NG LAI FAN FANNY v. THE HONG KONG GOLF CLUB

HCPI 511/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 511 OF 2005

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J U D G M E N T

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Introduction:

1.  Ms Ng was employed by the Golf Club in its restaurant at the Fan Ling golf course.  She says that on 4 June 2002, at about 2 p.m. she slipped and fell while descending a staircase, carrying a large bag of laundry, thereby suffering a back injury.  She now brings proceedings for personal injury damages.

2.  There is a dispute between the witnesses as to how the accident occurred.  There is no dispute that Ms Ng fell and suffered an injury.

Ms Ng’s version of the accident:

3.  The case for Ms Ng is that in the course of her employment with the Golf Club, Ms Ng was required to take several large bags of used tablecloths to the laundry.  She, and another worker, Ms Flora Lau, worked together.  It was necessary for them to remove the bags of used linen from the first-floor restaurant area to the ground floor.  In order to do this the bags were lifted from a trolley on which they were held, open, to receive used linen.  From there they were taken to an external staircase, then down the staircase, where they were placed on a hand cart to be transported to the laundry.

4.  Ms Ng says that she was required to lift the heavy bags, one at a time, with both hands in front of her, and to then walk down the staircase carrying the bag.  She says that she slipped and fell on a damaged, greasy, wet, staircase surface, being unable to see where she was placing her feet, and being unbalanced by the weight of the laundry bag.

The Golf Club’s version of the accident:

5.  Ms Lau says that she had left Ms Ng at the top of the staircase to move the bags to the bottom of the staircase, while she went to get the hand cart from a store room adjacent to the base of the stairs.  She said that she returned to find Ms Ng leaning against one of the bags of linen at the bottom of the stairs, complaining of a back injury.  Ms Lau says that Ms Ng was in such pain that she was unable to describe what had happened.  An ambulance was called and Ms Ng was taken to hospital.

6.  Ms Lau says that they did not carry the loaded bags down the stairs.  Ms Lau’s version of the accident was that they first used the trolley on which the empty bags hung in the kitchen, in order to move the bags to the back door of the kitchen.  She said they then removed the bags from the trolley, tied the top of the bag with a string that was available for the purpose, and carried the bags out to the upper landing at the top of the staircase.  She said that they then simply rolled the bags down the staircase to the ground level.  She says they did that in order to avoid having to lift up the bags for transport purposes.

7.  Ms Lau was supported in her version of the method used to transport the bags down the stairs by Mr Tang Sun-fat, the food and beverage supervisor for the Golf Club.  Mr Tang has worked at the Golf Club for 26 years, beginning as a waiter, now holding a senior position, with only the Golf Club Manager more senior to him.

Discussion:

8.  Mr Cheung for Ms Ng, criticised Mr Tang contending that there was a conflict in his first witness statement, made on 12 December 2005, and his second witness statement, made on 28 February 2007, in that no reference was made in the first witness statement to the method used to move the bags down the stairs.  While it is right that in the first witness statement Mr Tang did not specifically referred to the method used, his first statement was not in conflict with his second statement which went to answer Ms Ng’s description of accident, which was not prepared until 23 January 2006.  There was no particular need for Mr Tang to specifically address the method used, as that was dealt with in Ms Lau’s witness statement, prepared at the same time as that of Mr Tang.

9.  It is right too that no risk assessment of the method of moving the bags from the top to the bottom of the stairs had been carried out under the provisions of the Occupational Safety and Health Regulations.  That is not at all surprising having regard to the mundane nature of the task that had to be performed.  Whilst there may have been a technical breach of the regulations I am satisfied that it did not contribute to the accident.

10.  In her first witness statement Ms Lau did not refer to the precise number of bags that were required to be moved, referring instead to “bag(s)”.  In her later, supplementary statement, she said there were four bags.  That was not an inconsistency, but a clarification required in the light of the fact that Ms Ng asserted to there being 7-8 bags.  The actual number of bags was essentially irrelevant.  It did not matter whether there were one or 50 bags, the issue was whether Ms Ng was carrying a bag as she descended the stairs. 

