SHRESTHA DENIKA v. PIZZAEXPRESS (HONG KONG) LTD

DCPI 1661/2021

[2023] HKDC 1542

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1661 OF 2021

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J U D G M E N T

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1.  This is an assessment of damages in an action for damages for personal injuries suffered by the Plaintiff on 9 August 2019 in an accident at work (the “Accident”).

2.  Interlocutory judgment on liability was entered by consent on 13 January 2022 against the Defendant.

3.  The Plaintiff seeks damages in the sum of HK$2,041,359 plus interest, which figure gives credit for the employee’s compensation in the sum of HK$400,000 that she has already received from the Defendant.  On the other hand, the Defendant’s case is that having already received HK$400,000 from the Defendant, the Plaintiff is not entitled to claim further damages, hence the Plaintiff’s present claim should be dismissed.

4.  The parties’ positions on quantum can be summarised as follows:

	Head of Damages	Plaintiff (HK$)	Defendant (HK$)
(1)	Pain, suffering and loss of amenities (“PSLA”)	400,000.00	200,000.00
(2)	Pre-trial loss of earnings and mandatory provident fund contribution (“MPF”)	419,806.00	185,900.90
(3)	Future loss of earnings and MPF	1,503,553.00	0
(4)	Loss of earning capacity	100,000.00	0
(5)	Special damages	18,000.00	10,000.00
	Less employees’ compensation		400,000.00
	Total (before interest)	2,041,359	0

A.   BACKGROUND

5.  The Plaintiff was born on 19 June 1995 and was 24 years old at the time of the Accident.  The Plaintiff received education up to university level in Nepal.  She is fluent in Nepali and English, and can speak a little Cantonese.  She is now 28 years old.

6.  On or about 10 October 2018, the Plaintiff started her employment with the Defendant as a captain in a restaurant (the “Restaurant”). The Plaintiff’s main duties included preparing drinks at the bar, putting ice cubes into containers, slicing lemons, brewing coffee, and also taking orders, serving food and clearing and preparing tables as a waitress.  The Plaintiff worked 12 hours per day and 5 days per week, and about 22 days a month.  She also needed to do overtime work.  The Plaintiff’s average salary from the commencement of her employment with the Defendant preceding the Accident was HK$15,395.52.

7.  The Plaintiff is married, and has a son.  She gave birth to her son on 12 March 2020.  She currently lives with her husband and son, and also her mother-in-law.

8.  At all material times, the Plaintiff’s husband has worked as a security guard.  He continues to work as such.  He sometimes works during the day time, and sometimes during the night time, though at the moment he works during the day.

9.  At all material times, the Plaintiff’s mother-in-law has worked as a cleaner.

A1.  The Accident

10.  On 9 August 2019, the Plaintiff was working at the Defendant’s Restaurant as a captain.  At around 11:48 a.m., when the Plaintiff was walking from the bar to the toilet, the Plaintiff slipped on the floor as there was water on the floor outside the bar.  To prevent herself from falling over, the Plaintiff tried to hold onto the bar counter but in vain, and she fell on her left side and landed on her left hand.  Her left hand was then injured.  I refer to this incident as the “Accident”.

11.  The Plaintiff’s co-workers reported the Accident to the manager at the Restaurant, who called an ambulance and took the Plaintiff to the Accident and Emergency Department of Ruttonjee & Tang Shiu Kin Hospitals for medical treatment.

A2.  The Plaintiff’s injuries and treatment

12.  On 9 August 2019, the Plaintiff was admitted to the Accident and Emergency Department of Ruttonjee & Tang Shiu Kin Hospitals.  She was later admitted to the Department of Orthopaedics & Traumatology of Pamela Youde Nethersole Eastern Hospital on the same day.  On examination, the Plaintiff’s left wrist was swollen and deformed.  Active movement was limited by pain.  X-ray of the Plaintiff’s left wrist showed that there was extra-articular fracture of left distal radius.  Close reduction was performed for fractured left wrist, and short arm slab was given. Post-reduction X-ray showed satisfactory alignment and the Plaintiff was discharged the following day on 10 August 2019.

13.  The Plaintiff’s fractured left wrist was treated conservatively, and when she attended the Department of Orthopaedics & Traumatology of Pamela Youde Nethersole Eastern Hospital again, a short arm complete cast was applied on 15 August 2019.  Her wrist was kept immobilised till six weeks post-injury.  The short arm cast was taken off on 19 September 2019, and X-ray on 31 October 2019 showed good union of her left wrist fracture.

