LOBO, HELENA GEORGE v. BHAGWANDAS K. KRIPALANI

1996, No. PI 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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COURT

1. The plaintiff in this case was born in India and is now nearly 50 years of age. She has been in Hong Kong, on and off, since 1992 and has been employed as a domestic assistant both in Hong Kong, since her arrival, and in India beforehand. She has been employed or was employed by the defendant from the second week of October of 1994. He is also Indian and lives at an address in North Point owned by his brother-in-law's company and has lived there since early 1994 with his wife and three children.

2. He is no longer represented by solicitors but had the advantage of the services of Mr Ashok, an experienced gentleman who speaks his native tongue and who has acted as his McKenzie friend during the course of this trial, and, in view of the circumstances, both in relation to the lack of legal representation and any linguistic difficulties, I have allowed Mr Ashok fairly free rein though, at times, I have needed to exercise some degree of control. I have allowed him to address the court and have free contact with Mrs Daswani, the interpreter in the Sindhi dialect.

3. When the defendant took up occupation of the flat, he told me that he arranged for a carpenter to fit some cupboards in the kitchen and fronting that cupboard were two glass doors on tracks, which doors slid or could be slid from side to side - one on the inner track and one on the outer track.

4. On a Saturday in early November 1994, a few weeks after she started work, the plaintiff told me of an incident relating to this particular cabinet. The glass door on the inner track, which covered, as she described, the left side of the cupboard, did not move. The reason for that was not clear. But the glass door on the outer track - that is, the one that was nearer to her, marginally - fell out as the daughter opened the door. It may be, at that stage, she had not started cleaning but, in any event, when the daughter was opening the door that she described the glass door as coming towards her and, of course, towards the daughter as well.

5. By "opening", I understood her to mean by sliding it open, i.e. from one side to the other. The daughter and the plaintiff, it appears, caught it, thereby preventing it from actually falling. The defendant was called and the three of them put it aside in a corner. No one suffered any injury on that occasion.

6. A few days later, on 11 November, the plaintiff was, in fact, cleaning the glass door in that kitchen cupboard. She enquired about it, by reason of the earlier incident, asking if it was "okay". She said that Mrs Kripalani said that her husband had fixed the cabinet. The plaintiff's enquiry was a reasonable one, given what had happened earlier.

7. However, on this occasion, the door fell out, smashed and, in so doing, some part of it cut deeply into her Achilles tendon. She was unable to go to hospital straight away. Mrs Kripalani said that she had to go out for lunch and Mr Kripalani was at work, and so the plaintiff had to wait, on her own, until the daughter returned together with a friend, later that day. The two of them then took her by taxi to hospital.

8. Those latter events appear to show some lack of concern on the part of Mrs Kripalani who, it appears, telephoned her husband when the incident happened. But it is not for me to decide any issue of concern but to confine myself to the question of whether there was a duty of care, a breach of that duty and negligence.

9. Similarly, the fact that she was dismissed on her return from her stay in hospital indicates somewhat questionable behaviour on the part of her employer but is not relevant to the question of negligence in this case and has no significance other than indicating, perhaps, a general lack of concern.

10. The defendant denies the first incident and denies that he was, in any way, concerned in such an event and that he had never known the glass door to fall out. In relation to the incident which caused the injury, he says she, the plaintiff, must have pulled the door out herself or done something in some careless way to cause it to fall out. The way in which this glass door fell out suggests that it was either badly sized for its retaining runners or frame or the runners or frame were damaged, inadequate or otherwise failing in their purpose.

11. I believe the plaintiff when she recounts the incident on the Saturday before. It is not a story, in my view, that she would have made up. She was not at risk herself on that occasion but the daughter was. The daughter has not given evidence. I am satisfied that the defendant did arrive to assist and was aware of what had happened. At some stage, he removed the glass -- the broken glass, in the sense that the broken pieces were cast away or disposed of, but the glass door, itself, was not replaced.

12. It was, in my view, natural for the plaintiff to ask Mrs Kripalani about the state of the door. She, clearly, had some apprehension when asked to clean it. Mrs Kripalani did say something reassuring but the accident, I am satisfied, happened as described by the plaintiff.

13. Mrs Kripalani herself did not give evidence. Mr Kripalani said that she was not well and was in hospital today and some documents produced clearly show that she has been in hospital for short periods, both in December of last year and January of this year. She was unable, therefore, to attend court, I am told. Although no medical certificate has been produced, I did decide that her statement which is amongst the papers in this case, could be admitted de bene esse and that I should look at its contents in relation to my assessment of its weight.

