NG LAI PING CAROL v. TUNG WAH GROUP OF HOSPITALS

HCPI 374/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 374 OF 2006

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

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

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

J U D G M E N T

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

1. On 26 June 2003, the plaintiff fell whilst at work.  She was a childcare worker, aged 30 at the time, employed by the defendant.  She had been so employed for about 10 years and had been at the particular school where the accident occurred since September 2002.

2. One of her tasks each morning was, with two other teachers, to escort and supervise 10-15 children into the toilet at the school where they would use the toilet and wash their hands before starting lessons.  The children were aged 2-6 years old.

3. In June 2003, Hong Kong was being affected by the SARS virus.  At the entrance to the toilet was a special mat which was designed to absorb disinfectant.  At either end of the mat was a smaller thin rug made from cotton or similar fabric.  Each morning before the children and teachers arrived, the blue mat had disinfectant fluid poured onto and into it. 

4. When entering the toilet, the teachers and children stepped onto the blue mat to dampen the soles of their shoes with disinfectant and then onto the smaller dry rug placed at the far end.

5. Once all the children and teachers had entered the toilet, the plaintiff noticed that one of the children was not wearing a mask.  She decided to leave the toilet in order to get a mask for the child.  When she got near the exit, she slipped and fell on to her buttocks and received injuries and later suffered loss for which she now seeks damages. 

6. Liability and quantum of damages are both in issue.

LIABILITY ISSUES

7. It is agreed by all that the floor of the toilet was dry before the teachers and children entered.  The issue concerns its condition when the plaintiff fell.

8. The plaintiff says it was wet and slippery and that that caused her to fall.  The plaintiff’s case is that the blue mat must have had too much fluid poured into it and that such fluid had spilt onto the surrounding floor as a result of it being used by the teachers and children.  The mat was filled with fluid by other staff before 8:00 a.m. each day.  It was not clear exactly how much to pour on each day.  It squelched when stood upon.  There was excessive fluid in it on the morning in question.  The problem of excessive fluid had occurred on previous occasions and had been raised informally at meetings between teachers and supervisors.

9. The plaintiff also submits that small children did not always use the small rug properly.  There was a risk that the children walked onto the floor with their shoes still wet.  It was difficult to ensure that all 15 (approximately) very young children carried out the exercise correctly.  Moreover, it is said that the small dry rug, measuring about 1 ft. by 2 ft. was too small for its purpose.

10. The plaintiff also gave evidence that a cleaner came a little after the accident to mop and dry the floor.

11. The defendant however says the floor was dry at all times.  They rely on the evidence of Ms Young Mei Wan, the school’s supervisor.  She gave evidence that the plaintiff had hurt her ankles on a skiing holiday in Korea about four months earlier and that the plaintiff had said at the time that her ankle had “given way”.  She also said that the two other teachers who were with the plaintiff at the time in the toilet, but who did not see her actually fall, both told her that the floor was dry at the time of the accident.  Both teachers denied this in evidence. 

12. Ms Young also said that she was unaware of any “problem” relating to excessive fluid being poured onto the mat.  She said that the staff who were responsible for pouring on the fluid had been instructed how to do it and that there was a sufficient stock of small drying rugs which were replaced when needed throughout the day.  She said that temporary ‘Caution wet floor’ signs were distributed in the toilet and were on view.

13. The written accident report was signed by the plaintiff a week later.  It states that the floor was wet and slippery.  However, Mr Young stated that she had prepared a first draft of this report which stated that the floor was dry.  She had done this on the basis of what she had been told.  However, the plaintiff had refused to sign it because she had not agreed to its contents.  Ms Young therefore redrafted it on the basis of what the plaintiff said to her a week after the accident.  Unfortunately, she destroyed the first draft.

14. The first issue on liability is therefore : did she fall because the floor was wet or for some other reason related to a weakness in her own legs.  If the floor was wet, the consequential issue is, had the defendant in any event taken reasonable measures to ensure the safety of its employee?

(1)     Was the floor wet?

15. I am satisfied on the whole of the evidence that the plaintiff has proved that the floor was very probably wet and that she slipped as a result.  My reasons are as follows :

(a)      I accept the evidence of the plaintiff and her two colleagues that problems with excessive fluid being poured onto the mat had arisen before.  The ‘squelching’ noise made when it was stepped on is consistent with it containing too much fluid on the morning in question.

(b)     The arrival of up to 15 small children and three teachers all at once was likely to cause the floor to become wet either as a result of the mat spilling out its excess fluid or as a result of the children failing to dry their shoes properly or both.

(c)     I reject the evidence that a temporary ‘Caution wet floor’ sign was placed at the door where she fell.  This is too good to be true.  Neither the plaintiff nor her colleagues noticed any such signs.

