LI WAI KIN v. READY CHANCE LTD

HCPI 466/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.  466 OF 2008

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J U D G M E N T

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Introduction

1.  The plaintiff commenced this action in July 2008 claiming damages for personal injuries allegedly suffered during work.  The pleaded causes of action are:-

(a) negligence;

(b)    breach of contract;

(c) breach of statutory duties.

All causes of action are founded on the same factual basis.

2.  The defendant was the plaintiff’s employer and denies the claim, contending that the alleged accident did not occur.  Further, it is contended the plaintiff has largely recovered and he exaggerates his injuries.

Background

3.  The defendant has been operating in effect a bus/coach passenger services business; subcontracting its services to local travel agents has been part of its business.  The other lines of business included hotel-to-airport, school children and housing estate transportation services.

4.  The plaintiff was one of the defendant’s employed drivers (from June 2006 to February 2007).  His duties included driving tourists and tour guides around Hong Kong, and taking care of tourists’ luggage handed over by the hotels.  In particular, he was to arrange and place the luggage inside his bus.  To do so, he stayed in his bus while the luggage was handed to him by the hotel bell services staff.

5.  The plaintiff was born in August 1966 and was about 40 years old at the time of the alleged accident (January 2007) (and about 43 years old today).  He reported his back injury to the defendant in mid-February 2007 and has not returned to work since then.  He was paid by the defendant about $64,000 during the period of sick leave.  Neither the statement of claim nor the revised statement of damages specifies or makes clear when he left the defendant’s employment.

6.  Before joining the defendant, the plaintiff has worked as a light goods vehicle driver for about:-

(1) 8 to 9 years (according to his testimony); or

(2) 10 years (according to his witness statement).

He needed to handle even heavier objects when he was in that job.

The Alleged Accident

7.  The plaintiff specifies the time of the accident as around noon time on 30 January 2007.

8.  According to the statement of claim, it happened:-

“[while he] was delivering a luggage measured about 3 feet (L) x 2. 5 feet (H) x 7-8 inches (W) and weighed over 20kg, turning his body to the right to place it on the seat in the 3^rd row on the right hand side of the passenger cabinet (facing the front of the bus)” (para.  4 thereof).

He claimed to have sprained his back at that juncture.

9.  The narrative given in his witness statement concerning the accident was by and large the same as the above quote.

10.  For the reasons given below, I do not find his account to be credible or reliable.

11.  About 14 days lapsed between the time of the alleged accident (30 January 2007) and his report to the defendant (14 February 2007).  He continued with his daily work during that period.

12.  The joint medical report deals with this aspect as follows:-

(a) Dr. Kong, the plaintiff’s medical expert opines that the medical findings are consistent with the plaintiff’s account of the accident;

(b)    Dr. Lee, the defence medical expert opines that it is unusual for the plaintiff to seek treatment 14 days later.  Further, the pain caused should be severe within 48 to 72 hours compelling the plaintiff to seek treatment.  His opinion is in short that the pain was more likely to have been a natural progression of degeneration of the lumbar spine.

I prefer the opinion of Dr. Lee to that of Dr. Kong.

13.  In accepting the conclusion of Dr. Lee, I take into account the plaintiff’s previous work which required lifting of heavy objects for a lengthy period, even before he joined the defendant: see para. 6 above.

14.  The common experience of the courts with work-related back injuries caused by the lifting of heaving weight appears to be similar to the way Dr. Lee described them in para. 12(b) above.  In Lai Wah Wai v. Castco Testing Centre Ltd. [1996] 2 HKC 44, a case where the injured worker removed concrete mould which was found to be too heavy for him, the court summarized the worker’s injury as :-

“[as] he was lifting a mould and concrete block, he felt a sharp pain in the lumbar area of his back.   He told his co-worker that he could not continue with the work … At about noon, the pain was becoming severe so he told his co-worker that he was going to hospital … ” (p.  46).

In Lai Kam Wah v. Wing & Kwong Co. Ltd., HCPI 1131/2002 (28 November 2003), the injured worker was a steel-bender.  His back was injured when he lifted the front end of a steel bar weighing about 120 kg (or 260 lb).  The court’s summary of the injury was:-

“[the] plaintiff said … he was at the front end of a steel bar with the other co-workers waiting to lift their sections [of the bar].  As he lifted the front end he suddenly heard a click sound on his back and felt severe pain in his back. … He told his co-worker … that his back was very painful.  He sat down and rested for about five minutes before going to the safety section … informing them that he had been injured.  … He then went to QEH where he was treated … ” (para.  7).

