THAPA INDRA KUMARI v. TSANG LIK SERVICES LTD

HCPI 1250/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1250 OF 2003

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J U D G M E N T

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1. The plaintiff is claiming damages for lower back pain from injury sustained at work.  The trial is on both liability and quantum.

2. The trial was conducted in English, but part of the evidence was taken in Chinese without interpretation.

I.   LIABILITY

Introduction

3. The plaintiff is Nepalese.  She was a cleaner employed by the defendant.  The defendant was the cleaning contractor for the Wilson Car Parks and adjoining areas at Chek Lap Kok Airport.  Her work hours were from 8 am to 11 pm. 

4. The plaintiff’s duty was to empty the rubbish from rubbish bins and to move them to the rubbish dump.  She would tip the rubbish from the bins into the bags, and push several bags to the dump using a wheel cart.  Each rubbish bag was about 36 inches by 42 inches in size.  

5. There is in issue whether the plaintiff did sustain the back injury at work at all.  Employees’ compensation was paid without prejudice as to liability.

Plaintiff’s case

6. On 2 April 2001 at 6 pm, the plaintiff was at Car Park 2.  At that time, there were four full rubbish bags in two layers on the cart, and a half empty bag on top.  The height at the top layer of the filled rubbish bags was about 3½ feet. 

7. The plaintiff saw a discarded car battery sitting on the ground beside a rubbish bin.  The car battery was about 1½ foot by 1 foot by 1 foot in size, weighing about 15 to 20 kg.   She picked up the car battery with some difficulty and put it inside the half empty bag, and she covered it with rubbish to make sure the bag would not be torn by the weight of the car battery.  She tied up the bag.  She tried to put the bag on top of the two layers of rubbish bags already on the cart.  She lifted her right knee to give the bag a push.  Suddenly, she felt like electrocuted with knife stabbing pain.  She felt tense and could not move sideways, could not squat or sit down, felt dizzy and could not see clearly.  She sat down to rest for 10 minutes.  She was in great pain and sweating.  Once she felt better, she pushed the cart to the dump which was two to three minutes away.

8. The plaintiff said she encountered discarded car batteries frequently.  She had lifted them before and thought it was not difficult.  If she had thought it was too heavy, she could have asked for assistance.

9. When she came back, she told foreman Ah Chung through a Nepalese colleague that she hurt her back and was painful and she could not work.  He told her in a threatening manner that she could not take leave but had to work.  He told her to take pain killer and to do light duty.

That night, the plaintiff took Penadol and messaged the back with oil.

10. On the next day, i.e. 3 April, the plaintiff went to work because she was told if she did not work, she would be fired.  Each time Ah Chung saw her, he tried to hide away from her.

11. On 4 April and 5 April, the plaintiff was in continuous pain but she had to work because Ah Chung refused her leave application.  The plaintiff asked her colleague to help her whenever she could find one.

12. On 5 April at 11 p.m., the plaintiff finished her work and she went to Pok Oi Hospital at 12 mid-night on 6 April.  She told the doctor through her husband interpreting in English that she lifted garbage and felt back pain during work.  She also told the doctor she was feverish.  She was given three days’ sick leave from 6 to 8 April.

13. On 6 April, the plaintiff phoned Ah Chung and said she was given three days sick leave.  He said she must come back to work, or she would be fired.  She went to give Ah Chung the sick leave certificate but he did not take it.  At 11 a.m., her body started shaking and legs hurting.  She told Ah Chung she could not work.  Ah Chung still said she would be fired.  Only when her friend complained that she had sick leave certificate and he could fire her if he so wished that he allowed her to go.

14. On 7 April, the plaintiff stayed at home.  On 8 April, she was still painful.  She could not turn her back when lied down.  Her husband took her to Tuen Mun Hospital.  She told the doctor through her husband how she was injured.  She was admitted to hospital.  She was treated with analgesic and physiotherapy and was discharged on 11 April.

15. The plaintiff denied filling in the leave application form dated 9 April 2001 for three days’ sick leave from 6 to 8 April 2001.  The form had the plaintiff’s name written by hand.  She said she was in hospital between 8 to 11 April 2001 and could not have written it.

16. After discharge, she never returned to work.  Her friends took her sick leave certificates back to the company from time to time.  She never called back since she could not communicate.  Eventually, when her husband went to hand in the sick leave certificate for 18 July to 12 September 2001, he was told that she was dismissed because she had taken too much sick leave. 

