It was merely a chronological coincidence.

The intervertebral disc is subjected to wear and tear continuously.  Damage to the disc can cause local back pain especially with stressful movements and causing localized tenderness on examination.  By definition, only if there is nerve impingement should there be radiating pain to areas which are supplied by that nerve.  This is the principle of sciatica.  In this case, there is no dispute that the nerve is not impinged.  The alleged pain radiating symptoms or any sensory abnormality beyond the area the spine are therefore medically inexplicable and therefore unlikely to genuine.”

30.  Dr Yip quoted several further examples which were consistent with the plaintiff feigning or exaggerating her condition.  I do not propose to itemize them.

31.  Dr Chiang also, when commenting on the plaintiff’s reaction to the “straight leg raising tests” in the sitting and supine positions and the results of the ‘Waddell’ test said that “exaggeration was likely to be present” and that there was a “generally good prognosis”.  Dr Yip stated that her alleged disability was inconsistent with the injury, diagnosis, the MRI findings and the medical evidence.  Dr Chiang said she should be able to work in her pre-injury job with some reduction in efficiency.  Dr Yip stated her efficiency should be unaffected provided she was motivated.  Dr Chiang assessed the permanent impairment at 5%, Dr Yip 0%.

PSYCHIATRIC REPORT

32.  This report, dated 20 July 2010, is 27 pages long and prepared by Dr Wong Chung Kwong and Dr Chung See Yuen.  They examined her together and subjected her to various tests and questioning.

33.  Dr Wong believed her responses were indicative of exaggeration of mental symptoms.  He considered her to be suffering from mild adjustment disorder with depressed mood as a result of the accident.  Her “impairment” was between Class 1 (no impairment) and Class 2 (mild impairment) but closer to Class 1 than 2.  She should be able to return to work.  He estimated a 1% loss of earning capacity and recommended three months’ sick leave on psychiatric grounds.  He thought her psychiatric symptoms would subside after trial.

34.  Dr Chung agreed with the diagnosis and that her residual symptoms were mild.  He also assessed her “impairment” to be somewhere between Class 1 and Class 2 and that she is mentally fit to resume work.  Three months’ sick leave from April 2009 would be reasonable and the degree of permanent impairment he assessed at 2%.

DAMAGES

1.  PSLA

35.  The plaintiff seeks $350,000 which is plainly too high.  The defendant suggests $50,000 which is plainly too low.  I would have awarded $200,000.

2.  Sick leave

36.  Being as sympathetic as possible I would have granted full pay on sick leave up to July 2009.  A total of 27 months.

$20,243 x 27 x 1.05 (MPF) = $573,889.

3.  Future loss

37.  I would have concluded that she was capable of resuming her pre-accident employment in July 2009.

4. Special damages

38.  These would have amounted to approximately $50,000.

5.  Future medical expenses

39.  $10,000.

40.  The total award would have been :

	1.	$200,000
	2.	$573,889
	3.	$50,000
	4.	$0
	5.	$10,000
		$833,889
	Less ECC	$797,987
		$35,902

JUDGMENT

41.  The plaintiff’s claim is dismissed.  There will be a costs order nisi in the defendant’s favour.