KWAN YIM KWAN, PEGGY v. NAMKUNG PROMOTIONS (WORLDWIDE) LTD

HCPI 938/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 938 OF 2004

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JUDGMENT

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1. Judges are only mortals.  Being mortals we are obviously not like God who is omniscient and omnipotent.  For that reason, for hundreds of years the English law has provided that in a civil claim usually it is the plaintiff who should prove, on a balance of probability, her case, and in a criminal case the prosecution to prove beyond reasonable doubts the guilt of the defendant.  Judges, not being God, cannot sieve out truth from falsehood.  Once there are so much falsehood in one’s case, it is difficult, if not impossible, for a mortal judge to sieve everything out and obtain the truth as what God Himself can only do.

2. In this case it is actually common ground that in the morning at about 9:45 a.m., on Friday, 29 October 2001, Madam Kwan, the plaintiff herein, suffered injury to her right eye or the cornea thereof — a kind of corneal abrasion.  According to her that was after she had received an order from her then superior, Mr Luk, to get ready certain cardboard boxes for sending out samples abroad the following Monday.  

3. From the graphic representation of Madam Kwan, which I must say is a very illuminating and beautiful graphic design in the bundle, she described serially as to how the accident occurred.  That involved removing a number of things underneath her own desk which, she said, Mr Luk himself had placed them there.  This raised serious doubts as to her credibility in respect of how the accident actually occurred, e.g. in photograph 5, after she had to remove a number of papers, she even had to remove a very heavy columns of drawers in order to reach certain flattened cardboard for the purpose of reassembling them into boxes for the use of Mr Luk. 

4. On the 6^th floor of Ocean Centre where the defendant’s office was, Federal Express, a company commonly called FedEx was just next door.  It is inconceivable that Madam Kwan would have to take those carton boxes from such a place so laboriously.  (She did not have to store them in the first place.)  That was a Friday and she only had to get some boxes ready by Monday morning.  The first thing that should occur to her was to go next door and get the necessary boxes.  In her cross-examination she said sometimes boxes were not available from FedEx.  But she had not asked.  She would not know there would not be boxes on Monday morning either. 

5. Ms Leung, the succeeding secretary, gave evidence (whose evidence I accept), said she never had the experience that FedEx would run out of boxes.  Strangely enough, even after she changed her courier to DHL for whatever reason, she still continued to ask FedEx for boxes and they readily supplied her with the same. 

6. Thus the first serious doubt was : Why would Madam Kwan use the most laborious way of obtaining boxes from underneath her desk, behind all those piles of papers, dustbin and drawers instead of just going next door to get the boxes.  In fact after Madam Kwan was asked to give up the desk for Ms Leung for a short while and after her resignation, Ms Leung had cleared the table and things collected underneath the table.  She only found papers and documents; some were useful and they were accounts papers.  She filed them away; other were just rubbish, she threw them away.  She found no boxes.

7. According to Ms Leung, when she first came, the office was untidy.  Cockroaches were running around.  She was about to resign until Mr Luk told her that Madam Kwan was about to go.  She stayed behind, tidied up the office as appeared in another photograph.

8. The office set up was in such a way that Madam Kwan was the only secretary-in-charge and there was only one senior supervising her :  previously a Mr So and later on Mr Luk, and they were engineers.  According to Mr Luk, he had to go to the Mainland in order to discharge his duties.  That would be about one-third of his time a year.  Thus Madam Kwan was the one in charge of the whole office and for some time she would be alone in the office.  I accept from the defence that Madam Kwan was the one responsible for running the administrative side of the office, and that would include its tidiness.  If she made a mess of the office and stored things underneath her own desk, it is her responsibility to tidy it up.  That was probably the case but she just blamed Mr Luk for putting things underneath her desk.

9. If the accident happened because she had to stoop down and remove things from the desk and accidentally hurt her own eye, there was no liability at all on the defendant since :

(a)              she was responsible for the tidiness of the office; and

(b)             she was responsible to clear up everything in the office to make it clean and safe.

10. Unfortunately in the cross-examination of Madam Kwan, she was changing evidence and giving answers from the top of her head as it went along, e.g. she said she had raised the question of tidiness with Mr So.  Then she said Mr So dodged her suggestions and said he would consider it later.  I cannot see why Madam Kwan could not clean up the office herself together with some help from the cleaner who came three times a week, albeit 10 odd minutes each time.  If Ms Leung could clean up the office why not Madam Kwan.  She said she had obtained a quotation of about $900 odd to clean up the carpet.  She said the carpet was wet and slippery.  There was no evidence at all apart from her bare allegation that the carpet was slippery and wet.  Mr Luk said it was not except a patch in a small room which was not in the common area.  Ms Leung said she did not experience any wet or slippery floor at all.  In Madam Kwan’s time the carpet was not cleaned, and even in Ms Leung’s time up to the time they moved to Silvercord opposite in Canton Road in 2005, the carpet had never been cleaned.

11. I do not understand why for an expense of just $900 odd Madam Kwan considered the head office in the U.S. would have to give approval, and without that she could not engage a cleaner to do the job.  Whereas when Ms Leung suggested a petty cash of $3.000 each month to be used in the office, that was readily approved by her superior.  I consider that all these pieces of evidence were just made up by Madam Kwan as excuses to explain why she herself had not discharged her duties as the one in charge of the running of the office.  She could conveniently arrange someone, and that is herself, to stay behind one Saturday afternoon for such carpet cleaning, if required.