14.  The Department of Orthopaedics & Traumatology of Pamela Youde Nethersole Eastern Hospital referred the Plaintiff to the Physiotherapy Department of Tang Shiu Kin Hospital, and the Plaintiff began physiotherapy at Tang Shiu Kin Hospital on 17 October 2019.  The Plaintiff complained about pain over left wrist during movement with a pain score of 7 out of the 10-point numerical rating scale (“NRS”).  With physical examination, it was found that the Plaintiff had limited range of motion of left wrist, namely 45 degrees flexion and 25 degrees extension.  There was weakness in grip strength (7 kgf compared with 22 kgf of unaffected side) and pinch strength (2 kgf compared with 3.2 kgf of unaffected side).

15.  The Plaintiff completed six sessions of hand function training from 17 October 2019 to 5 November 2019, with slight improvement in range of motion of left wrist to 50 degrees flexion and 25 degrees extension.  She then started work rehabilitation on 4 December 2019. Work capacity evaluation showed the Plaintiff had limited manual handling capacity and tolerance, and she barely tolerated lifting 5 lbs five times, and single hand carry 2 lbs for 35m five times.  In view of the Plaintiff’s condition, a course of work hardening was provided, and the Plaintiff showed improvement in range of motion to 50 degrees flexion and 45 degrees extension. Grip strength was similar at 6 kgf.  She reported improved tolerance for manual handling, with left wrist pain NRS3-4 after 1 hour of light manual handing.

16.  The Plaintiff was discharged from occupational therapy on 20 January 2020 due to pregnancy.  The Plaintiff indicated that she was keen to return to work after giving birth, and it was suggested that she obtain a new referral postpartum for work hardening.

17.  On 31 January 2020, the Plaintiff had physiotherapy at Ruttonjee Hospital.  The Plaintiff complained of pain, stiffness, weakness and decreased power and functional activities in her left wrist.  There was morning stiffness.  The Plaintiff complained that the pain limited her left elbow / wrist / fingers movement.  She complained of difficulty in wringing a towel, shampooing, bathing, putting on and taking off clothing and cooking.  She said she avoided cleaning the floor and lifting weight.  The Plaintiff’s left wrist had no deformity and no swelling.  On the other hand, there was mild tenderness and increased temperature in her left wrist.  The Plaintiff’s left elbow and wrist muscle power was decreased by pain. Her hand grip power was 8 kg for her left hand and 17 kg for her right hand.  The Plaintiff claimed to have had 35% improvement.  She requested that her treatment be stopped as her due date was expected to be 3 March 2020.

18.  As mentioned above, the Plaintiff gave birth to a boy on 12 March 2020.

19.  The Plaintiff had physiotherapy at Canadian Asian Neck & Back Institute (“CANBI”) from 28 April 2020 to 13 June 2020.  On 28 April 2020, the Plaintiff’s handgrip assessment was 10 kg for her right hand and 1 kg for her left hand.  By 13 June 2020, the Plaintiff claimed that she had improved 35% since the time of injury.  There was slightly reduced pain in her left wrist.  Handgrip was 10 kg for her right hand and 2 kg for her left hand.  The Plaintiff had poor compliance in attending scheduled treatment sessions, and after 13 June 2020, she defaulted on subsequent treatment sessions and could not be reached by telephone despite repeated attempts.

20.  The Plaintiff was examined by Dr David Cheng (“Dr Cheng”), the orthopaedic expert instructed by the Defendant, on 11 August 2020.  Dr Cheng found that the Plaintiff’s left wrist had no deformity and no swelling.  He also found that there was mild tenderness over dorsum of left wrist, full range of wrist movement, no muscle wasting and slight weakness in handgrip on manual testing.  At the same time, the Plaintiff complained of pain over the left wrist, especially after taking care of her baby, such as breast-feeding, bathing etc.  She said there was some weakness and she had difficulty in opening milk bottles.  However, the Plaintiff could manage her daily activities without much problem.

21.  The Department of Orthopaedics & Traumatology of Pamela Youde Nethersole Eastern Hospital granted the Plaintiff sick leave from 9 August 2019 to 23 July 2020.  The Wellness Clinic & Pain Centre granted the Plaintiff sick leave from 4 April 2020 to 15 October 2020.