17. The plaintiff was granted sick leave from 8 April 2001 until 10 October 2001.  

The defence case

18. The defence case is that the plaintiff never reported any injury at work, and she resigned during her sick leave period.  The first time the defendant knew about the alleged injury was when the Labour Department wrote on 23 October 2001 asking why they had not filed the report of accident Form 2.

19. Ah Chung was not called since he had left the employment of the defendant in May 2001.

20. Mr Cheung Yu Kwong (“DW2”) was the manager of the defendant.  He said the defendant was fully covered by insurance and there was no reason why they had to conceal an accident if ever reported.

21. On 16 October 1999, DW2 filled out a Preliminary Assessment Form for Handling Manual Labour Operation in respect of the cleaning work at the Wilson Car Park at the Airport.  His ticked “no” to the following questions :

(1)	Do the manual handling operation involve repeated awkward postures such as twisting of waist, kneeling, stooping, bending or twisting the wrist and extending the arm above the shoulder;
(2)	Do the employees do not require strenuous effort (i.e. to handle loads greater than 16 kg without mechanical aids such as trolleys or simple lifting equipment);
(3)	Is there any information indicating these manual handling operation(s) involving significant risk(s) of injury;
(4)	Are there any conditions in the working environment that may create additional risks to the manual handling operator(s) such as space constraints, slippery, uneven or unstable floors, and variation in the level of floors or work surfaces;
(5)	Are the employee(s) unsuitable to perform or physically incapable of performing these manual handling operations such as temporary or permanent injuries, msculoskeletal disorders , health problems or pregnancy.

And DW2 concluded that no further assessment was required.

22. DW2 added that the assessment was done in respect of all cleaners at the Wilson Car Park, rather than for individual cleaner or specific task such as rubbish collection.

23. DW2 was asked about the leave application form dated 9 April 2001 for three days’ sick leave from 6 to 8 April 2001 which the plaintiff denied writing.  DW2 said he could not remember who took it in but it bore the name of the plaintiff and was dated 9 April 2001, and he wrote down 10 April 2001 upon receipt.

24. Thereafter, the plaintiff’s sick leave certificates were taken in from time to time.  DW2’s superior found the lengthy sick leave unusual and suspected that it might be injury at work.  DW2 was instructed to investigate and he asked the staff of Wilson Parking and was told no worker was reported injured at work.  DW2 tried to contact the plaintiff since April 2001 but was of no avail.  Suddenly on 20 June 2001, the plaintiff rang and told DW2 that she was only suffering from an ordinary old ailment.  According to his desk diary, he noted down that the plaintiff did not mention any injury at work, though he could not recall the fact now.

25. DW2 denied telling the plaintiff’s husband that she was dismissed because she took too much sick leave.  DW2 only told him that her certified sick leave had exceeded her accrued paid sick leave and there could be no pay.

26. Mr Leung Kai Chung (“DW1”) was the foreman at the freight terminal.  He formally took over Ah Chung’s duties from 24 July 2001.

27. On 24 July 2001, the plaintiff rang up the company and DW1 talked to her in Cantonese and simple English.  DW1 asked about her medical condition and the plaintiff said basically no problem.  The plaintiff said she wanted to quit.  DW1 told her that she had to give one month’s notice and to sign the resignation form, but the plaintiff said she still felt uncomfortable and could not come.

28. DW1 sought instructions from his superior that if the plaintiff could not come to the company, oral notice would be acceptable.  She told the plaintiff so when she called back.

29. DW1 said the plaintiff never mentioned any injury at work during the two telephone conversations.  DW1 filled in the application for resignation dated 24 July 2001 for the plaintiff, stating the termination would take effect on 24 August 2001.

30. DW1 said the cleaners had been told to keep their back straight when lifting rubbish and to ask for help when the items were too heavy.  Ah Chung would have taught the plaintiff so.  DW1 never saw the plaintiff adopting incorrect posture in lifting rubbish.  DW1 had personally told the plaintiff not to overload the rubbish bag.

31. DW1 said there were written instructions to the cleaners that they were not expected to move heavy or bulky items such as wooden boards incapable of moving by one person, but to report them to the foremen so that they would be picked up by Wilson Parking’s patrol vehicle.  He had inspected the car parks at the passenger terminal from time to time and had never seen any discarded car batteries.

32. DW2 also said the cleaners were instructed not to deal any unusual items such as lost luggage or bulky items and Wilson Parking should be notified and their patrol car would pick them up.  He later augmented his evidence to include any item of rubbish which was not found inside the rubbish.