In Yeung Sze Hoi v. New Trade Good Food Centre Ltd., HCPI 568/2004 (22 April 2005), a junior cook injured his back.  The accident happened:-

“[when] he intended to move a box of preserved vegetables to reach boxes of bamboo shoot, he felt a snap sound on the left side of his body and his left side became weak and he fell onto the floor on his left side” (para. 1).

15.  What makes the plaintiff’s allegation more inherently implausible is the amount of his work since the alleged accident (as shown in his work schedule).  The work record shows that from 30 January to 14 February 2007, he worked for 15 days (day-off on 4 February 2007).  The number of passengers he handled each day ranged from 24 (7 February) to 87 (2 February) (with a daily average of 54 passengers).  There must have been a substantial quantity of relatively heavy luggage which he needed to handle (it is the plaintiff’s case each passenger would have at least one piece of luggage on average).  I do not accept his explanation that he was able to endure the back pain by will power and taking medicine.

16.  There is also evidence to show that the plaintiff is not a reliable witness in that he has exaggerated the extent of his back injury.  This finding stems from a comparison between his complaints to the doctors and some of his behaviour observed in the surveillance video.

17.  The plaintiff’s complaints to the doctors have been summarized in the joint medical report:-

(1) as at the end of February 2007 (about one month after the alleged accident), persistent low back pain, radiating down to the right leg: para. 42 thereof;

(2) as at mid-March 2007 (about 1-1/2 months after the alleged accident), walking and sitting tolerance was only 5 to 10 minutes: para. 43 thereof;

(3) 70% subjective improvement as at about mid-June 2007 (about 4-1/2 months after the alleged accident): para. 43 thereof;

(4) as at the end of June 2007 (about 5 months after the alleged accident), increased back pain after prolonged sitting; simulated driving could be tolerated up to 20 minutes: para. 40 thereof;

(5) continuous low back pain with an intensity of “normal to 6” (whatever that may mean), or 9, out of 10, bilateral sole numbness, weakness of both lower limbs and sexual difficulty as at mid-July 2008 (about 1 year and 5-1/2 months after the alleged accident): para. 46 thereof.

18.  The surveillance video covered 3 days: 18, 21 and 22 July 2008 (around the time of the joint medical interview).  It has not been played in court, but it has been included in the list of documents in July 2009 (about 8-1/2 months before trial).  The plaintiff was cross-examined on (a) the written summary about his activities prepared by the private investigator company with reference to the video, and (b) the photographs extracted from the video.

19.  The private investigators concluded that the plaintiff could walk fast and in normal gait, travel in crowded public transport, walk for about one hour and walk up long flights of stairs without signs of difficulty.  Further, several matters were brought up by the defence in cross-examination in particular.

20.  When the plaintiff was in the park, he was able to grab and hold up his daughter which weighed 20 odd lb more than once.  There was no sign of pain or discomfort when he did so.  He also agreed with defence counsel he had no problem doing so.

21.  The plaintiff also agreed there was no problem for him to walk up about 27 steps of stairs, or to walk for more than 30 minutes without rest.

22.  The plaintiff chose to go up to the upper deck of a bus on all 3 days; there was no reason given as to why he did not stay in the lower deck.  He agreed he could do so even when the bus was moving.

23.  It is true the surveillance video was primarily used by the defence for the purpose of quantum of damages, but the reliability of the plaintiff’s testimony should be considered in the light of all the evidence put before the court.  Observations by the higher courts as to how trial courts should approach credibility/reliability have been made in quite a few decisions; one of them was Tradepower Holdings (In Liquidation) v. Tradepower (Hong Kong) Ltd. and Others CACV 101/2008 (5 November 2008), para. 17 to 20; [2010] 1 HKLRD 674, para. 137 to 140 (especially at para.  140).

Liability

24.  The plaintiff’s pleaded case regarding liability (for both negligence and breach of contract) is in essence:-

(a) failing to equip the bus with a luggage compartment;

(b)    failing to make available sufficient space for luggage movement and/or storage inside the bus;

(c) failing to train, instruct or supervise him for handling heavy luggage;

(d)    failing to warn him of the danger inherent in handling heavy luggage;

(e) requiring him to work alone (there is another plea of failing to provide him with assistance.  But this boils down to the same complaint).

There are also general pleas of the failure to provide a safe system of work and exposing the plaintiff to risk of injury.

25.  The plaintiff’s case relating to the breach of statutory duties is premised on s. 6, Occupational Safety and Health Ordinance (Cap. 509) (especially ss. 6(1) and 6(2)(a) and (b)) which provide for what can be called an employer’s general duty of reasonable care.  More specifically, they stipulate that an employer should:-

(1) ensure his employees’ safety and health at work;

(2) provide or maintain plants and systems of work that are reasonably safe and without risks to health;

(3) make arrangements to for ensure, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances.