22.  By a letter dated 20 October 2020, the Defendant followed up with the Plaintiff.  The Defendant stated that after receiving the Plaintiff’s sick leave certificate for the period until 15 October 2020, the Defendant had not received further sick leave certificates from the Plaintiff, nor had the Plaintiff reported for duty after her sick leave period.  The Defendant stated that it had tried to contact the Plaintiff several times but had failed to reach her.

23.  In the absence of a response from the Plaintiff, the Defendant terminated the Plaintiff’s employment by a letter dated 23 November 2020.

24.  The Plaintiff confirmed at trial that she had received the aforementioned letters dated 20 October 2020 and 23 November 2020 at around the dates of those letters, but had not replied to the Defendant.

A3.  The Plaintiff’s work after the Accident

25.  In the Plaintiff’s Witness Statement dated 6 June 2022, she explained that after the Accident, she might need more time before she could partially perform her role as captain in a restaurant, in other words her pre-Accident job.

26.  The Plaintiff also explained that as at the date of her Witness Statement, she worked as a receptionist at Cricket Club and Pacific Club on a part-time basis.  Salary statements show that from July 2021 to July 2022, the Plaintiff worked as a receptionist at Pacific Club as a night receptionist, and according to the Plaintiff that was on a part-time basis. The Plaintiff also explained that she worked there full-time from September 2022 to March 2023, sometimes taking day shifts and sometimes taking night shifts.  She worked around 9.5 hours a day for around 22 days a month.  The Plaintiff’s monthly salary when working full-time at the Pacific Club was around HK$17,000, plus free meals.

27.  In around the second week of March 2023, the Plaintiff worked in a café on a part-time basis.  From 4 April 2023 onwards, the Plaintiff moved to her current job, and she works in a restaurant as a waitress supervisor.  The scope of her work includes front of house roles, for example taking orders and serving dishes.

A4.  Expert evidence

28.  On 22 January 2021, the Plaintiff was examined by Dr Wong Chin-hong, the orthopaedic expert instructed by the Plaintiff, and Dr Cheng, who as mentioned above was the orthopaedic expert instructed by the Defendant.

29.  The two experts found that the Plaintiff’s left wrist had no deformity and no swelling.  They also found that there was mild tenderness over dorsum of left wrist, full range of wrist movement, no muscle wasting, and slight weakness in handgrip on manual testing.

30.  During the examination, the Plaintiff complained of pain over her left wrist, especially after taking her baby, such as breast-feeding, bathing etc.  She said there was some weakness and she had difficulty in opening milk bottles, and there was greater pain when she had working for more than an hour.  However, she was able to manage her daily activities without much problem.

31.  The two experts agreed on the following:

31.1.  Diagnosis and causation: the Accident caused fracture of lower end of radius at left wrist.

31.2.  Treatment: a conservative approach had been adopted followed by physiotherapy and occupational therapy, and the treatment was standard and appropriate.

31.3.  Present condition: the left wrist fracture had healed in satisfactory position. There was full range of wrist and hand movement.  There was no muscle wasting. Muscle power was good.

31.4.  Prognosis: prognosis was good.  The Plaintiff had reached maximum medical improvement for her injury, and there was no need for any further treatment.

32.  The experts disagreed on the following:

32.1.  Return to work: Dr Cheng opined that the effect of the Plaintiff’s injury is mild, and the Plaintiff should be able to resume her pre-injury occupation of a waitress.  On the other hand, Dr Wong opined that the Plaintiff’s symptoms and signs would not resolve completely. She would need to modify her work routine should she desire to return to work as a waitress to avoid repeating exertion (e.g. lifting objects weighing more than 1 kg) and to allow frequent rest (e.g. at one hour intervals).  She would also be suited to jobs that do not demand repeated exertion and movement of her left wrist such as telephone operator, receptionist or petty office assistant.

32.2.  Whole person impairment: Dr Cheng assessed whole person impairment at 1%.  Dr Wong assessed whole person impairment at 3%.

32.3.  Sick leave: Dr Cheng opined that sick leave up to 6 months until the end of February 2020 was reasonable.  Dr Wong opined that sick leave from 9 August 2019 to 19 March 2020, 4 April 2020 to 1 May 2020 and 24 July 2020 to 17 September 2020 was reasonable and acceptable.

A5.  EC proceedings

33.  The Plaintiff has received employees’ compensation from the Defendant in the sum of HK$400,000.

B.   PSLA

34.  In the Revised Statement of Damages dated 17 June 2022, the Plaintiff claims HK$400,000 by way of PSLA.  Mr Ho contends on behalf of the Defendant that HK$200,000 would be an appropriate award for this head of damages.