Medical evidence

33. There is serious dispute as to when the plaintiff first told the doctors about her being injured at work.  The record shows that it was 25 April 2001.

34. The first consultation was on 6 April 2001 at 01:17 hours at Pok Oi Hospital 24-Hour Clinic.  The medical notes show :

“Back pain for 3 days, no history of episode trauma, job mainly cleaning, some portering of rubbish, had self medication with pain killer, pain not relieved, so came now.”

35. On 8 April 2001 at 14:35 hours, the plaintiff went to the Accident and Emergency Department of Tuen Mun Hospital.  The record shows :

“LBP x 3/7, mechanical pain, trauma^o”

indicating lower back pain for three days, mechanical pain without trauma. 

36. The plaintiff was admitted into Tuen Mun Hospital at 15:30 hours on 8 April 2001 until discharge on 11 April 2001.  The history sheet shows :

“6 days ago bend the body and wanted to lift some light object up and developed LBP suddenly – no other trauma – mechanical pain.”

The Integrated Treatment/Progress Notes on 8 April showed :

“Sudden onset back pain while bending trunk and try to lift up thing 6/7 ago, 1^st episode, mechanical pain, no LL (lower limb) neurology”

This note was repeated in the discharge summary on 11 April 2001.

37. The clinical notes dated 25 April 2001 of Tun Mun Hospital Out-Patient Clinc stated for the first time that the plaintiff had work related back injury :

“Work as cleaner — work related back injury while lifting heavy object — admitted to hospital for LBP — now 3/52 post injury — but persistent back pain — no LL neurology”

38. The medical report for employees’ compensation dated

25 March 2002 by the Principal Medical Officer of the Pok Oi Hospital 24-Hour Clinic stated that there was no history of injury at work, no recent trauma incident and no alleged accident was disclosed at the consultation at 13:17 hours on 6 April 2001.

39. The medical report for employees’ compensation (undated) of Dr S W Kong of Tuen Mun Hospital Orthopaedics and Traumatology Department stated that :

“The patient only claimed injury at work when she attended our outpatient clinic.  According to our record, she was referred from Pok Oi Hospital on 6 April 2002 and was admitted into our unit on 8 April 2001, she did not claim injury at work at the time.  The symptom was low back pain.  X-ray lumber spine did not show any abnormality.  Pain was improved after physiotherapy and she was discharged on 11 April 2001 and she claimed injury at work when she was seen again at our out patient clinic.  In patient record not documented any injury at work.”

Assessment of the evidence

40. Mr Kwok for the defendant submitted that there would have been nothing unusual in the plaintiff’s operation but for the handling the 20 kg discarded car battery.  Before I proceed to consider the issue of the foreseeablity by the defendant of such scenario, I need to determine the facts.

41. Much time has been spent on the plaintiff’s inability to communicate in English and/or Chinese.  Miss Cheng for the plaintiff tried to use this point to explain the absence of reference to any injury at work in the early medical records.  I think both parties have exaggerated on this point.  The plaintiff said she only knew a little bit English, and a few words in Chinese relating to work.  She claimed that she could not communicate with her superiors except through the interpretation of her Nepalese colleagues.  DW2 said that the defendant would not employ a Nepalese cleaner unless she could communicate in simple English and/or Chinese.  I think it is common sense to expect so.   On the other hand, DW1 exaggerated his ability to converse in English, which he failed to show in the witness box.  I think the truth lies somewhere in between.

42. Mr Kwok submitted that the plaintiff is not a credible witness and referred to various discrepancies.

43. Mr Kwok pointed out that the plaintiff’s viva voce evidence of the accident is at variance with her witness statement, where she said she lifted a rubbish bag, and amongst other things, there were batteries inside.  There was no mention that she picked up an exceptionally heavy car battery beside the rubbish bin.

44. The plaintiff gave vivid description of how she was injured, but when she was asked which of her knees was hurting when she decided to stop working on 6 April 2001, she said she could not remember.

45. Miss Cheng submitted that in her witness statement, the plaintiff was describing the content of the rubbish bag which was the cause of her injury.  It is unfair to pick on a single sentence out of context.

46. Mr Kwok submitted that the plaintiff never told the doctors about any injury at work until 25 April 2001.  The earlier records even mentioned she hurt her back when only lifting light object.      

