NG KUK CHAI v. BECKING INVESTMENT LTD

 DCPI 2655/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2655 OF 2008

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JUDGMENT

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Background

1.  Madam Ng Kuk Chai ("Ng")was employed by the Defendant as a cleaning worker, to work at ChungNamBuilding, 1 Lockhart Road in Wanchai ("Building"). On 27 December 2005, at about 3:30 pm, Ng was in the course of putting waxing liquid on the floor in the lift lobby on the 16th floor of the Building, when she slipped, lost her balance and fell. She sustained personal injuries as a result and these proceedings are instituted by her against the Defendant, for negligence, breach of implied terms of the contract of employment, and breach of statutory duty.

2.  Essentially, it is Ng's case at trial that the Defendant is in breach of its common law, statutory and /or contractual duties by failing to provide a safe system of work (including the giving of adequate instructions), and failing to provide Ng with anti-slippery shoes which fit her, and that such breach has caused Ng to sustain damage.

Issues

3.  The issues for determination at trial are:

(1)   Was the accident caused by the Defendant's breach of duty?

(2)   If yes, what are the damages recoverable by Ng?

How the accident occurred

4.  According to Ng, she was one of 3 cleaning workers responsible for the cleaning of the Building. The other 2 were Ying and King. They worked under the team leader, Yuen, who was the technician responsible for maintenance of the common facilities of the Building and also in charge of supervising the cleaners. The cleaners' usual hours of work were from 8:30 am to 5:30 pm. On public holidays, when tenants of the commercial Building would not be using the offices, the cleaners would wax the floors of the lift lobbies and clean the staircases. The job of waxing the floor of the main entrance lobby, the lift lobbies on the different floors and the floor inside the lifts was divided amongst Ng, Ying and. King. It was Ng's task to wax the 13th, 16th and 17th floors of the Building.

5.   It is not in dispute that the task involved using a solvent mixed with hot water to first remove the old wax from the floor before new wax is applied. The solvent would be poured onto the floor with hot water, to be applied and spread out onto the entire floor. The floor would then be cleaned with water, and 1 to 2 coats of waxing liquid would finally be applied to the floor when it is dry. The lift lobby on each floor is approximately 5 feet times 12 feet in area. According to the workers, it takes about 2 hours to complete the process of waxing one floor.

6.    On 27 December 2005 which was a public holiday, Ng claims that although she had reported to work at 8:30 am, she was prevented by Yuen from commencing her job of waxing the 13th floor until 10:45am. Ng claims that as she had to complete the waxing of the 3 floors by 5:30 pm, she was working in a rush. She completed the waxing of the 13th floor at 1 pm, and resumed work on the 16th floor after lunch. She claims in her Statement that because King was using the solvent and waxing liquid on another floor, it was only at 3 pm that she was able to do the waxing of the 16th floor. At approximately 3:30pm, as she was applying the solvent to the floor, she slipped and fell. Ng claims that her head hit the floor as she fell, and her left thigh was scalded. She claims that as she sat on the floor, her head ached and she felt dizzy. According to Ng, a large quantity of "yellowish brain fluid " flowed incessantly from her left nostril, and her vision was blurred. She was very frightened, and went to the Accident and Emergency Department of the Ruttonjee Hospital by taxi. From there, she was conveyed by ambulance to the Pamela Youde Nethersole Eastern Hospital ("Hospital") for treatment.

7.  Ng sustained head injuries as a result of the accident. She was also diagnosed as suffering from mild post-concussional syndrome. Ng further claims that she has visual impairments as a result of her injuries.

8.  The Defendant does not dispute the fact that Ng had fallen in the course of her carrying out the waxing work. The Defendant denies that the accident was caused by any negligence or breach of duty on its part. It is also disputed that Ng's injuries were as serious as she claims, or that they were all caused by the accident.

The medical evidence

9.  Looking first at the independent and objective medical evidence, the records of the Hospital show that Ng was admitted to the Department of Neurosurgery for head injury. She arrived in a fully conscious state. There was no wound over her scalp, and no neurological deficit was demonstrated. A CT scan of the brain showed no hemorrhage or skull fracture. The diagnosis was a minor head injury. She remained stable after treatment and was discharged on 31 December 2005.