35.  I note that both experts agree that the Plaintiff’s left wrist fracture had healed in satisfactory position.  In my view, the Plaintiff has recovered well, as can be seen from the fact that she has now returned to her pre-Accident line of work.

36.  I agree with Mr Ho that a sum of HK$200,000 is appropriate under this head in light of the authorities.  I agree with Mr Ho that the present situation is most comparable to that in Rai Chandra Kala v La Creperie 8 Ltd [2023] 2 HKLRD 1477, §§8-9, 50, where Judge Andrew Li awarded PSLA in the sum of HK$200,000 to a plaintiff who slipped and fell and had acute traumatic closed fracture of left wrist.  I also note that in Yeung Cheung Chun v Wing Shing Caisson & Foundation Limited & Or, HCPI 808/2012, 30 January 2015, §§24-25, 30, the plaintiff also suffered a fracture of distal radius of left wrist but there was residual mild weakness in the left arm and slight muscle wasting resulting in mild permanent adverse effect in his daily activities, and DHCJ Burrell awarded PSLA in the amount of HK$200,000.

37.  I award the Plaintiff HK$200,000 for PSLA.

C.   PRE-TRIAL LOSS OF EARNINGS

38.  The Plaintiff claims that her pre-accident monthly earnings was HK$15,738, which is what she earnt during July 2019. However, the Plaintiff’s average salary from the commencement of her employment with the Defendant preceding the Accident was HK$15,395.52.  I agree with Mr Ho that it is reasonable to adopt the average.

39.  In considering the appropriate amount of pre-trial loss of earnings, I begin with the question of what the appropriate period of sick leave was.

40.  As mentioned above, Dr Cheng opined that sick leave up to 6 months until the end of February 2020 was reasonable, whereas Dr Wong’s view was that sick leave from 9 August 2019 to 19 March 2020, 4 April 2020 to 1 May 2020 and 24 July 2020 to 17 September 2020 was reasonable and acceptable.  According to Dr Wong, “All sick leaves granted by the attending doctors when Ms Shrestha was being treated and followed up were reasonable and acceptable.”

41.  The date of 17 September 2020 referred to by Dr Wong is the last date of sick leave that was referred to in the Form 7 dated 30 September 2020 issued by the Labour Department, which document was made available to the parties’ experts and referred to at §15 of the Joint Medical Report.  The experts do not appear to have been provided with sick leave information after that Form 7, and they do not seem to have been provided with the sick leave certificate from the Wellness Clinic & Pain Centre that granted the Plaintiff sick leave until 15 October 2020.

42.  Mr Ho indicated in his Opening Submissions that the Defendant is prepared to accept that the Plaintiff’s sick leave should end on 23 July 2020, i.e. 11.5 months.  23 July 2020 is the date that the Department of Orthopaedics & Traumatology of Pamela Youde Nethersole Eastern Hospital granted sick leave until.

43.  Thus, the disputed period of sick leave for present purposes is that granted by the Wellness Clinic & Pain Centre for the period from 24 July 2020 until 15 October 2020.

44.  The Plaintiff readily admitted under cross-examination that she had been concerned about the risk of contracting COVID in 2020 and 2021 as she had a newborn son, with no vaccinations being available for newborns at the time, and in my view, that is a realistic and honest answer.  However, in my view this does not translate into meaning that I should in any way reject the period of sick leave granted by the Wellness Clinic & Pain Centre until 15 October 2020 or to take the view that there was anything inappropriate about such sick leave.  Further, I accept the Plaintiff’s submission that she went to work part-time even during COVID, and her decision-making was not based only on COVID risk.

45.  Mr Ho also suggested that another reason why the Plaintiff did not return to work earlier was because she needed to look after her child whilst her husband and mother-in-law went to work, but for the period during which the Plaintiff was granted sick leave, I accept the Plaintiff’s case that she was not intentionally staying at home to look after her child.  I do not see this to be a reason to impugn the sick leave that was granted to the Plaintiff until 15 October 2020.

46.  Although Dr Wong referred to 17 September 2020 as the end date of reasonable and acceptable sick leave, as explained above the two experts were not provided with details of the sick leave granted by the Wellness Clinic & Pain Centre from 18 September 2020 to 15 October 2020.  Taking into account that Dr Wong had based his view on the views on the Plaintiff’s attending doctors as to what was reasonable and acceptable, I consider that it is open to me to take the view that all sick leave granted to the Plaintiff by doctors, including that until 15 October 2020, was reasonable.