47. Miss Cheng submitted that the earlier records did show the plaintiff’s nature of work.  She also laid much emphasis on the language barrier of the plaintiff in order to explain the apparent omission recent complaint in the medical report.  The medical records were inconsistent on this point : some doctors had ticked the informant as “self” as opposed to “spouse”, while others recorded language barrier with the plaintiff.  Be that as it may, the plaintiff said she had told her husband the cause of the injury, and he had in turn told the doctors in English.  There was no suggestion that the husband had any language barrier.  If so, there is no reason why the doctor would have omitted to record injury at work.

48. Not only was injury at work not mentioned in the earlier records, the two medical reports for employees’ compensation respectively by Pok Oi Hospital and Tuen Mun Hospital stated there was no report of injury at work at the respective first consultation.  Granted that there must be an element of hearsay in the medical records, they are documents put in by the plaintiff to prove medical treatment, and if any inconsistencies arise ex facie, it is incumbent on the plaintiff to clarify them.  The failure to do so exposes the plaintiff’s allegation of injury at work to doubt.

49. The plaintiff was also exposed to be unreliable on her sick leave record and application form.  She tried to create an image that the defendant was harsh and had been denying her sick leave entitlement.  However, she had to retract her allegation when the record showed that she did take numerous sick leaves during January to April 2001.

50. The plaintiff denied signing the leave application form dated 9 April 2001.  It was not signed but her name were hand written on it.  However, earlier leave application form bore the exact style of writing.  Upon cross-examination, she had to say she could no longer remember whether she had filled in the impugned leave application form.

51. All in all, I am not impressed by the plaintiff as a witness.

52. On the other hand, I also find the defence witnesses far from convincing.  DW1 said there were written instructions to the cleaners not to move exceptionally heavy or bulky items of rubbish.  Mr Kwok conceded that there was none.  DW1 also said he told the plaintiff not to overload the rubbish bags but there was no such mention in his witness statement of this highly relevant point.  When asked why there was such an omission, surprisingly he said it would be more appropriately to ask the person on site to answer.

53. Granted that Wilson Parking might have to be notified to pick up any unattended luggage, I find it incredible that they would deploy their patrol vehicle to remove the bulky items of rubbish as well.  DW1 agreed that Wilson Parking had no official cleaning team of their own.  I failed to see why Wilson Parking would still want to do part of the job if they had contracted the cleaning to the plaintiff.

54. DW2 even said Wilson Parking had to be notified of any items of rubbish not inside the rubbish bin.  I note in the defendant’s plan for the service areas, it was footnoted that the plaintiff’s duties included the removal of miscellaneous items.

55. I find it incredible that having been asked by his superior to investigate whether the plaintiff was injured at work with the staff of Wilson Parking, DW2 either did not nor could not remember asking the plaintiff whether she was injured at work when she rang up in June 2001.

56. I also find it incredible that the plaintiff would tender an oral resignation during her sick leave period without reference to any injury at work.  There is no immediacy for her to resign then especially if she did not feel well enough to come to the office to sign the resignation form.  Even if her paid sickness days were running out, as according to her it was injury at work, her sick leave was certified until 12 September 2001. 

57. Moreover, by 25 April 2001 the plaintiff had mentioned to the doctor that the injury was work related, she must have made up her mind to claim compensation for injury at work by then if not earlier.  Hence, it would be strange for her to have told DW2 in June 2001 that she was suffering from an ordinary old ailment, and to DW1 in July 2001 that she was basically alright without mentioning any injury at work.  Further, I query whether it was mere coincidental that the oral resignation took place on the first day of DW1 taking over the duties of Ah Chung.  It gives an impression that DW1 merely wanted to wipe the slate clean.

58. DW2’s assessment of manual handling in relation to the cleaning work seems to be general and superficial, and indeed preliminary.  It did not deal with specific risks involved in the different types of work.  In view of my finding of facts, it is not necessary for me to look into the matter further.  But I hope that the defendant may see fit to undertake the further assessment which DW2 has considered unnecessary in 1999.

59. So much being said on the defence case, the plaintiff’s failure to prove her case could not be salvaged by the rejection of the defendant’s evidence.  But the defendant’s conduct of the trial is something I must take into account on the issue of costs.

Conclusion

60. The plaintiff has failed to prove that her injury was caused in the manner described by her.  Her claim is dismissed.  It is unnecessary for me to consider quantum.

61. By reason of my view on the defence evidence, I shall make no order as to costs.