LAM MUI YING v. BONDWOOD DEVELOPMENT LTD

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JUDGMENT

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1. Madam Lam Mui Ying was aged 67 in 1989. She was employed on 24th August 1989 as a dish-washer at the Guilin Garden Restaurant at East Town Building, 41 Lockhart Road, Wanchai. She normally worked from 2 p.m. until midnight. She had been working there for four months as a dish-washer and working with her in the kitchen were three other fellow dish-washers.

2. The kitchen where she worked was on the third floor and the dirty dishes, from the restaurant situated on the second floor, would be brought up to the kitchen by means of a lift. The Defendant restaurant engaged a young man whose job was to bring the dirty dishes up from the lift, walk across the floor and hand these dirty dishes with residue food on them to the dish-washers. The floor which was made of ceramic tiles often became wet and/or dirty and required to be kept clean and dry by constant sweeping. This was also the work of the young man.

3. On the day in question, the young man who usually did the work of moving the dirty dishes did not return to work. Instead, a temporary worker aged 45, was standing in for the young man. Unfortunately he did not know what he was supposed to do as he was not supervised or if he did, he did the work very badly and carelessly. He put the dishes in basins and moved the basins, full of dirty dishes, out of the lift and put them on the floor near the lift doors and as a result, dish-washers including the Plaintiff had to walk across the floor to where the dishes were piled up. Very carelessly, this worker stacked too many dirty dishes up in the basins with the result that the dishes at the top fell out and the waste food fell all over the floor causing the floor to be even more wet and slippery than usual. He did not wipe and clean the floor at all.

4. There was supposed to be a supervisor in charge of the kitchen but he was off duty that day. Madam Lam and the other dish-washers therefore had to walk across the kitchen floor, pass through the food residue on the wet and slippery floor to get to the dishes in order to lift them up and carry them back to the wash basins so that they could be washed. In the course of doing this the accident occurred. While picking up the dishes, Madam Lam slipped on the very slippery floor full of food residue and she fell on her right shoulder and right elbow and sustained serious injury. These injuries were caused by the negligence of the Defendant, in having an unsafe place of work and in failing to provide a safe system of work for Madam Lam. I find the Defendant to be wholly responsible for the accident.

5. The injuries sustained by Madam Lam were described in three medical reports. The first report was that of Dr. Philip Mao dated 17th July 1991. As a result of that report of Dr. Mao, Madam Lam was sent to see a Dr. Brian Choa, a specialist neurologist and by his report of 16th August 1991. Dr. Choa came to the conclusion that the injuries suffered were more serious than originally assessed by Dr. Mao. Just shortly before the hearing, there was a further medical report from Dr. Philip Mao dated 14th June 1995. Dr. Mao gave evidence before me and I am quite satisfied that the injuries of the Plaintiff stated in the Amended Statement of Claim have been fully proved.

6. In summary, I can say that I am satisfied that she has suffered injuries to her right elbow and right shoulder and more seriously, also to her neck, so that these injuries caused changes in that part of the shoulder forming a condition not unlike what is known as a "frozen shoulder". Her right elbow could not be fully extensive. Her right hand is numb and there was sensory loss over the dermatomes supplied by the 4th and 5th cervical roots on the right side, which refer to the area on the side of the neck, over the right shoulder tip and the outside of the right upper arm. There was also a severe degree of cervical spondylosis with narrowing of the disc spaces between the 3rd and 7th cervical vertebrate and encroachment upon the nerve canals between C3 and C7. She suffered injury to the cervical nerve roots supplying right upper limb. The Plaintiff suffered a 32% impairment of the whole person and is now significantly disabled.

7. I have seen Madam Lam and I have seen her inability to use her right hand and her right arm. The movement in her right arm is not only very limited but she is forced to carry her right arm at what I will call a horizontal V with her elbow bent outward all the time as it causes her pain to have her right arm hanging down by the side. In many ways, this condition makes it worse for her than having no right limb at all. There is no doubt that she had been suffering considerable pain from this condition and its gets worse of course, every time there is a change of weather. She goes back regularly to hospital but her condition will not improve and with age will only get worse.

