LAUW KA FONG v. BEST CITY LTD.

HCPI 436/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.436 OF 2004

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JUDGMENT

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1. The plaintiff claims damages for personal injuries arising from an accident on 7 February 2002 in which the plaintiff fell from a ladder in the course of her employment with the defendant thereby sustaining back injuries.

Background

2. The defendant is an operator of food counters at which roast meat and ready meals are sold.  In 2001, it opened a total of 18 food counters, each within a Park’n Shop supermarket.  Each of these food counter was managed by a food counter manager.

3. The plaintiff was one such food counter manager in the employ of the defendant since 1 August 2001.  She was responsible for managing the food counter within the Park’n Shop supermarket at Cheung Fat Shopping Centre at Tsing Yi.  She was the only female counter manager of the 18 food counter managers employed by the defendant.

4. Before working for the defendant, the plaintiff had been in the Chinese restaurant business for over 10 years as a waitress first and then working her way up to a captain.

5. When the plaintiff started work with the defendant in August 2001, there were a total of 16 staff operating at her food counter.  Apart from herself, there were nine cooks, a dishwasher and five salespersons.  The food counter comprised a kitchen, an area for roasting or barbecuing meat, a counter sales area and a storeroom.

6. In August and September 2001, business at the food counter was good.  In October 2001, business dropped because of competition from the nearby CRC supermarket which also started a similar food counter.  Moreover, in November 2001 Park’n Shop announced that it would resume the space occupied by the food counter in six months’ time.

7. At the end of December 2001, the defendant started to lay off and reduce its staff at the food counter to reduce expenses.  The nine cooks were reduced to two, the dishwasher became part time working only half days and the five salespersons were reduced to three.  The plaintiff had to put in extra work because of the staff reduction.

8. The floor of the food counter was slippery due to the fact that the nature of the work made it inevitable that oil, grease and water often dripped on the floor.  The use of matting on the floor to absorb the oil and grease was not permitted by the supermarket management.  The staff of the food counter could only take turns to mop up the floor at frequent intervals whenever they discovered oil, grease or water.

9. Initially, the defendant had intended to provide food counter staff with slip resistant boots made in Japan for working at the food counter.  However, due to the high cost of such slip resistant boots, this was never implemented by the defendant but instead cheaper rubber boots were provided to its staff.

The accident

10. One piece of equipment provided by the defendant at the food counter was an aluminium-folding ladder with three rungs on each side.  It was the only ladder available at the food counter and was heavily used.  On the day of the accident, the plastic covers on the sides of the top rungs had already worn out and was no longer in place.  As a result the top rungs became shaky and unstable.

11. It was the plaintiff’s evidence that there had been earlier complaints made to the defendant by other staff as to the shaky and unstable condition of this ladder and there had been earlier occasions when other staff had fallen down from it because of its condition.  However, despite such complaints, the defendant did not see fit to replace the ladder but that the staff were told to continue to use the ladder.

12. At about 10.30 a.m. on 7 February 2002, the plaintiff was taking stock in the storeroom of the food counter.  She had on a pair of the rubber boots provided by the defendant and had walked in the kitchen area earlier that morning.  She mounted the ladder to reach the shelves in the storeroom.  As soon as she stepped on the top rungs of the ladder (where the four black plastic covers on the side of the rungs had gone missing) she felt the rungs move and the ladder shake.  Because there was nothing onto which the plaintiff could hold, she slipped, lost her balance and fell from the ladder hitting her lower back against a trolley before she landed on her buttocks on the floor.

13. After her fall, one of the cooks found her on the floor of the storeroom.  The plaintiff was in great pain and could not get up.  The cook helped her up to take a rest.  The plaintiff then phoned Mr Chan Tak Cheung, one of the district manager of the defendant.  Mr Chan then came over to the food counter where the plaintiff worked and took her to Yan Chai Hospital for medical treatment.

Plaintiff’s evidence

14. The plaintiff herself gave evidence as to the background of her work with the defendant and as to how the accident happened as stated above.  She further clarified that the accident was caused by a combination of the defective and shaky condition of the ladder as well as the slippery soles of the boots.