(d)     Neither of the plaintiff’s witnesses stated, either in their witness statements or in evidence, that they had seen that the floor was wet when the plaintiff fell.  They did not notice one way or the other.  Their immediate concern, not surprisingly, was to help the plaintiff to her feet, take her outside so that she would sit down, take care of her and call for an ambulance.  Had they been asked at the time “Did you see that the floor was wet?”  They would have honestly answered “No”.  This I believe accounts for the fact that Ms Young’s evidence was that they had said the floor was dry.  The conflict is probably explained by a misunderstanding between “I did not see that it was wet” and “I did see that it was dry.”

(e)      The plaintiff’s knowledge of the condition of the floor at the moment of her fall was the same as that of her colleagues.  She did not notice the wetness.  That is why she fell.

(f)      The manner and nature of her fall is entirely consistent with a “banana skin” type fall rather than a loss of balance due to weak ankle or knee joints.  She landed on her buttock, she ended up horizontal with her legs pointing towards the door.  If her ankle had suddenly “given way” I think it very unlikely that she would have fallen in the manner described.  There was no medical evidence of her ankle or knee having twisted on the day in question.  There is no reference in any report following the accident such as “my ankle turned over and I collapsed” or “my knee gave way and I fell”.

(g)     The evidence that the floor was dry about one hour later is consistent with it having been mopped and dried after the accident as contended by the plaintiff.

(2)     Had the defendant, in any event, taken sufficient steps to ensure a safe place of work for the plaintiff?

16. The defendant points to the quality and size of the blue mat, the cleaning system that was in place, the existence of temporary warning signs, the floor tiles were ‘non-slip’ and that various work safety posters were displayed at the school.

17. However, all the circumstances must be examined.  This accident occurred because of a particularly unusual feature, namely the SARS attack in Hong Kong.  There was confusion and uncertainty as to how to deal with it.  When young children are involved the difficulties are even greater.

18. Bearing in mind this background, I am satisfied that there had indeed been a problem as to how properly to use the blue mat.  Excessive fluid had been used.  The small rug was also inadequate for 15 children.  Moreover, children of that age would not understand the importance of the safety procedures and would probably fail to comply with them on every occasion.  In such circumstances, also, 15 children is too many to all enter the toilet at one time.

19. In these unusual circumstances I conclude that the defendant had not provided a safe place of work for the plaintiff.  There was a real and obvious danger of the floor becoming slippery, and therefore dangerous, within a very short period of time.  Finally, I observe that the very reason the plaintiff was leaving the toilet was connected to the SARS issue, namely, she was going to collect a mask for one of the children.

(3)     Contributory negligence

20. It is suggested that the plaintiff’s own negligence contributed to her injuries.  It is said she should have paid attention to the condition of floor, walked more slowly, taken smaller steps etc.  These allegations are vague, unsustained and unrealistic.  Conversely, the plaintiff correctly points out that she was wearing sensible shoes, she was not running and she had no reason to be aware of the slippery condition of the floor.  I find the defendant to be 100% liable.

QUANTUM

21. There are a number of heads of damage, none of which were agreed.

(i)      Pain suffering and loss of amenity

22. She has suffered back pain, in varying degrees ever since the accident.  The medical evidence came, primarily, from the written reports of Dr Danny Tsoi (for the plaintiff) and Dr Chan Siu Yeung (for the defendant).  The plaintiff’s family doctor, Dr Angela Ng, had diagnosed a slipped invertebral disc at L4/5.  However later examination revealed narrowing of the L4/5 disc space which triggered off subsequent degenerative changes.  She has attended 30 sessions of physiotherapy and 33 sessions of occupational therapy.  Both doctors thought the plaintiff had magnified her symptoms, possibly due to psychosomatic factors.  In court, I regarded her as genuine.  She did not make any exaggerated claims.  I am sure she has wanted to get back to her pre-accident condition but as yet has not done so.  She engaged in various sporting activities before the accident but has not done so since.

23. She was secretly videoed over three days in 2005.  The most damning feature of that surveillance was one occasion when she picked up and carried her 20-month-old daughter for a period of about one minute.  Otherwise I found that the video did nothing to damage her case.

24. She was off work for over 28 months.  Dr Tsoi said 24 months would have been acceptable.  Dr Chan said 6 months.  I think Dr Chan’s assessment, although proper in some cases, did not reflect the facts in this case and the actual pain which the plaintiff was suffering.  Dr Chan assessed the impairment of whole person at 1%; Dr Tsoi’s assessment was 7%.

25. A total of 13 authorities have been cited to me on the issue of PSLA.  They provide peripheral assistance by way of comparisons.  Damages for back injuries are notoriously difficult.  The frequency and severity of the pain varies enormously.  In this case the defendant suggests a band of $100,000 to $250,000; the plaintiff $250,000 to $300,000.

26. I accept it is not a particularly bad case but I award $225,000.  The “loss of amenity” aspect being particularly significant, she having been such an enthusiastic sportslady.

(ii)     Past loss of earnings

27. She was actually off work for over 28 months.  In other words, she was given sick leave certificates by the Government hospital for this period.  I think she was reasonably off work for 24 months, that being the reasonable period assessed by Dr Tsoi.