(a) Findings : the Alleged Accident

26.  By reason of the matters set out in para. 7 to 23 above, I am not satisfied that the plaintiff has established the injury was caused by the accident which he alleged to have taken place.

(b) Findings : Duty of Reasonable Care

27.  Because of the finding made in relation to sub-heading (a) above, strictly it is unnecessary to consider this sub-heading: the burden of proof being on the plaintiff to establish his case.  I shall do so in case it is still necessary.

28.  During his cross-examination, the plaintiff agreed with defence counsel that:-

(a) he knew the proper posture for lifting heavy objects (cp. para. 24(c) above);

(b)    he knew the employment with the defendant would involve lifting heavy objects;

(c) there was no need for instructions to be given for lifting heavy objects but the employer had warned him of the risks involved (cp. para. 24(c) and (d) above);

(d)    there was no need for more than one person to perform the lifting work (cp. para. 24(e) above).

29.  Further, the plaintiff fairly agreed in cross-examination that the lifting action involved is similar to that for household chores, placing a piece of luggage into the trunk of a taxi and the like.

30.  Not every admission made a witness should be given full weight; sometimes the purported admission is in reality a matter of mixed law and fact.

31.  But in this instance, the matter involved is a simple act of lifting heavy object, which is an act common in daily life (as the plaintiff fairly accepted during cross-examination).  Accordingly, full weight should be placed on the above admissions.

32.  Hence, of the matters relied upon by the plaintiff in para. 24 above, only those set out in para. 24(a) and (b) warrant further consideration.

33.  In relation to para. 24(a), the plaintiff’s testimony is that a luggage rack should be installed.  I agree with the defence that merely installing a luggage rack will not necessarily reducing the risk of back injury.  The design and location of the rack is important, so is the space available around the rack.  The plaintiff has not specified any of these matters.

34.  Judging from the plaintiff’s testimony, he appears to be referring to a multi-level rack.  I also agree with the defence such a rack does not reduce the risk of back injury, and may in fact increase it.  As can be seen from the photographs in the trial bundle, the existing arrangement is that the luggage is stored at either:-

(1) the floor beneath the seats, in which case no lifting action is involved.  The plaintiff only needs to push the luggage into the gap with his hand(s) or feet;

(2) the leg-room between a seat and the one in front.  Little lifting action, if any, is involved.  The plaintiff only needs to push the luggage and/or turn its direction to manoeuvre it into that space;

(3) on the seat, in which case lifting action is involved.  The photographs show that the seat is slightly lower than knee level (less than about two feet high).  There is evidence some of the luggage have to be stacked up; but the extent of stacking is unclear.

35.  According to the actual measurement of the defence (which is undisputed), a bulky suitcase is about 2-1/2 feet high (para. 4, supplemental witness statement of Cheung Sik Chow (“Cheung”); see also para. 28, the plaintiff’s witness statement).  Thus, if such item has to be placed on the seat, the plaintiff will have to lift its bottom about 2 feet above the floor.

36.  On the other hand, the upper level(s) of a multi-level luggage rack will have to be more than at least 2-1/2 feet above the floor (say, 3 feet or 3-1/2 feet high), so as to enable items such as a bulky suitcase to be placed at the lower level.  Accordingly, a luggage handler (such as the plaintiff) will have to lift the bottom of the suitcase about than 3 feet or 3-1/2 feet above the floor.

37.  Thus, this aspect of the plaintiff’s case will have to be premised on the defendant’s duty to provide either reasonably sufficient horizontal storage space, or reasonably sufficient storage space with a multi-level luggage rack; in other words, the averments in para. 24(b), or para. 24(a) together with (b) above.

38.  It goes without saying that the more luggage space is available, the easier it will be for luggage to be handled; hence, the less risk for related injuries.  The law does not however require an employer to provide unlimited luggage space; all it requires is a reasonable amount of luggage space.  The question for this aspect of this action is therefore: has the plaintiff established that the defendant has failed to do so?

39.  The plaintiff has again not stated what the reasonable amount of luggage space is, he merely contends that the luggage space presently available in a 29-passenger bus is not reasonable.  Further, although he complains that handling luggage inside the bus was difficult, there is no allegation awkward or unnatural posture has to be adopted when he did so.

40.  The plaintiff emphasised the relatively narrow space of the passageway inside the bus; its width was estimated to be one foot (para. 29, plaintiff’s witness statement).  But the estimate is more likely to be wrong.  The probable width can be gathered from the following photographs:-

(a) those attached to the supplemental witness statement of Cheung (see also para. 35 above);

(b)    those taken by the plaintiff (pp. 351-4, trial bundle C).