47.  Thus, I consider that the appropriate period of sick leave in the present case was 14.25 months until 15 October 2020, rather than 11.5 months as contended for by the Defendant.

48.  However, I am of the view that the Plaintiff was able to return to work in her pre-accident job upon expiry of the sick leave that ended on 15 October 2020.  I do not accept the Plaintiff’s contention that after her sick leave, she could not return to her pre-accident job and could only take up lighter jobs such as that of a part-time receptionist earning around HK$10,000 per month.

49.  In this regard, I note that the Defendant had written to the Plaintiff on 20 October 2020 to follow up with her after the latest sick leave certificate that was granted to her, but the Plaintiff did not reply.  The Plaintiff did not, for example, reply to the Defendant’s letter to suggest that she had any difficulty in returning to work or to request any modifications to her work.

50.  Although the Plaintiff did not in fact return to work until much later, I do not consider that this should fall on the Defendant’s doorstep.  I agree with Mr Ho that the Plaintiff’s physical condition was not likely to be as poor as was suggested in some medical reports, otherwise she would have returned to physiotherapy rather than default on physiotherapy.  I also consider that Dr Wong was overly pessimistic in expressing his view that the Plaintiff would need to modify her work routine should she desire to return to work as a waitress to avoid repeating exertion and to allow frequent rest.  As mentioned above, the Plaintiff had not suggested that to the Defendant in October 2020, and further, she is now back in her pre-accident line of work without there being any suggestion that she has had to modify her work or ask for frequent rest.

51.  Accordingly, I assess the Plaintiff’s pre-trial loss of earnings and MPF as follows:

HK$15,395.52 x 14.25 months x 1.05

= HK$230,355.50.

D.  POST-TRIAL LOSS OF EARNINGS

52.  Given my view that the Plaintiff was able to return to work after her sick leave ended on 15 October 2020, I do not consider that the Plaintiff is entitled to any future loss of earnings and MPF.

E.  LOSS OF EARNING CAPACITY

53.  The purpose of this head of claim is to compensate a plaintiff where there is a substantial risk that during his working life, he will lose his employment and suffer financial loss because of his disadvantage in the labour market due to his disability.  See Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, 311I-312G.

54.  In the present case, I do not consider there is any substantial or real risk that the Plaintiff would lose her job as a result of any residual ability.  Indeed, she has been able to return to her pre-Accident line of work and she has not suggested that she has encountered any particular difficulty.

F.  SPECIAL DAMAGES

55.  The Plaintiff claims medical expenses of HK$15,000 and travelling expenses in the sum of HK$3,000.

56.  Insofar as medical expenses are concerned, I note that the Plaintiff mostly attended public hospitals and consulted Dr David Yip four times.  As Mr Ho has rightly pointed out, the public hospital expenses should be modest, and there is no evidence of the amount of medical expenses paid to Dr Yip.  The Defendant proposes to allow HK$7,000 as medical expenses in the absence of invoices, which I find reasonable.

57.  Travelling expenses are agreed.

58.  Thus, I award the sum of HK$10,000 as special damages.

G.  SUMMARY OF AWARD

59.  In summary, I award the Plaintiff damages as follows:

PSLA	HK$200,000
Pre-trial loss of earnings and MPF	HK$230,355.50
Special damages	HK$10,000
Total (before taking into account employees’ compensation)	HK$440,355.50
Less employees’ compensation	HK$400,000
Total (before interest)	HK$40,355.50

60.  The Plaintiff claims interest on general damages from the date of the writ to the date of judgment, and interest on special damages from the date of the Accident to the date of judgment.  The Defendant’s stance is that the Plaintiff has received her pre-trial loss of earnings and special damages in full a long time ago, and that the Plaintiff should only be entitled to pre-judgment interest on the net sum at the conventional interest rate for PSLA, namely 2% per annum from the date of the Writ, 4 June 2021.  I agree with Mr Ho’s submissions, and I so award.

61.  I also make a costs order nisi that the Defendant pay the costs of this action from 14 January 2022[1] onwards to the Plaintiff on a party and party basis, to be taxed if not agreed.  Unless either party applies to vary the same by Summons, the costs order nisi shall be made absolute 14 days from today.

62.  Finally, I thank Mr Ho for his assistance.