28. Before embarking on the arithmetic three more sub-issues require resolution.

(a)     Increments

29. In the 10 years before the accident she had received annual increments on the Master Pay Scale.  Her last increment was awarded in September 2003, two months after the accident based on her annual report for the period before her accident.  While she was on sick leave she received no increments.  I am satisfied that she would have done so had she not been injured.

(b)     Overtime

30. During the 10 months she had worked at the Child Care Centre she had earned an average of $352 a month overtime.

(c)     Meal allowance

31. The plaintiff claims $950 a month on the basis that, when at work she could pay $220 a month and eat the school lunches whereas if she did not do so, she would have to pay $45 a day for lunch.  Thus when off sick she was unable to have subsidised lunches.  I do not regard this as a lost benefit for which she should be compensated.

32. The computation of past loss of earnings is therefore as follows :

(1)	for 24 months’ sick leave :
(a)	26 June – 31 August 2003
	($19,195 + $352) x 2.16 months =	$42,222
(b)	1 September – 31 December 2003
	($20,150 + $352) x 4 months      =	$82,008
(c)	1 January – 31 August 2004
	($19,533 + $352) x 8 months      =	$159,080
(d)	1 September – 31 December 2004
	$20,510 + $352) x 4 months       =	$83,448
(e)	1 January – 30 June 2005
	($19,860 + $352) x 6 months      =	$121,272
		$488,030

(The variations in the monthly salaries are accounted for by (i) increments and (ii) the civil service wage cuts in 2004 and 2005.)

To be deducted from this figure are the following :

(a)	maternity leave income	$47,794
(b)	a short period of attempted work	$2,731
(c)	advanced payment by defendant	$432,315
		$482,840
	The net loss during sick leave is therefore :
	$488,030 – $482,840 = $5,190
(2)	Since end of sick leave, 21 months have passed :
	She would have been on a monthly salary of :
	$20,865 + $352 = $21,217
	She has in fact earned $18,915, a shortfall of :
	$2,302 x 21 months = $48,342
	Her total past loss is therefore $53,532.

(iii)    MPF

33. The above figure should be enhanced by 5% = $56,209.

(iv)    Loss of earning capacity

34. The plaintiff is concerned that she will be dismissed from her job after this litigation has concluded because she is not able yet to fulfil her duties and is being allowed to perform light duties only.  She also feels that her supervisor, Ms Young, is prejudiced against her and that she will get poor annual reports from her which are undeserved.

35. In her present condition, it is submitted, her earning capacity in the open market would be as a clerical worker earning about $10,000 a month.

36. To some extent her concerns about her future with these defendants have been partially allayed.  Senior staff from the defendant have informed the court, in a most considerate and helpful way, that there are opportunities for the plaintiff to be transferred to an alternative institution where she could continue her work at the same level of pay.  I believe that the plaintiff wants to continue her work and wants to get better and improve.  I have been informed that her application to transfer will be considered favourably and that, given present circumstances, there are no reasons or grounds to warrant her dismissal.

37. Notwithstanding this helpful gesture the defendant concedes that some awards for loss of earning capacity should be made.  The plaintiff seeks 2 years’ pay, the defendant proposed 6 months’ pay.

38. Given her age, her job skills and her ability to get re-employed if she had to, I think 12 months is appropriate :

($18,915 + $352) x 12 = $231,204.

(v)     Loss of annual leave

39. The plaintiff claims for a period of leave that she took after she returned to work because she felt unable to perform a full day.  This was well after the end of the two years’ sick leave.  It cannot be claimed.

(vi)    Partial loss of housekeeping capacity

40. This is a valid head of damages.  The plaintiff, because of her impairment of whole person assessment of between 1% and 7%, cannot carry out heavy lifting at home.  She claims the cost of help at $50 an hour for two hours a day for 15 years, which is $547,500.  I regard this claim as excessive.  Only herself and her husband live at home.  Her daughter lives with her mother.  Both she and her husband work.

41. Adopting a broad brush approach to this highly uncertain head of damage, I think two hours a day for five years is fair.  I award $182,500.

(vii)   Special damages

42. The plaintiff’s revised statement of damages gives a detailed list of medical expenses plus $10,000 for tonic foods plus $500 for walking aids.  There are no invoices in support of the tonic foods.  I allow $8,000 for medical and travelling expenses; $5,000 for tonic foods and $500 for walking aids (less $3,720 which has already been paid).

43. Special damage of $9,780 is allowed.

SUMMARY

45. It is agreed that a net figure of $40,000 for her ECC award should be deducted.  The final damages therefore are $664,693.

INTEREST

46. Two per cent per annum interest on $225,000 for PSLA from 9 May 2005 plus half the judgment rate on $53,532 + $2,677 + $9,780 from 26 June 2003.

47. There will be judgment accordingly together with a costs order nisi in the plaintiff’s favour to be taxed if not agreed in accordance with Legal Aid Regulations.