LI KWOK LO v. CAFé DE CORAL HOLDINGS LTD.

HCPI 804/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.804 OF 2001

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J U D G M E N T

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1) The plaintiff seeks compensation for injuries she suffered whilst working for the defendant on the 22 October 1998. She had started her employment with the defendant on the 1 August 1998, almost three months before the incident which has given rise to this claim.

2) She was 47 at the time she received the injury and is 51 today.

3) She worked at a branch of the defendant company at Shamshiupo and that branch undertook to deliver lunch boxes to the children at a local school, the San Wui Commercial Society Kowloon School in Shamshuipo. As part of her employment she was required with colleagues to deliver lunch boxes to the school. The lunch boxes were packed into trays and the trays were loaded onto a van. At the school the plaintiff and her co-workers would, in teams of two, carry the trays upstairs and deliver the boxes to the children and it was during one such delivery, the plaintiff says, that she was injured.

The accident

4) The plaintiff has given evidence and has adopted her two statements. The defendant disputes her version of how the accident happened and has called Madam Siu Shui Fan who was working at the same branch at the time. Madam Siu did not see what happened but has been able to tell me about what she says was the working practice at the time. I will come to her evidence shortly. The plaintiff tells me that on 22 October 1998 she and her co-workers arrived at the school to deliver lunch. They unloaded the plastic containers and in pairs started to carry them up the stairs in the school to different floors. Each container measured about 18" x 25" x 15" and were packed with lunch boxes. Each loaded container weighed, she thought, about 60 to 65 pounds, and they were not made with any sort of handles. The plaintiff told me that to carry a container, it was necessary to hold it under a lip which was moulded around the top. The school is a six-storey building and has no lifts which meant that the containers had to be carried to each floor. Two employees would work together and each couple would carry two containers at a time, one stacked on top of the other, with a total weight of about 120 to 130 lbs. They would normally walk up the staircase side by side, each holding the containers with one hand, with the containers between them. The deliveries had to be completed before the school children started their lunch break at 12 noon.

5) On 22 October, the plaintiff and her colleague, Madam Woo Hap Foon, had delivered to the 5th and 6th floors and were taking two more containers from the 3rd to the 4th floor. She was cross-examined about what happened next and provided more details than appear in her written statement. Madam Woo, she said, moved in front of the plaintiff and out of step with her. They had been walking up the stairs side by side but now Madam Woo was in front of the plaintiff and pulled at the containers causing a sudden "immense pain" in her right arm. They stopped and rested, later completing the delivery with the help of other colleagues.

6) She told me that she related what had happened to her branch manager upon return to the branch, but that he required her to work on nevertheless until the busy lunch period was over. After the lunch business had finished she went to the Accident & Emergency Medical Centre.

7) Her evidence was that she had never received any guidance as to how to move the loaded containers, nor had she been told that she should only move one at a time. On the contrary, she said, the manager asked them to carry two at once. She had never received a copy of an industrial safety handbook from her employer.

8) When cross-examined she agreed that she had been delivering lunch boxes to the school since the beginning of the school term on 1 September on average three to four days each week. She was, she said, physically able to carry each loaded container and was able to cope with two containers with the help of a colleague, although she had complained that they were too heavy.

9) A container was produced by the defence of similar dimensions to those given by the plaintiff. It had moulded handles and wheels underneath. The plaintiff, however, told me that the one she used was different. It was bigger inasmuch as the containers she used had parallel sides, whereas the one produced to her tapered towards the base, the one she used did not have wheels (although given the facts of this case that has limited relevance) and the one she used had a moulded lip around the top but no moulded handles. She was also shown a lunch box a lightweight tin foil one but said those she used were more substantial re-useable ones and in fact when re-examined she produced her own example of the sort of lunch box involved, a sample she had gone out and bought overnight. It was a more solid, heavier insulated lunch box. She did not accept the defence contention that the overall weight of each container loaded with lunchboxes would have been about 35-36 lbs, rather than the 60-65 lbs she claimed. In fact Madam Siu, the defence witness later gave evidence that she thought the weight of such a loaded container would be nearer 48 lbs, not 35 lbs, but that is another matter.