15. She also called Mr Chan Tak Cheung to be her witness.

16. He confirmed the plaintiff’s evidence that she had, prior to her accident, complained to him about the unsafe condition of the ladder used at the plaintiff’s food counter.  Despite such complaint by the plaintiff, he had decided not to replace the ladder for two reasons.  Firstly, to save on expenses and secondly, because the defendant had been notified by Park’n Shop that the space for the food counter would be repossessed by Park’n Shop in a few months’ time.  His reply to her was therefore to continue to use the defective ladder but to be more careful.

17. There was also evidence from Chan that apart from the food counter managed by the plaintiff, he had also received complaint from another food counter under his control and operated by the defendant of defective ladder, which was also a similar type of three rung aluminium ladder to the one used at the plaintiff’s food counter.  In respect of this other complaint, the ladder was replaced at a cost of about $300 odd.  This was because a larger profit was made at that other food counter and they were allowed to operate for a longer period by the Park’n Shop in that supermarket.

18. Chan also gave evidence that the defendant had initially intended to provide slip resistant boots made in Japan to all the workers at the 18 food counters.  However, because those boots cost over $700 per pair, it was decided that in order to save on expense, the defendant would only provide cheaper rubber boots to its workers at these counters costing only $120 to $130 per pair.  According to him, the cheaper version of boots were not slip resistant.

19. Quite apart from the oral evidence adduced from the witnesses, photographs of the ladder in question produced at the trial supported the evidence adduced by the plaintiff and showed that the four coverings on the sides of the top rungs of the ladder had gone missing.

Defendant’s evidence

20. No witness was called by the defendant despite the fact that the defendant had served a witness statement (which was in Chinese without translation) in these proceedings.

Findings on the evidence

21. Having heard the evidence of the plaintiff and Chan, and having seen them in the witness box, I have no hesitation in accepting their evidence as being true and reliable.

22. Moreover, there is no evidence adduced by the defendant to contradict any of the plaintiff’s evidence in relation to the accident and how it happened.

23. In the circumstances, I can see no good reason not to accept in its entirety the evidence given by the plaintiff and Chan as to the circumstances relating to this accident and how it happened.

Liability

24. In so far as the issue of negligence of the defendant is concerned, it has been conceded by counsel for the defendant that negligence of the defendant is not contested in this case.

25. However, the defendant disputes the plaintiff’s claim only to the extent that the defendant says that there was contributory negligence on the part of the plaintiff.

26. Contributory negligence therefore is the only matter in issue between the parties on the issue of liability.

27. On the facts as found by me, there can be no question but that the defendant, being the employer, must be negligent in providing a defective ladder for use by the plaintiff in her work.  On that score alone, even without consideration of the boots, the defendant must be liable.

Contributory negligence

28. As for contributory negligence, the submission of the defendant is put on the following footing :

(a)	the plaintiff was well aware of the shaky and unsteady condition of the ladder well before the accident because of the earlier complaints by other staff using it and/or falling from it;
(b)	nevertheless the plaintiff still used the ladder without seeking assistance from one of the other workers to steady the ladder while she was on it;
(c)	the excuse given by the plaintiff that the other workers were all so busy such that they could not even spare several minutes of their time to hold on to the ladder when the plaintiff was using it was not reasonable;
(d)	as for the boots, the plaintiff was also well aware that the floor of the kitchen was oily and wet and with such realization the plaintiff ought to have cleaned or wiped the soles of the boots before she ascended the ladder;
(e)	the failure of the plaintiff to get another worker to hold on to the ladder and/or to clean her boots before going up the ladder made her partly to blame for the accident.

29. Normally, contributory negligence is dependant on some fault of the plaintiff contributing to the accident or the injuries to the plaintiff.

30. In the present case, there can be no dispute but that the plaintiff was aware of the defective ladder well before the accident to her because she had actually complained of the defectiveness of the ladder on previous occasions before her accident.