10.  According to the report of the Department of Ophthalmology of the Hospital, Ng had visited the said department on 18 August 2006 with a complaint of diplopia after sustaining an injury in December 2005. An examination was conducted which showed exotropia (divergent squint). An operation of both eyes lateral rectus recession was performed on 8 November 2006. After such an operation, Ng's eyes were reported to be straight on distant vision, but with intermittent divergent squint on near vision. According to the report of Dr. Wong of the Department of Ophthalmology of the Hospital, Ng had still complained of monocular diplopia and binocular diplopia after the operation on 8 November 2006, but that the binocular diplopia was subsequently resolved during follow-up visits. According to Dr. Wong, Ng's best corrected visual acuity for both eyes at the time of her last visit to the Department was 0.8, which was normal. Dr. Wong considered that the diplopia complained of by Ng had been greatly resolved.

11.  According to the records of the Department of Psychiatry of the Hospital, Ng first attended the psychiatric outpatient clinic of the Hospital on 27 February 2007, complaining of low mood, insomnia, poor self-esteem, poor concentration, blurred vision, double vision, poor memory, headache and suicidal ideas over a period of three months. She was admitted from 27 February 2007 to 21 March 2007 for management of a moderate depressive episode. She was last assessed by the Department on 3 September 2007 to be "stable mentally". She was granted sick leave from 27 February 2007 to 2 April 2007.

12.  Counsel for Ng has provided a useful summary of the evidence of all the medical experts.

13.   A joint neurological assessment was conducted on Ng by Dr. Kan and Dr. Woo. Dr. Kan and Dr. Woo agree that Ng had a very mild head injury, which did not involve any loss of consciousness or post-traumatic amnesia. There was no evidence of any skull fracture or brain damage. Her residual headache, non-specific dizziness and subjectively-impaired memory are consistent with the diagnosis of a mild post-concussional syndrome, but there is no cognitive, vestibular or physical deficit. Dr. Kan and Dr. Woo are clear that Ng's claim that cerebrospinal fluid had leaked from her nostrils after the accident is unfounded. They explained that cerebrospinal fluid is clear and colourless (not yellowish, as Ng claims). In relation to Ng's complaints of visual impairment and diplopia, Dr. Kan found it difficult to accept that a traumatic neurological event was the cause. Dr. Woo agreed and pointed out that there was no underlying neurological disorder. Dr. Woo doubted the genuineness and integrity of Ng's complaints, referring to her suboptimal effort in the motor examination, the non-physiological nature of her visual complaints, and his strong suspicion that Ng's deficits were either feigned or grossly exaggerated for the purpose of the examination.

14.  The psychiatrists, Dr. Lai and Professor Lee, are also in substantial agreement in relation to their opinion that the degree of Ng's permanent psychiatric disability is in the mild range. When she was examined on 27 June 2008, she was found to be in the normal range of cognitive functioning. She was coherent and relevant in her speech, her mentation was fluid, she expressed herself well and did not have any lapses in attention and concentration. Dr. Lai and Prof. Lee consider Ng to be suffering from a mild to moderate depressive episode, and that her psychiatric condition is caused by the accident and its aftermath. They felt that Ng had been generally truthful in her psychiatric complaints, but noted "her over focus on negative happenings and distresses", and the fact that she was generally "overly health-conscious", such that "her complaints may be coloured by her attention seeking and mild hysterical tendencies". Dr. Lai and Prof. Lee further consider that Ng’s condition was complicated by various additional factors, such as her grudge towards her supervisor and a sense of unfairness at being discriminated, her social isolation and borderline adjustment since coming to Hong Kong, her long-standing social and marital stresses, her health consciousness and health anxiety, her mistaken notion that she had suffered a serious brain injury, a preoccupation with her visual problems, and her unhappiness by the suggestion that she was "cheating for sick leave and compensation".

15.  Dr. Lee, the ophthalmologist engaged by the Defendant, examined Ng on 15 January 2007 and found that her eyes were completely orthophoric in all directions of gaze, at distance or at near. He observed that Ng's complaint of binocular diplopia could only be caused by either high degrees of astigmatism or cataracts, neither of which was present in Ng, and considered that her complaint of double vision was doubtful.