10) Questions were put to her asking why she agreed with her colleague, Madam Woo, that Madam Woo should walk in front, but her evidence was plain that she agreed to no such thing. She had not walked in front before and it was as they walked up the stairs side by side that Madam Woo walked ahead and in front, and as she did so the plaintiff told her to stop pulling. Despite this she did not stop and this is when the damage occurred.

11) The defence disputed the circumstances of the incident. They called Madam Siu who is now an assistant branch manager but who was a supervisor at the same branch as the plaintiff at the time of the incident. She did not see what happened but did tell me what their practice was. There were, she thought, eight staff involved in the delivery altogether on the day in question, not four as the plaintiff thought, and she told me that the plastic container she had produced, exhibited as D1, was similar to that used at the time, as was the tin foil food box, exhibit D2. When asked she agreed that other boxes, similar to that produced by the plaintiff were also used. Different boxes for different foods. If the boxes were mixed, a total of about 30 boxes would be carried in each plastic container, whereas if only foil boxes were used the total would be 21. In any event only one plastic container full of boxes would be carried at a time, not two as the plaintiff claimed and the approximate weight of such a plastic box would be no more than 48 lbs, rather than the 60-65 lbs claimed by the plaintiff.

12) Madam Siu gave evidence about the system of work, evidence which was directly contrary to that given by the plaintiff. The staff had been told that they must try the weight of the container before lifting it, and lower the body. The weight of the boxes had been calculated and not more than 30 boxes were to be put into a container to alleviate danger to employees. Two persons would form one team and would carry only one container at a time. In her seven years with the company there had been no other accidents during delivery of lunch boxes.

13) Although straightforward in chief, I found Madam Siu to be less convincing when cross-examined. For example she purported in chief to give the impression that although she did not see the accident she was in fact engaged in deliveries to the school on the 22 October. She could remember that eight people were involved and even some of their names. Only later did it emerge, after a good degree of prevarication, that she was talking generally and could not remember what happened on that day in particular. It was noticeable at times that when she was unsure of an answer she would shade it towards the defendant, her employer. An example : when questioned about the plastic container she produced she said there were no dissimilarities between that one and the one used on the day in question, then she conceded that she could not remember if there were any dissimilarities or not, it was she said understandably, too long ago. She was, nevertheless certain that the original container did taper inwards, narrowing towards the base, and was certain that the moulding around the lip of the container was not narrower on the original than on the exhibit. Although she was prepared to be specific about such detail, she could not remember, she said, whether metal carts were used to load the plastic containers on to the van, three or four at a time, and to take them from the van to the school lobby. Madam Siu was not persuasive.

14) She did agree that she could not say that the plaintiff had received the same training as she.

15) She was asked if she ever saw any of her colleagues carrying two containers at once. A simple enough question, but one which she was unable to answer satisfactorily saying only that she "did not pay attention" or that she was "not sure".

16) She may have received the training she claimed. I am satisfied the plaintiff did not.

17) There were minor discrepancies between the evidence the plaintiff gave to me and her evidence as it appeared in her witness statement, for example the time they left the Café de Coral branch to start the delivery. But such discrepancies were minor and the incident was, as the plaintiff reminded us, four years ago. I am aware that I shall shortly in this judgment make findings that the plaintiff has exaggerated her medical condition. I have borne that firmly in mind when accepting her evidence on liability and have treated her evidence with care.

18) Despite this she struck me as a straightforward witness who was doing her best to tell me what had happened. Certainly she was at times emotional, but not overly so nor, did I think, falsely so. It may be that she has overestimated the weight of the containers loaded with lunch boxes, I do not know how she came to the figure she gave. In the event it matters little. I accept her evidence that she with her partner was required to carry two at once and Madam Siu concedes a 48 lbs weight for each. Whether she carried one or two containers at once is a matter of fact which she will not have forgotten. She is either telling me the truth or deliberately lying. I believe her. The containers are large and cumbersome. Those the plaintiff carried had no handles and had to be carried up a staircase by holding a narrow moulded lip. The situation was, quite simply, an accident waiting to happen.