31. However, a court must be slow to find contributory negligence where the employer has failed or refused, as in the present case, to replace defective equipment which ultimately was the cause of the accident.  In so doing, the employer effectively forces his employees to use the defective equipment thereby risking the safety of those employees.  It therefore cannot be right for the employer to later turn around and say that the employee was guilty of contributory negligence when he, with eyes wide open, has voluntarily taken on and assumed the risk of injury to his employee by refusing to replace defective equipment provided by him for use by his employees thereby being in breach of his duty towards his employees.

32. As for the submission that the plaintiff should have asked one of the other workers to hold onto and steady the ladder before mounting it herself, I cannot, on the evidence before me, accept that submission.

33. The plaintiff’s case have always been that it was the top rungs of the ladder which was shaky and unsteady because the four plastic covers originally on the side of the top rungs have gone missing, thereby making the ladder shaky.

34. To have gotten a co-worker to hold on to the ladder would not have helped in the least since all that the co-worker could do would be to hold onto the legs of the ladder.  That would not have prevented the shaky and unsteady condition of the top rungs.

35. Even though the plaintiff realized that the ladder in question was shaky and unsteady, I am not prepared to find her to be contributorily negligent in the present case, since she had no alternative but to use the defective ladder provided to her.

Injuries and treatment

36. After the accident the plaintiff was taken to the Accident and Emergency Department of Yan Chai Hospital.  X-ray taken at the hospital did not reveal any bony lesion or fracture.  She was discharged the same day with analgesics.

37. The plaintiff resumed work at the food counter two days later on 9 February 2002 and carried on working for some 10 days.  On 19 February 2002 she could not tolerate the pain any more and sought treatment at Tsing Yi Town Clinic.  There, she was diagnosed with sprained lower back and was put on physiotherapy at Yan Chai Hospital which started on 25 February 2002.

38. The plaintiff consulted a bonesetter and X-rays taken in February 2002 showed subluxation of the coccyx.

39. When doctors at the Tsing Yi Town Clinic were informed of such X-ray findings, they took further X-rays which revealed some abnormality.  The plaintiff was then referred to the A & E Department of Princess Margaret Hospital (“PMH”) where further X-rays were taken.  But, again, doctors at PMH reassured her that there was no definite fracture and she was discharged with medication.

40. Some 20 sessions of physiotherapy was carried out at Yan Chai Hospital but there was little improvement to her condition.  Physiotherapy stopped after 19 June 2002.

41. On 26 July, the plaintiff again attempted to resume work at the food counter but could only carry on working for half a day due to the pain.

42. In October 2002, she was referred to the Orthopaedic and Traumatology Department of PMH for further management.  X-rays taken there showed a curved coccyx.  Local steroid injection was administered but the coccyx pain was not relieved.  She was admitted to hospital from 4 to 10 March 2003 for management of her persistent pain.

43. Eventually she was referred for an MRI scan of the lumbro sacro spine which was performed at St Teresa’s Hospital on 11 March 2003 at the plaintiff’s own expense.  The scan revealed a linear fracture at S1 and fine cortical fracture at S3 of her sacrum.  By way of incidental finding, she was found to have degenerative disc diseases at L4/5 and L5/S1 levels, with dehydration signal and small-sized posterior disc protrusions.

44. Thereafter, she has been regularly followed up at Princess Margaret Hospital.  Sick leave was granted by government doctors up to 24 June 2003.

45. The plaintiff was examined by medical experts instructed by the parties, namely, Dr Lam Yan Kit instructed by the plaintiff and Dr Cheung Tak Fai instructed by the defendant.  The opinions expressed by both experts are substantially consistent and can be summarized as follows :

(a)   the plaintiff’s complaints of sacral pain and back stiffness were genuine;

(b)   the sick leave granted by government doctors was reasonable;

(c)   the plaintiff would continue to suffer from residual pain at the sacral and coccyx region;

(d)   she would be unable to resume her pre-injury occupation;

(e)   a job with lighter duties such as that of a cashier would be more suitable for her.