16.  Dr. Cheung, the ophthalmologist engaged by Ng, examined her over 18 months later, on 30 October 2008. He considered that it is unlikely that the exotropia was a direct result of Ng's minor head injury, and was probably the result of decompensation of pre-existing exophoria. Dr. Cheung was of the opinion that Ng may have asymptomatic exophoria before the accident, and the anxiety and stress after the head injury had resulted in decompensation of the exophoria.

17.  Dr. Lee maintained that Ng's complaint of binocular diplopia is a functional complaint unsubstantiated by a reasonable biologic etiology. He stressed that the fact that Ng was recorded to have best corrected vision even once (when he examined her in January 2007) is sufficient evidence that she does not have amblyopia. He doubted the possibility of Ng's vision in each eye dropping significantly within a year to the level reported by Dr. Cheung, and pointed out that a manifest vision is a subjective response. He considered that for a patient who had suffered a minor head injury and who had perfect visual recovery 2 years later, any development of eye problems some time later can only be due to aging decompensation.

Ng’s evidence

18.  Having considered the independent and expert medical evidence, I now turn to the question of whether Ng's account of the accident, its cause and the effect on her is credible. On this issue, and in reviewing the medical experts' reports, I have reminded myself that the question of Ng's overall credibility and the genuineness or otherwise of her claims of injury are essentially matters to be determined by the Court, obviously taking into account all the evidence, including the opinion of the experts who had examined her at different stages.

19.  No evidence was adduced by the Defendant to challenge Ng's account of how the accident occurred, but on nearly all other aspects of the case, Ng's evidence is at variance with the evidence of the other witnesses. King claims that she was waxing the lobby of the 8th floor in the afternoon, and at around 2:30 pm to 3 pm, she went to look for Ng to retrieve the waxing liquid. She found Ng on the 16th floor, standing on one side of the lift lobby, using a floor mop to support herself. According to King, parts of Ng's clothes were wet, and the floor was wet. Ng told her that she had slipped and fallen, that her head had hit the ground and that "brain liquid" was flowing out. King said that she immediately went to the management office on the ground floor to seek help and to notify Yuen. According to King, Yuen and Ying went to the scene of the accident.

20.  According to the evidence of Yuen, he was informed by staff at the management office between 2:30 pm to 3 pm that Ng had slipped on the 16th floor and had been injured. He claims that he went to the 16th floor, where he saw that Ng was in the toilet cleaning herself, and was alert. There was a bucket of water on the floor, and wet solvent on the floor and on Ng. According to Yuen, Ying and a caretaker was already at the scene.

21.  According to Ying, she was informed shortly after lunch that Ng had slipped on the 16th floor and was unwell. She was asked by the staff to go and check on Ng. Ying 's evidence is that when she arrived on the 16th floor, Ng was in the toilet on the side of the lift lobby, and was using water to clean the wax on her hair. According to Ying, Ng informed her that she would go to the changing room on the 22nd floor to wash herself. Ying asked if she should accompany Ng, but Ng said it was not necessary. At about 3 pm, Ng herself arrived at the main lobby, and Yuen asked Ying to ascertain whether Ng would like Ying to accompany her to the hospital. According to Ying, Ng said that she could go to the hospital on her own by taxi.

22.  Ng denies seeing anyone on the 16th floor after the accident. She claims that after the accident, her concern was to put cotton wool into her nostril to prevent the cerebrospinal fluid from escaping, and she went to the shower room on the 22nd floor to do this. She then went to the shower room to pour water onto her leg which had been scalded. She claims that the other witnesses had lied about seeing her on the 16th floor, or washing her hair. Although she originally claimed that she only saw Ying when she went down to the main lobby on the ground floor, she came to accept in cross-examination that Ying had seen her in the shower room on the 22nd floor.