12. She said Mr So was there and later on the main boss, Mr Namkung was there.  She raised it with Mr Namkung and Mr Namkung said in respect of the tidying up of the office it should be left to the incoming manager to be employed.  I must say I really fail to see the logics of such a company leaving everything behind to the incoming manager whereas they have an administrative secretary in charge of the office to do the job.  Therefore I came to a firm conclusion that the carpet required no cleaning.  The allegation of Madam Kwan was to explain why she hurt her eye. 

13. I actually find Madam Kwan quite intelligent, but whenever it came a difficult question she said she did not understand the question, e.g. when she was asked why Ms Leung said she had no problem in tidying up the office and tidying up everything under your desk, she just said : “After I have left, I have no comment.  When I was there that was the condition.”  That obviously is not an answer to the question.  Another example : “As a secretary do you think it’s your duty to sort everything out before Ms Leung came?”  And she said : “I don’t understand the question.”  When the question was repeated, she reluctantly had to agree that she could do it but she required assistance.  What I do not understand is why Ms Leung, without assistance apart from the cleaner, could do it whilst she could not do it. 

14. I do not know whether Madam Kwan has collector’s syndrome, but then I do not have to go as far as that.  There are of course people who would like to store up things.  Any way, things were unnecessarily stored underneath her desk.  Ms Leung has categorically given evidence and said that the office is quite spacious, she had no problem in tidying up everything.  She could file all the useful documents, throw away the rubbish, put all the sample boxes back to the storeroom and apply insecticide and set up cockroaches catches.  Thereafter no more cockroaches were running around.  This is just simple hygiene and management.

15. Eventually Mr Sakhrani for the defence put it to Madam Kwan, that was after 11:48 a.m. yesterday :

“Q:    According to you that it is your duty to file the documents, store the samples and keep the office tidy and safe.”

A:     I agree.

Q:     There is no need to put carton boxes underneath your table.

A:     I don’t understand this question. 

(The questions was repeated.)

A:     I agree.”

16. In respect of quantum, it was put to Madam Kwan that Dr Cheung opined that :

“Q:    Your situation was minimum.

A:     I agree.”

In fact after the corneal abrasion, apart from suffering from minor discomfort, the medical finding was that her condition has healed and she might from time to time require eye-drops, and that is all.  But she insisted she has to rely on pain-killer and the interruption of applying eye-drops has caused her to lose her job as she was slow as complained by a number of office employers after the accident.

17. I accept Dr Cheung’s opinion.  Dr Cheung was actually the eye doctor instructed by the plaintiff.  He opined that the injury was quite minimal and Madam Kwan could actually resume her job as a secretary.

18. There is another thing which I would like to comment in respect of quantum.  Madam Kwan put forward a case that she has a huge loss of future earnings, up to $6 million by reason of the fact that she could not go on to take the ACCA examination, and if she could do so after two further examinations she could be a member of the ACCA earning about $30,000 a month.  In fact Mr Sakhrani put it to her that she had only passed a very preliminary examination and therefore she was far from attaining the level of an ACCA member or associate member.  There are many more examinations to go through before she could attain that level.

19. Be that as it may, although there is no direct evidence as to the career of a chartered accountant or an associate member of ACCA, I can of course also take judicial notice that Madam Kwan was far from such a level. 

20. According to the medical evidence, Madam Kwan just required to apply eye-drops from time to time to cure her dry eyes.  During this seven years’ period in the past, in light of the fact that she was not gainfully employed, at least for half of the time, I wonder why she could not usefully use that period of time to study for the ACCA examinations.  She said that she could not do so because she could not read as she used to.  But according to the medical evidence, all she needs is to apply eye-drops from time to time if she has dryness of the eye, a condition which is also common to others who have no corneal abrasion.  In her own self-study, nobody would complain that she was slow when she only disturbed her own study by applying eye-drops.  She could actually do so slowly or at a slower pace.  Why she could not do it?  I always wonder why.  If she could make use of those free time, apart from preparing this litigation and applying for jobs and working from time to time, according to her own testimony in respect of time, she would be an associate member of ACCA now.  But she did not do so, she blamed it on the accident.  I find that unconvincing. 

21. All in all, I accept the evidence of Mr Luk in spite of the fact that he required compensation from the defence.  I find that reasonable since he suffered from spending time in this case instead of attending to his consultancy job.  I do not find that he came to this court to lie just because he received remuneration.  His evidence is reasonable, he did not see the accident, he did not order boxes to be removed from underneath Madam Kwan’s desk, he was just told by Madam Kwan how the accident occurred and he filled up page 45 of Bundle A.  That was not an admission of liabilities.  That was a report to Labour Department for the purpose of employee’s compensation.  I mean that cannot be taken as truth stated therein, that was only a repetition of what Madam Kwan had told him.  The reason why we have employee’s compensation was a provision by the law to compensate employee from having an injury during work without having to prove liability on the part of the employer.

22. I find that the plaintiff has failed to prove negligence of her employer, breach of employer’s duties, occupier’s liabilities and liability under OSHO on the part of the defendant. 

23. Accordingly, the plaintiff’s claim is dismissed with costs to the defendant, to be taxed if not agreed.