11.  The number of bags were however relevant to the issue as to whether Ms Ng had exaggerated.  Mr Tang said, and I accept, that there were about 30 tables in the dining room.  Even allowing for each table to be used once at breakfast time, and twice at lunch, requiring a total of 90 tablecloths, having seen photographs of the available bags on the trolley, I am satisfied that there would not be more than four bags.  On the day in question there was no special event and no reason why there would have been heavy use of the restaurant prior to 2 p.m.

12.  Mr Chan suggested that the supplementary statements filed by the Golf Club witnesses showed remarkable “improved memory”.  I am satisfied that they did not, but simply addressed the detail of issues, of which those advising the Golf Club had become aware, following the filing of Ms Ng’s witness statement.

13.  Nothing turns on the fact that there was a conflict as to whether or not tablecloths were moved from one bag to another prior to being tied.  It would be sensible, but not necessary for such an action to occur.

14.  I listened carefully to the witnesses and the cross examination and I have had regard to the matters that have been addressed to me as to credibility.  In weighing the evidence I had due regard to the fact that both of the Golf Club witnesses still work for the Golf Club.

15.  I prefer the evidence of the Golf Club witnesses, and am satisfied that the method of work adopted was to roll the bags down the stairs.  In asserting that she was carrying a laundry bag down the stairs when she fell Ms Ng has exaggerated her case.

Liability:

16.  Mr Lim, for the Golf Club, argued that should that finding be made it was inevitable that Ms Ng’s case must fail.  He submitted that if it was found Ms Ng was not carrying a laundry bag there would be no factual basis upon which the court could consider liability for breach of the employer’s duty of care.

17.  Whether or not Ms Ng was carrying a laundry bag it was still the obligation of the Golf Club to provide employees with safe means of ingress and egress from the place of work.  A failure to cover damaged tiles on the staircase with a mat, or to remove or replace damaged tiles on the staircase, and generally a failure to provide a safe place of work was appropriately pleaded.  Ms Ng, in her witness statement, said that some of the tiles near the edge of the stairs were broken because of the lack of the repair and maintenance.

18.  Ms Lau, in her first witness statement, did not refer to the condition of the tiles.  Mr Tang said the staircase was made up of about 10 steps. In fact there were two flights of stairs, each with about 15 steps.  He said the staircase was covered with non-slippery tiles, and was swept in clinging to three times a day.  Although he said the staircase did not “appear to be in a damaged or broken condition”, it is plain from photographs produced, taken subsequent to the accident, that the lower flight of stairs had been re-tiled.  Repairs are plainly visible on the upper staircase, at broken edges of tiles.  In his second witness statement Mr Tang conceded to repair and maintenance work always being carried out around the club, and acknowledged that repair work had been done on the upper staircase.

19.  There is no doubt that Ms Ng slipped and fell on the staircase.  Having regard to the whole of the evidence I am satisfied that it is more likely than not that she slipped and fell because of a damaged or broken tile.

20.  It follows that the Golf Club have failed to maintain a safe means of ingress and egress from the kitchen and must be liable for the consequences of the accident suffered by Ms Ng.

21.  In reaching this conclusion I have had due regard to Waghorn v George Wimpey & Co [1969] 1 WLR 1969, cited by Mr Lim, where the judge found that the accident had occurred in a separate and distinct manner from that which had been pleaded so as to disentitle the plaintiff to succeed.  The present case is quite different.  The carrying of a laundry bag would have been an aggravating factor, having regard to my finding as to the condition of the stairs.  Whether Ms Ng was carrying a laundry bag or not, the case pleaded was slipping and falling on stairs.  The absence of a laundry bag cannot be described as a “radical departure from the pleaded case”.

Contributory negligence:

22.  It is clear from Ms Ng’s evidence that she was fully aware of the state of the staircase before descending.  But it does not follow from that knowledge that she was careless in the course of descending the stairs.  An inadvertent slip on a dangerous staircase does not necessarily require a finding of contributory negligence: see Ryan v Manbre Sugars Ltd (1970) Sol J 492.