23.  In her Statement, Ng claims that she had asked Yuen for the wax removal solvent and the waxing fluid at 8:30am to commence work, but Yuen refused and insisted that Ng should only do her waxing after King had finished. She repeatedly claimed in her evidence that she had been "detained" for hours, and that it was only at 10:45 am that she could start work on the 13th floor and, in the afternoon, she was only able to start work on the 16th floor at 3 pm because King was using the solvent and the waxing fluid.  Ng claims that as a result, she was in a hurry, as she was afraid that she would not be able to complete waxing the 16th and 17th floors by 5:30 pm.

24.  Both King and Ying claim that they and Ng were each given a bottle of wax removal solvent. There was only one bottle of wax fluid because, according to Ying, they were only required to wax the floor 2 to 3 times a year, and according to King, it was simply unnecessary for each to have a bottle of waxing fluid. The wax removal solvent and the waxing fluid were kept in the storeroom on the 22nd floor. Ying explained that in practice, she put some waxing fluid in a small bottle for her own use, and no one had ever prevented her or anyone else from so doing. According to King, the fact that she had to share the waxing fluid with Ng did not create any problem in work, or any delay in completion of the work. She explained that it would only require 3 minutes or so to apply the waxing fluid, and there would be an interval of 30 minutes for the first coat of wax to be dried before the second coat is required to be applied. In the interim, the waxing fluid can be used by someone else. According to King, she was in the process of fetching the waxing fluid from Ng after the first coat of wax had dried on the 8th floor, when she discovered Ng on the 16th floor.

25.  There was some suggestion that on the day in question, the one bottle of waxing fluid was running low and that it was not possible to polish all the surfaces required. Yuen claims that he had informed Ng in the morning that it would not be necessary to do any waxing in the afternoon. In my Judgment, nothing turns on this, as it cannot be disputed that Ng was in fact waxing the 16th floor in the afternoon when she slipped.

26.  Ng claims that she was not given any appropriate anti-slippery shoes to do her work. She claims that when she started work in 1998, she was given a used pair of Wellington boots, which was black in color, with black soles. She claims that the boots had been worn out by use, and that when she used them in her work, it was "like skating on ice". Ng claims that she had complained to Ying about this. She also claims that the Wellington boots were 3 or 4 sizes too big for her. She had to implement her own anti-slip device, by placing under her left boot a piece of wire mesh used for scrubbing pots at home, and walking on the wire mesh. Ng claims that on the day in question, she did not use the wire mesh in her haste, and hence had slipped.

27.  According to Ying, Ng had started work about 4 months earlier than Ying did but they had received their Wellington boots at the same time from the Defendant. Ying testified that their boots were identical, with thick soles. According to Ying, she had no problem with the Wellington boots, which fitted her and were not slippery. She denies that Ng had ever complained to her about the size or the slippery nature of her footwear. Ying further emphatically denies Ng's allegation that the Defendant had made attempts to prevent Ying to give evidence to assist Ng.

28.  Apart from Ng's bare assertion, I can find no other evidence that Ng had been discriminated against by Yuen and her fellow workers, as she claims.  According to King, it would take only 2 to 3 minutes to apply the waxing fluid, and it would be another 30 minutes before the waxing fluid would the used again. I see no logic in Ng's assertion that Yuen had "prevented" her from using the liquid until King had finished waxing the floor, and in fact, Ng had commenced waxing her floors before King had completed hers. I reject Ng's claim that she had been "detained". Nor is there evidence that Ng had asked to buy a new pair of Wellington boots or to seek reimbursement for other fitting footwear, and had been refused. On such available evidence as there is, I reject Ng's claim that she had been discriminated against at work, such that it had in any way led to the accident.

29.  Irrespective of how close they were at work with Ng, I see no reason for Yuen, Ying and King to conspire to give false evidence as to the circumstances after Ng had met with the accident, particularly when Ng does not dispute that she was conscious, and could move up and down the floors on her own, and went to the hospital on her own. If Ng's evidence is to be believed, Ying had even lied about visiting her at the Hospital. There may have been language barriers between Ng and her co-workers, but even on Ng's evidence (as apparent from Ng's letter dated 2 July 2009), Ying was the colleague who seemed to have enjoyed a closer relationship with Ng, as Ying was able to speak putonghua. I see no reason why Ying would have to lie about having visited Ng at the hospital, and consider that it is more probable than not that she did.