41.  The defendant’s actual measurement of the length of the bulky suitcase is 3 feet (see also para. 29, plaintiff’s witness statement).  That item fits within the width of the seat (see the photographs referred to in para. 40(a) above; those referred to in para. 40(b) above shows another suitcase apparently of similar width).  Thus, the seat width is about 3 feet.  Judging from the plaintiff’s said photographs, the width of the passageway is more likely to be about 1-1/2 feet.

42.  In any event, as stated above, only the luggage stored in the manner described in para. 34(3) above requires any substantial lifting action.  While the inside of a bus is not exceedingly spacious, the luggage handler can make use of the seatback as a means of support when lifting the luggage.  For example, he can gain support by holding the seatback with his left hand while lifting the luggage with his right.

43.  With the above matters in mind, the plaintiff has not been able to establish any breach of duty based on para. 24(a) and/or (b) above.

(c) Findings : Contractual Duty

44.  By reason of the matters set out in para. 1 and 11 to 24 and 28 to 43 above, I am not satisfied any breach of contractual duty has been established.

(d) Findings : Statutory Duty

45.  By reason of the matters set out in para. 1 and 11 to 25 and 28 to 43 above, I am not satisfied any breach of statutory duty has been established.

Quantum of Loss

46.  For completeness, I shall also deal with the quantum of loss briefly.

47.  The amount of the plaintiff’s average monthly income is disputed.  In short, I prefer the plaintiff’s evidence regarding this aspect for two reasons.  One, his evidence is supported by documentary evidence in many ways.  Two, Cheung is clearly not responsible for the defendant’s wage or accounting matters.  He did not deny he relied on information provided by others.  As a result, he could not explain many discrepancies in the defence documents when being cross-examined.

48.  In view of the matters set out in para. 11 to 22 above, I conclude that the plaintiff has exaggerated his injuries.  For that reason, and subject to para. 47 above (relating to average monthly income), I prefer the quantum proposed by the defence (summarized below).

49.  The parties’ quantum for pain and suffering and loss of amenities is relatively $250,000 and $55,000.

50.  The plaintiff seeks a pre-trial loss of earnings for a period of 27 months (31 January 2007 to 30 April 2009).  The defence contends the period to be 11 months (31 January to 31 December 2007).

51.  The plaintiff’s quantum for post-trial loss of earnings is based on a multiplier of 12 and a wage difference of 8,932.75 ($16,432.75 – 7,500).  Further, the loss of mandatory provident fund is put at $85,136.56.  The defence denies any such loss.

52.  The plaintiff submits the loss of earning capacity should warrant an award of $45,000 whereas the defence contends no award should be made.

53.  The plaintiff’s figure for special damages totals $17,852.  The defence figure is the same.

54.  It is common ground advance payment of $64,689.72 has been made.

Conclusion

55.  The plaintiff’s claim is dismissed.

Other Matters

56.  In the supplemental closing submissions, the plaintiff contends that the defence agrees there was no malingering: para. 11 thereof.  Reliance is placed on para. 15, defence supplemental closing submissions.

57.  Because of the matters set out below, I do not accept the contention.

58.  One, the answer to revised statement of damages expressly alleges exaggeration of injuries: see para. 6. 5, 6. 8, 12 and 14 to 15 thereof.

59.  Two, the defence closing submissions also expressly alleges exaggeration of injuries: see para. 30(g) and 38 thereof.

60.  Para. 15, defence supplemental closing submissions should be read together with, and understood in the light of, the passage quoted therein:-

“For a lawyer, malingering is a question of fact, not law … It does, however, have a connotation of dishonesty which is potentially serious for the claimant, which requires very cogent evidence of the claimant’s intention to deceive.  Even apparently strong evidence, such as a video of the claimant performing tasks that he claims unable to perform, is not necessarily conclusive.  The court may be reluctant to draw an inference of dishonesty, for a variety of reasons.  But this does not mean that the claim is bound to succeed.  A court is entitled to reject evidence … without condemning the witness as dishonest.  The burden of proof lies with the claimant, and the exaggeration of symptoms … whether conscious or unconscious, remains an exaggeration of symptoms … Thus, … it is rarely essential for a defendant (and even less so for his expert medical witnesses) to establish outright malingering” (Jones: Law, Lies and Videotape: malingering as a legal phenomenon in Halligan, Base & Oakley: Malingering and Illness Deception (2003), p. 219 quoted in para. 1, defence supplemental closing submissions).

61.  I also agree with the defence the doctrine of res ipsa loquitur does not apply because the cause of the alleged accident was known to the plaintiff.

Costs Order

62.  The parties agree the usual rule that costs should follow the event should apply.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the plaintiff to the defendant to be taxed if not agreed.

63.  The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations (Cap. 91A).