46. At present, the plaintiff still has the following disabilities from her injuries :

(a)   persistent pain in the lower back after prolonged sitting or walking;

(b)   lower back stiffness and right leg numbness on prolonged sitting;

(c)   difficulty in ascending or descending stairs;

(d)   pain on sleeping in a supine position or on the right side;

(e)   inability to have sexual intercourse;

(f)   inability to squat down.

Pain suffering and loss of amenities

47. These disabilities have produced drastic changes to her life.  She could no longer enjoy her hobbies including jogging, swimming, cycling and hiking.  She could not even do window-shopping with her daughter.  When buying foodstuff from the market, her son and daughter had to help her out with the heavier items.  Her daughter took over most of the housework, which she could no longer perform except for some cooking.

48. Moreover, the pain and discomfort had caused her to become bad-tempered which had resulted in poor relationship with her family members.  Her inability to have sexual intercourse led to her marriage break-up, with her husband seeking extra marital relationship in the Mainland.  This led to the plaintiff’s petitioning for divorce in May 2003 and a decree absolute was granted in July 2004.

49. A number of local awards have been cited to me as to the proper quantum to be applied in this case under this head of damage.

50. The awards in those cases cited by the plaintiff ranged from $300,000 to $350,000 while the awards in the cases cited by the defendant ranged from $100,000 to $250,000.  Admittedly all the cases cited were of different degree of injuries and disabilities but were all related to pain in the lower back or spine of the different plaintiffs involved.

51. In the present case, I take into consideration not only the injuries and disabilities of the plaintiff already set out above and the fact that her disabilities seem, from the opinion expressed by the two experts, to be somewhat permanent.  I say that because both experts have assessed her on permanent impairment to the whole person, albeit that they differed slightly as to the degree of that impairment.

52. Quite apart from her injuries and disabilities, I must also take into account her loss of amenities, not the least of which is the break-up of her marriage due to her inability to have sexual intercourse with her husband, a factor which was not present in all the cases cited by the parties.

53. In all the circumstances in this case, I assess the amount of damages for pain suffering and loss of amenities to the plaintiff at $300,000.00.

Pre-trial loss of earnings

54. There is agreement between the parties that the plaintiff’s earnings at the date of accident was $10,000 per month and that the notional monthly earnings of the plaintiff should also be $10,000.

55. The plaintiff was given 17 months of sick leave by government doctors up to 24 June 2003.

56. It was submitted by the defendant that her pre-trial loss of earnings should only be up to the expiry of the sick leave period.

57. I accept the plaintiff’s evidence that she had attempted to look for alternative employment related to the restaurant and catering business, the industry in which she was most familiar with, but without success because potential employers were reluctant to engage her as a waitress when they could see that she walked in an awkward manner, almost to the point of limping, being a disability arising from the accident.

58. I also accept her explanation as to why she had not registered with the Labour Department for job placement but had tried to look for jobs either through her former contacts or through advertisements in the newspaper.

59. It was not until February 2005 that she managed to secure employment as a cashier in a restaurant earning $4,998 per month.  She has managed to keep that job to date.  In accepting this evidence of the plaintiff, I note the desperation in which she seized upon this job when it was offered to her.  She was told that there was this job as cashier available at a salary of $4,998 but because of her lack of experience as a cashier, she was asked if she was prepared to give it a try and to learn how to be a cashier for two days at the job without pay.  She immediately took up the offer and agreed to the two days without pay in learning how to be a cashier.

60. It was also submitted by the defendant that on the evidence of Chan, it became apparent that the plaintiff would have had to look for alternative employment in any event, even if there was no accident to her.  That may well be so, but if there had been no accident, the alternative employment, which the plaintiff would have been looking for, would likely be one which would pay about the same, if not more, than what the plaintiff was earning at the date of the accident.  In this respect, it should be noted that the plaintiff was earning some $3,000 more as a captain in a Chinese restaurant before she joined the defendant as a food counter manager.  I therefore do not think this point assist the defendant in the slightest.