30.  From all the evidence, I consider that Ng is overly obsessed with her condition, and has formed a distorted view of the entire accident and its aftermath, to the extent of exaggerating her evidence and her present claims. She has unreasonably rejected all the medical experts' opinion that the yellowish liquid rushing from her nostril was not cerebrospinal fluid. She has refused to accept the diagnoses from the different doctors that she had only suffered from a mild head injury, in the absence of any objective evidence of skull fracture or brain damage. This was the finding of the doctors at the Hospital, who were prepared to discharge her on 31 December 2005. It is not a question of her disputing the doctors' opinion on the cause of her injuries, but a matter of her rejecting the objective findings such as the absence of fracture and the absence of cerebrospinal fluid discharge. Not happy with the diagnoses and findings of the doctors at the Hospital, she complained to the Defendant that the Hospital was not able to identify her injury, and her employer went to the extent of arranging for her to be transferred to a private hospital, the Hong Kong Sanatorium & Hospital, for further examination by a private neurosurgeon. She was observed for 3 more days at the Hong Kong Sanatorium, and discharged with the same diagnosis. She complains that Dr. Woo had distorted the truth when he expressed the opinion in his report that there were serious doubts on the genuineness and integrity of Ng's complaints. In all, Ng's obsession with her own perception of events gives me serious reservations about the reliability of her evidence.

31.  In contrast, I accept Ying as an honest and forthright witness. She was direct in her evidence. Although her Statement was only proffered at a late stage, I can appreciate her reluctance (as a layman) to come to court, particularly in view of her relationship with Ng and her employment by the Defendant. Nevertheless, I accept that she has given impartial evidence about their work and her dealings with Ng. I accept the evidence of Ying and King that they had all been given Wellington boots, and that the pair of boots shown on page 112 (11) of the trial Bundle is more likely than not to be the boots given to and worn by Ng. Those boots were found in the changing room on the 22nd floor, where Ng had left hers. I have reservations as to whether any cleaning worker would have paid particular attention to, or closely examined, the design of the pattern on the soles of the boots worn at work, and do not regard any inconsistency in Ying's evidence as to the colour or pattern of the soles to cast doubt on her evidence.

32.  I reject Ng's evidence that the boots which she had been wearing since 1998 were 3 or 4 sizes too big for her and were slippery, or that wearing them at her work was like "skating on ice". If they had not fit, I doubt she would have been able to tolerate wearing them at work for 8 years before the accident, without complaint or remiss. Even if they were not entirely new when they were allocated to her, according to Ying, the cleaners would only need to use the Wellington boots when they waxed the floor and this took place 2 to 3 times a year, when there was a stretch of a few days of public holidays. Ng claims that she had to wear the boots outdoors to clean the drains on the podium, and also to clean the drains on the first floor on rainy days. Even if this were true, I do not believe that the Wellington boots could be so worn-out as to reduce their anti-slip function. Moreover, if Ng's claims of constant use of the boots outdoors, including the climbing up and down of ladders is true, her allegation that the boots were 3 or 4 sizes too big is even more incredible.

33.  According to King, when her Wellington boots did not fit, she purchased another pair and had no problem in obtaining reimbursement from the Defendant in respect of the costs involved. Ng's answer to this was that King received favored treatment. I find this difficult to believe in view of the overall unreliability of Ng's evidence, and her tendency to reject anything that did not suit her purpose.

Was the accident caused by the Defendant's breach of duty?

34.   Turning now to the issues for determination, was the accident caused by the Defendant's breach of duty in any way? Ng claims that the Defendant had failed to provide her with a safe system of work, failed to give her adequate instructions and supervision in relation to her work, and failed to provide her with anti-slippery shoes to wear in the course of her work.

35.  I will deal with the anti-slippery shoes first, since this has largely been covered under the preceding paragraphs. On the evidence, I accept that Ng had been given boots which were reasonably adequate to guard against slippages. Wellington boots have been conventionally accepted to be adequate anti-slippery footwear when used in the usual course, in a reasonable manner on wet or slippery surfaces. I do not believe that the boots given to Ng did not fit her, but in any event, there is no evidence that Ng had complained to her employer or supervisor that the boots in question did not fit her, or that the Defendant's system prevented her from obtaining a pair of boots which fit.