8. The restriction in the use of her right arm and hand was such that she had been unable to write with her right hand and what is worse is that she could not use her right hand to pick up chopsticks and her normal meals in the way she used to. She is now reduced to having to use her left hand for her meals, by the use of a spoon rather than chopsticks, because she could not handle the use of chopsticks with her left hand. She also has to use her left hand for doing everyday tasks. For all practical purposes, as far as I can see, she had lost the use of her right hand and arm but as I said before, her suffering and loss in many ways can be said to be worse than someone who had lost the whole right arm.

9. In these circumstances, it comes as no surprise to me when I was told and the evidence shows that she had tried to find work and could not. No one would or could possibly employ an one-armed dishwasher. She has not had any employment since the accident. Financially the consequence to her is disastrous and this was some 6 years ago.

10. I can now turn to the assessment of damages. In relation to pain, suffering and loss of amenities under the heading of general damages, I have been referred by Counsel to the four categories of disablement set out in Lee Ting-lam v Leung Kam-ming (1980) H.K.L.R. 657. It is quite clear that of the four categories, Madam Lam cannot possibly fall into the third category of gross disability or the fourth category of disaster. I have however given careful consideration as to whether she might fall within either the first category of serious injuries which is the lowest category or the second category, which is the somewhat more serious category of substantial injuries. It is said at page 660 of the Report in relation to substantial injury that:-

"This category extends to injuries which require treatment in hospital for many months, and leave the victim with much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life."

In my view, having seen Madam Lam and the very restricted mobility she has and worse still the constant pain of having to bear the burden of a useless right arm and hand which she had to carry all the time in a position of horizontal V, I consider that she could fall into the very low end of the second category of substantial injury. So far as the award for that second category is concerned, in the recent case of Attorney General v Chun Yat-nam [1995] 1 Hong Kong Cases 218, the Court of Appeal held that in relation to that second category the bracket figure should be, in relation to pain, suffering and loss of amenities, $335,000 to $415,000. In my view, having regard to my assessment of the injuries caused to Madam Lam and of the very serious pain, suffering and loss of amenities, a fair award under this head of general damages for pain, suffering and loss of amenities would be $350,000 and this I award.

11. So far as the loss of future earnings is concerned, I accept the submissions and the evidence produced before me and I find that the proper multiplier should be one for Madam Lam's loss of future earnings on the basis of the figure of $7,653 per month x 12 months, thereby arriving at a figure of $91,836.00 for loss of future earnings.

12. I now turn to special damages. The documents show that she had lost her earnings during the period up to the trial, and the total figure on the basis of earnings at $4,370 per month at time of accident, with a 10% increase every year so that it will reach the figure of monthly earning in 1995 of $7,653, divided by two, to arrive at an average monthly earning of $6,012 during the period from the time of accident to the date of trial. She had lost that average monthly income for a period of 70.5 months and therefore she should be awarded the sum of $423,846 under that heading of loss of past earnings. But from this figure must be deducted the sum of $33,358 in respect of sick leave pay that she had already received. The figure therefore under the loss of earnings during the pre-trial period is $390,488.00.

13. I accept the evidence on:-

The total of all these comes to $10,577.00.

14. I now turn to the question of interest. On the figure of $350,000 for pain, suffering and loss of amenities, interest on this should be at 2% per annum from the date of the writ, that is 17th August 1992 for the period in question of 34.5 months and this comes to $20,125.00. The interest on special damages of $401,065 ($390,488 + $10,577) at 5% per cent being half of the prevailing rate x 70.5 months comes to a figure of $117,813.

15. The gross quantum of damages therefore is:-

The total gross quantum of damages is $980,839.00. The sum of $76,000 had been paid to and received by the Plaintiff under workman compensation. I therefore find that the total quantum of damages which is payable to the Plaintiff is the figure of $904,839 and I so award.