23.  There is nothing in the evidence to suggest that Ms Ng did not take proper care of herself, and that, because of a lack of care she slipped on a broken tile.  This is not a case of a worker who, recognizing a dangerous system of work, goes ahead with a disregard for his own safety.  I do not find there to be any contributory negligence.

The injury:

24.  Following the accident Ms Ng was taken to an Accident and Emergency Department.  She complained of pain in her mid-and low back regions.  She suffered tenderness over the thoracic and low back regions, but with no neurological deficits.  X-rays of her spine revealed a scoliosis of the thoracic spine, but with no fracture or dislocation noted.  She was admitted, and treated conservatively by physiotherapy, bed rest and analgesics, being discharged from hospital on 12 June 2002.

25.  After release from hospital Ms Ng’s condition did not particularly improve.  Persistent back pain extended into multiple areas including the head, neck, shoulders legs and feet.  Magnetic resonance imaging revealed unremarkable results, with no nerve root compression.  The pain continued and ultimately Ms Ng was referred to a clinical psychologist and psychiatrist and was diagnosed as having suffered from depression consequent upon the accident.

26.  Ms Ng has been examined by two orthopaedic surgeons, Dr Arthur Chiang, and Dr Lam Kwong-chin.  Both doctors are agreed that the pre-existing scoliosis was not a mild curve, but sufficient to mean that a longer time would be taken to reach satisfactory healing.  Both doctors are of the view that there are minimal physical signs for Ms Ng’s complaints of pain and that she has suffered a soft tissue injury, there being no significant injury-related pathology such as disk prolapse.

27.  In addition to seeing two orthopaedic surgeons Ms Ng has been assessed by two psychiatrists, Dr Wong Chun-kwong, on the instruction of the plaintiff, and Dr Chung See-yuen, on the instruction of the defendant.  Both are satisfied that Ms Ng has suffered a depressive disorder, the difference between the two doctors being as to the extent of that disorder.  Dr Wong is of the view that Ms Ng has suffered a major depressive disorder, whereas Dr Chung is of the view that she suffers adjustment disorder with mixed anxiety and depressed mood.  The difference between the two psychiatrists is as to the severity of the depressive condition.

28.  In assessing the extent of the depressive condition I am obliged to take into account my finding that Ms Ng has exaggerated the nature of the accident.  I have read the reports carefully and considered the approaches taken by the two doctors in the light of the assistance I have had from seeing and hearing Ms Ng give evidence.  The fact of exaggeration is entirely consistent with a person acting a sick role as described by Dr Chung. 

29.  On the balance of probabilities I am satisfied that Ms Ng has suffered a soft tissue injury following a fall at work and thereafter she has exaggerated her mental problems.  While she suffers anxiety and depressed mood I am not satisfied that she has experienced a major depressive disorder.  I am satisfied that the psychiatric condition from which she presently suffers has arisen directly from the injury she has suffered at work.

30.  It is likely in my view that the resolution of the litigation may to some extent relieve Ms Ng’s psychiatric symptoms, but she will require some further psychiatric treatment in order to properly rehabilitate herself.  This will not be required to be lengthy, but it is probably best undertaken in the private sector where it can be undertaken promptly and efficiently.  Ms Ng cannot be criticised for having stayed within government medical care to date, as to do so greatly reduced the expense that she was involved in and kept her with doctors with whom she was familiar.

31.  Weighing all of the factors, both physical and mental, I am of the view that the injury suffered by Ms Ng falls within the moderate category of injuries.

PSLA:

32.  While there is no clinical pathology which justifies the extent of the pain Ms Ng claims to have suffered, I accept that she has been in some pain and discomfort for a considerable period of time.  The unfortunate psychiatric overlay has aggravated this pain.