36.  The lift lobbies which had to be waxed were small in area, 5' x 12'. On the evidence, it is a simple process of putting solvent and hot water on the floor, mopping and cleaning the floor, and then applying coats of waxing liquid on the floor. According to King, it was a matter of doing this from one side of the small lobby to the other side. Ng accepts that the job was simple. When she was first put on to the job, she was shown how to do this and she had been doing it for 8 years without difficulty. She accepts that the job did not require supervision. She devised her own method of stepping on a wire mesh under one boot in the process, according to her, merely as an anti-slip device and not to assist in the cleaning process.

37.  Naturally, the work involved putting water and wax on the plastic floor which would make the floor slippery. Inevitably, there would be some risks whenever wet and slippery floors are involved. However, an employer's duty to his employees is the care which an ordinary prudent employer would take in all circumstances. Under Cap. 509, the obligation on the employer is to ensure, so far as reasonably practicable, the safety and health at work of its employees. I agree with Counsel for the Defendant that an employer cannot guarantee that an employee will not be injured, and an employer is not to be blamed for any incident that happens (Vinnyey v. Star Paper Mills [1965] 1 All ER 175; Lazarus v. Firestone Tyre and Rubber Co. Ltd. (1963) Times 2). The decision of Recorder Edward Chan, SC in Ng Kong v. Golden Caterers Ltd. HCPI 206/2004, 3 February 2005, also makes it clear that the employer is not an insurer of its employees' personal injury, and that the law does not require perfection, so long as such care reasonably expected from a careful employer has been taken.

38.  In my Judgment, in view of the fact that the lift lobby to be waxed is small in area and that the process involved is simple, it was not reasonably foreseeable that the task would pose a danger to an employee such as Ng. Nor was it reasonably necessary for Ng to be supervised in the task. She accepted that she had been given instructions in relation to the work, and I do not consider it to be necessary for an employer to give further detailed or precise instructions as to how the plastic floor should be waxed and cleaned, or elaborate instructions on how the solvents or waxing solution should be applied for such a simple task. Any employee engaged in work which involves washing the floor would appreciate that there are inherent risks, and that care should be taken to avoid slippage. It follows that an employee engaged in a task of polishing or waxing the floor would likewise appreciate that precaution is called for. Having supplied the employees with anti-slippery shoes in the form of the Wellington boots, and given general instructions on the procedure, I do not consider that it is reasonable to expect the Defendant to take further action to guarantee the safety of its employees in the small area involved.  Adoption of the precautions and measures suggested by Counsel for Ng, even if practicable, would be ideal, but the law cannot unreasonably require employers to take all measures that the benefit of hindsight confers on those who dwell in a perfect world.

39.  I find nothing defective or inadequate in the Defendant's system regarding the provision of wax removal liquid and the waxing liquid. Even if there was only one bottle of waxing liquid to be shared by King and Ng, it was not the cause of Ng's slippage. I reject her claim that Yuen had in any way prevented her from commencing her waxing task until King had completed hers. Ng maintained that she had been "detained" for hours, which led to time pressure on her and which caused her to rush about her job. I consider that this is an illustration of Ng's exaggeration and obsession with the belief that she was being discriminated against.

40.  In conclusion, I consider on the evidence that the accident was caused by Ng's own momentary lack of care, in her desire to complete her work quickly.

What are the damages recoverable by Ng?

41.  In the event that I am wrong on the question of liability, I will very briefly deal with the issue of the damages to which Ng may be entitled if liability is established against the Defendant.