14. I accept the plaintiff's evidence on any matter in which she conflicts with the contents of Mrs Kripalani's statement.

15. The plaintiff was owed a duty of care by her employer and, in particular, he was obliged to provide a safe place of work. I am satisfied he failed to do so. Having been made aware that the glass door was not being retained properly, on the occasion when it fell out but was held in position and he and his daughter and the plaintiff assisted in moving it to a different position, he failed to ensure that, when it was replaced, it was done so with no risk of it falling out again.

16. Since it had to be moved and cleaned, it was important that that exercise could be done without risk of harm to anyone. And I am satisfied that there was negligence on his part in not ensuring that that could be done.

17. Since this accident, the door has not been replaced. The inner glass door remains in position on the inner track. Whether it is moveable or not, I do not know and it matters not.

18. Although the defence alleges failings on the part of the plaintiff in the form that it was her failure to ensure that it was safe for her to clean the cabinet in the way she did; that she failed to follow job instructions given by Mrs Kripalani; and she failed to carry out her work in a safe manner; and one or two other allegations such as an improper and dangerous method in cleaning the cabinet, there is no evidence in support of these allegations. I am satisfied that she was in no way negligent herself and she is entitled to succeed in full against the defendant on liability for his negligence and breach of duty of care.

19. I now turn to the question of damages for pain and suffering and loss of amenity. This was a painful injury from which, happily, she has substantially recovered. She was in hospital for eight days. The severed tendon was repaired and her lacerations stitched. She is left with some scarring which, fortunately, has paled and is not keloid, nor is it or nor does it appear to be abraded by any footwear.

20. There is some thickening, or possibly swelling, around the tendon area. Although Dr Ali did not notice this on his examination of her last year, he has seen her yesterday and accepts that this is the case. Similarly, although he saw no muscle-wasting in September 1997, he made no measurements. He was relying simply on his visual assessment. He now accepts, as Dr LAU had measured on the two examinations by him of the plaintiff, that there is one and a half to two centimetres of wasting in the left calf muscle. He accepts what Dr LAU suggests - that it is consistent with her complaint of moderate pain and discomfort. He also suggests it may simply be due to a degree of psychological aversion to normal use of the injured leg. However, having heard her, I am satisfied, as was Dr LAU, that she was in no way exaggerating the complaints that she made in relation to discomfort and any difficulties in her use of that leg on certain activities.

21. She is, I am sure, left with some minor disability in that she finds difficulty in climbing steps and getting up from a squatting position, and that demonstrates some weakness of the foot or ankle and some pain. In view of the nature of the injury and in the light of other such injuries, I am not at all surprised by these particular complaints. Over three years have elapsed since the injury was sustained and the position is now static.

22. Taking all features into account, in my view, the proper figure for damages for pain and suffering and loss of amenity is $150,000.

23. There is a claim under the head of Smith & Manchester Corporation. I accept, as I have indicated, that there is some continuing disability. There is a risk in the domestic labour market. I am satisfied that there is no real alternative employment for her and that the competition for such employment may become intense, although there are indications that it is fairly competitive even now.

24. I take the view that, if she were to lose her employment for any reason, she may find it difficult to obtain alternative employment and, therefore, she is at risk to some extent on the labour market and, in my view, the proper figure to reflect this is one of $50,000.

25. The special damages now total $5,238, a reduction on the original figure set out in the schedule, which reduction has been made by very helpful and fair calculations and considerations conducted by the plaintiff's legal advisers. I have looked at each of those items and the evidence in relation to them and I am satisfied that the total of those items at $5,238 is proved and those figures are reasonable.

26. Dealing with the loss of future earnings, I bear in mind that she is now nearly 50 years of age. There is a continuing loss of $140 per month. This may vary in any future contracts but, again, having made reference to the limited area of employment available to her and the factor of intense competition which may increase, she may find herself unwilling to want to change jobs, given the remaining, though limited, residual physical activity. And, therefore, the prospect of bridging that gap, of partial continuing loss, is not a good one.

27. Taking all those factors into consideration, looking at the continuing loss which runs at $1,680 per annum, I consider the proper multiplier is one of eight. Applying that to that figure, the total for future loss is $13,440.

28. Those four heads of damage total, on my calculation but subject to correction, $218,678. $26,426 have been received as a result of the ECO proceedings and credit must be given for that figure. The nett figure I calculate, subject to correction, is $192,252. Therefore, there will be judgment for the plaintiff for that sum with interest - at appropriate rates which are set out in the schedule together with costs to be taxed on a party and party basis.

CONRAD SEAGROATT

(Judge of the High Court)

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie Date: 13 February 1998