33.  I bear in mind the extent of awards in cases where the courts have found injuries to be in the lower end of the serious injury category, such as Collins v The Star Ferry Co HCPI 491/2000 and Yu Heung Yuk v Ho Man & Ors HCPI 57/98 and the other cases cited by Mr Cheung.  The injury is one which exceeds a minor injury, and I bear in mind the authorities cited by Mr Lim on awards for such cases. 

34.  Weighing all of these matters I am satisfied that an appropriate award in this respect is the sum of $250,000.

Pre-trial loss of earnings:

35.  Ms Ng’s salary, but for the accident, established by evidence from the Golf Club, would have been $12,923 per month, having regard to basic salary plus overtime plus bonus.  In addition she was entitled to free meals.  I reject the proposition that value of the meals should be assessed at the actual cost to the Golf Club.  The value of the meal is the cost saved by the beneficiary of the benefit which I fix at $30 per meal, or $780 per month.  Consequently the pre-accident monthly earning loss is $13,712.

36.  Ms Ng was granted sick leave by doctors from the Hospital Authority over for periods which, although not continuous virtually covered the whole of the 57.5 months prior to trial.  Having regard to the psychiatric overlay, which I am satisfied arose from the accident, I am satisfied that she should be awarded full loss of earnings up to trial.  The sum awarded is $788,440.

Future loss of earnings:

37.  Having regard to the psychiatric evidence, and the orthopaedic evidence, I am satisfied that, after appropriate medical treatment, Ms Ng will be able to return to the workforce, where she will be able to undertake a job as a waitress just as she was prior to the accident.  The psychiatric treatment that she requires should not take more than nine months.  Once that treatment is complete she will be fit to work.  It will be reasonable that during that period she will not be able to work.

38.  In making an award for future loss of earnings during the period of treatment I bear in mind my finding that it was reasonable for her to remain within the government system to date, and that following specialist psychiatric care in the private sector she will be able to return to work.  Prior to the conclusion of this litigation she could not have afforded such care and has not conducted herself unreasonably.

39.  I award nine months at $13,712, a sum of $123,408.

40.  It is right that she may not earn as much as she was previously as a waitress, but that is a consequence of the market not a consequence of the accident.

Future medical expenses:

41.  Essential to Ms Ng’s recovery is psychiatric treatment of a high quality.  I accept the view of Dr Wong in this respect.  There was no suggestion that, if awarded a sum for future medical expenses, Ms Ng would not undertake the psychiatric care that has been recommended.  I award in this respect the sum of $100,000.

Loss of pension fund contributions:

42.  Ms Ng was not a member of the MPF but belonged to the Golf Club’s own pension fund scheme.  Mr Lim did not dispute the calculations submitted by Mr Cheung.  I award a pre-trial loss of $29,167, and a post-trial loss during the period of medical treatment of $4,565.

Loss of future earning capacity:

43.  Having regard to the medical evidence it cannot be said that Ms Ng suffers a real and substantial risk of losing a job in the future because of her injuries.  This is not a case for an award for loss of future earning capacity.

Special damages:

44.  Mr Lim argued that the award of special damages should be limited having regard to the exaggeration.  In its Answer the Golf Club accepted medical expenses at $7,748 and travelling expenses $8,104.  Those sums are awarded.  Ms Ng claims $15,000 for tonic food.  In the usual way there is no proof of purchase of tonic food.  But I accept that it is reasonable for a person to use tonic food in an effort to recover.  I award $7,500.

Summary:

45.  In summary the following sums are awarded:

PSLA :	$250,000
Pre-trial earnings loss :	$788,440
Post-trial earnings loss :	$123,408
Future Medical Expenses :	$100,000
Pension fund contributions :	$ 33,732
Special damages :	$ 23,352
Total; Award :	$1,318,932

Costs:

46.  Ms Ng must give credit for a sum of 1,047,521 paid by way of employees compensation.  The sum awarded exceeds the amount of employees compensation paid, and Ms Ng is entitled to her costs in the proceedings, on a party and party basis, and to be taxed on Legal Aid Regulations.