Pain, Suffering and Loss of Amenities

42.  Ng was 56 years old at the time of the accident, and is 60 years old now. I accept from the evidence that she suffered from a very mild head injury with post-concussional syndrome but without any indication for regular neurological treatment; a mild depressive episode; and, at least for a period of time up to the operation in November 2006, some form of diplopia. Counsel for the Defendant submits that, as evidenced from the records, Ng had a pre-existing back injury. Although I tend to agree with Counsel for Ng that the evidence in relation to the severity of Ng’s back problem changes with Ng’s different purposes at different times, which casts doubt on Ng’s overall credibility, I have to agree with Counsel for Ng that there is insufficient medical evidence for the Court in this case to give any discount in respect of such pre-existing condition on the basis of the principles set out in Chan Kam Hoi v. Dragages et Travaux Publics PI No. 815 of 1995 7 March 1997 and [1998] 2 HKLRD 958.

43.  Apart from the psychiatric problems for which Dr. Lai and Professor Lee consider that Ng should receive further treatment, it appears that Ng has largely recovered from the effects of her injury. Any further or continuing visual problems appear from the experts' reports to be not directly related to the accident, but have more to do with aging decompensation.  Despite Ng’s claims made to Dr. Woo and Dr. Kan in June 2008 that because of her visual problems, she could not judge the traffic, had to follow pedestrians in front of her when crossing the road, and had difficulty on the stairs and on uneven ground; and in spite of Dr. Cheung’s opinion in December 2008 that Ng’s judgment of distance and 3-dimentional perception was defective, the surveillance video on Ng in January and February 2008 showed Ng walking, boarding a public light bus, and crossing the road on her own independently and without sign of difficulty.

44.  I consider that a reasonable amount to be awarded under this head is $250,000. 

Pre trial loss of earnings & MPF

45.  Dr. Lai and Prof. Lee considered that Ng's recovery is incomplete, and that sick leave should end 3 months after the commencement of the recommended psychological treatment. Due to financial difficulties, Ng has not received the recommended psychological counselling. On the basis of the experts' reports, I will allow her claim of loss of earnings up to date. According to the calculations submitted on behalf of Ng, her loss of earnings and MPF benefits on the basis of the agreed monthly salary of $7691.67 is $363,431.40 ($7,691.67 x 45 x 1.05).

Future Loss of Earnings

46.  Dr. Woo considers that Ng should be able to resume her pre-injury job as a cleaner. Dr. Kan does not dispute that Ng would be able to return to work, but considers that her psychological impairment may result in a reduced working capacity of 20%. Dr. Lai and Prof. Lee agree that Ng is mentally capable of returning to her pre-accident employment on expiry of her leave after the recommended psychological treatment. However, they consider that there may be a mild effect on Ng's earning capacity, as she may need to take a short period of rest when she feels headache, dizziness or depression. Dr. Cheung considers that as a result of the diplopia secondary to the accident, Ng would only be able to perform jobs that do not require good vision.

47.  I consider that an appropriate award, bearing in mind Ng's age, would be $156,660.15. This is on the basis that Ng would be able, after the further period of counselling for 3 months, to find a job earning $5,000 a month. I have also allowed her an additional month to look for employment.

Loss of Earning Capacity

48.  I allow her $60,000 under this head, bearing in mind that on the medical evidence, her choice of employment will be more restricted, with the need to take sick leave from time to time due to her residual problems. 

Special Damages

49.  There are agreed at $20,280.

Future Medical expenses

50.  I allow the sum of $22,500 in respect of the 15 sessions of further psychological treatment recommended by the experts, at the cost of $1,500 per session.

51.  The award for damages includes :

(1) PSLA	$250,000
(2) Pre-trial loss of earnings & MPF	$363,431.40
(3) Future loss of earnings & MPF	$156,660.15
(4) Loss of earning capacity	$ 60,000
(5) Special damages	$ 20,280
(6) Future medical expenses	$ 22,500
Less :  EEC award	$372,077.40
Total :	$500,794.15

52.  There will also be interest on the award of PSLA at the rate of 2% per annual from the date of the writ to the date of judgment, and on the award of total special damages at half the judgment rate from the date of the accident to the date of judgment.

Conclusion

53.  In view of my findings on liability, I dismiss Ng’s claims in the action, and will make an order nisi that the costs of the action be paid by Ng to the Defendant, with certificate for counsel, to be taxed if not agreed. Ng's own costs are to be taxed in accordance with the Legal Aid Regulations.