61. The loss of pre-trial earnings will be assessed as follows : $10,000 by 40 months for the pre-trial period and reduced by $2,850 being her earnings for the month of February 2005 and further reduced by her full earnings of $4,998 for March, April and May 2005.  The figure works out at $382,426.00.

62. Loss of MPF for the pre-trial loss of earnings comes to a flat 5% of the above figure which gives $19,121.30.

Loss of future earnings

63. For the multiplicand, I will adopt the figure of $10,000 less the present earnings of $4,998.

64. As for the multiplier, the plaintiff submits a multiplier of 9 and have cited cases to me showing that multipliers up to 10 have been adopted for plaintiffs aged 51 at trial.

65. On the other hand, the defendant has cited a number of cases showing that multipliers as low as 6 or 7 have been used for plaintiffs aged 51 at the time of trial.

66. I take the view that the range of multipliers for a plaintiff aged 51 at trial can properly be between 6 to 10.  Very much depends on the nature of the work, whether it is of a manual type, whether it is heavy work, and when a plaintiff would be expected to retire from such work or no longer be able to carry it out.

67. In the present case, the pre-accident work of the plaintiff had been a captain and/or food counter manager.  While this may not be the heaviest kind of manual work, it is undoubtedly very much manual in nature and at times it can be also heavy with long hours.  This is quite apparent from the evidence given by this plaintiff of the type of work and the hours she had to do in her pre-accident work with the defendant.

68. In all the circumstances of this case, I conclude that a multiplier of 8 would be reasonable to be adopted here.

69. The loss of future earnings would be assessed as ($10,000 - $4,998) x 12 x 8, which gives $480,192.00.

70. The loss of MPF relating to the future loss of earnings would be 5% of that figure which gives $24,009.60.

Loss of earnings capacity

71. $120,000 has been claimed by the plaintiff under this head.

72. The defendant is prepared to concede $30,000 under this head of claim.

73. In this case, it is clear that the plaintiff will suffer a distinct and real handicap in the labour market due to her injuries if she should lose her present employment for any reason.  That much can be seen by the fact that it took her well over a year to secure her present job as a cashier after her sick leave had expired due to her disability in walking properly.  Such handicap of the plaintiff is one which is readily and visibly apparent to any prospective employer if she should lose her present job.

74. In assessing a proper figure for the plaintiff’s loss of earnings capacity, I have also to assess the chances of the plaintiff losing her present employment.  In this respect, I take account the fact that she is a cashier in a restaurant.  The restaurant business in Hong Kong can be, and often is, very volatile.  It is almost a daily occurrence that restaurants open for business and then close down or change ownership in a short time.

75. Given that there is such a high risk of the plaintiff being handicapped in the labour market, a reasonable figure under this head of claim would be $60,000.00 which is the amount that I would assess.

Special damages

76. This has been agreed between the parties at $24,304.00 and will be allowed.

Future expenses

77. There was initially a claim for future expenses being future medical expenses advised by the plaintiff’s medical expert.  However, counsel for the plaintiff had abandoned this claim in final submission, quite properly, in my opinion.

Interests

78. Interests on general damages for PSLA will be at 2% p.a. from the date of the Writ.  This works out to be $6,000.00.

79. Interests on pre-trial loss of earnings and on special damages will be at 4% p.a. (being half judgment rate) from the date of the accident.  This works out to be $54,203.60.

Summary

81. From the sub-total amount will need be deducted the periodical payments received by the plaintiff and agreed between the parties at the figure of $131,416.30.  This is so because there has yet been no awards made at the ECC proceedings commenced by the plaintiff in the District Court because those proceedings have been held in abeyance since this common law claim by the plaintiff has come on for trial in such a short time from its commencement.

82. After deduction of the periodical payment received by the plaintiff, the final figure of $1,218,840.20 is arrived at.

Conclusions

83. There will be judgment to the plaintiff against the defendant for the sum of $1,218,840.20.

Costs

84. There will be a costs order nisi that the defendant pays the plaintiff her costs of this action to be taxed if not agreed.

85. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.