Findings of fact

19) The plaintiff was employed by the defendant at the relevant time and part of her duties were to deliver lunch boxes to a local school. I believe her when she says she was given no instruction on how she should carry out her work and that she was not given a copy of the company handbook. I accept her evidence that she and Madam Woo were required to carry containers full of such lunch boxes from the ground floor of the school, by stairs to the floors above. They were required to carry them two at a time. The containers had no dedicated handles and had to be carried by holding on to a moulded lip. Whilst it would be too much to expect the plaintiff to be precise about the exact weight of the containers she carried, I have seen a container in court which is of similar although smaller dimensions. Madam Siu concedes a 48 lb weight for each container. There can be no doubt that two such containers would have been a very heavy load, too heavy for two ladies to have been reasonably expected to carry safely. They would also, stacked one on top of the other and held only by a narrow lip, have been unwieldy. The ladies managed their load by walking side by side up the stairs and I find as a fact that between the 3rd and 4th floors Madam Woo surged ahead, pulling the containers and causing injury to the plaintiff.

Duty of care

20) The standard of an employer's duty towards his employee is to see that reasonable care is taken and the scope of that duty extends to the provision of safe fellow employees, safe equipment, safe place of work and access to it and a safe system of work.¹ Charlesworth & Percy² describe a system of work as the term used to describe :

"(i) the organisation of the work; (ii) the way in which it is intended the work shall be carried out; (iii) the giving of adequate instructions (especially to inexperienced workers); (iv) the sequence of events; (v) the taking of precautions for the safety of the workers and at what stages; (vi) the number of such persons required to do the job; (vii) the part to be taken by each of the various persons employed; and (viii) the moment at which they shall perform their respective tasks."

21) Given my findings of fact, there is no doubt that in this case the defendant failed to provide a safe system of work for the plaintiff. It failed in a number of ways. Two in particular stand out.

(a) She was inexperienced in the sort of work she was engaged in - she had been employed since August but had only been delivering lunch boxes on a regular basis since September. None of her previous jobs had equipped her for carrying heavy and unwieldy loads. There are ways in which loads can safely be lifted and carried, there are recognised postures to be adopted and there are of course limits to the weight which can safely be carried. She had been given no instructions about this by the defendant company.

(b) The plaintiff was expected to carry not one but two containers full of food up a staircase, from the ground floor to the 6th floor and floors below. She had a partner and they were to carry the containers between them, side by side, holding them by a moulded lip. There were no handles, the containers were stacked one on top of the other and they were heavy. The fact that there had been no mishap before is, to my mind, fortuitous. Madam Li fell out of step with Madam Woo, their balance was upset and the accident happened. Madam Woo is not to be blamed, it is entirely unreasonable to expect two ladies to march in step up stairs carrying such a load in such a manner. The employer ought reasonably to have realised this might happen and that if it did injury would be caused. The way in which the plaintiff was instructed to carry out her task was unreasonable and plainly unsafe.

22) I find that negligence is established against the defendant and on the facts as I have found them there is no question of contributory negligence on her part.

Quantum

23) The plaintiff went to the Accident & Emergency Department of Caritas Medical Centre on the day of the accident and has seen a number of doctors since complaining principally of right shoulder pain and stiffness, with right hand tremor. An MRI scan on the 10 August 1999, showed "some oedema of supra-spinatus tendon which might be due to tendinitis"³, and she had right shoulder arthroscopic surgery, including debridement, carried out at the Prince of Wales Hospital on the 2 December 1999 which revealed "superior labrum lesion and small tear of rotator cuffs of right shoulder". To this day she receives physiotherapy.

24) Dr Johnson C.K. Lam has presented a report on behalf of the plaintiff while Dr Arthur Chiang Si Chung saw her for the defendant company. Both conclude that the most likely diagnosis is reflex sympathetic dystrophy. A typical presentation of this condition is, according to Dr Chiang⁴, in three stages :

"Stage1, pain is usually severe and may occur immediately following injury or be delayed for some weeks. Movement of the affected part is diminished and there is frequently soft tissue oedema, increased blood supply to the skin with increased skin temperature and redness. This stage often lasts for weeks.
Stage 2, the pain continues, characteristically at a severe level, and becomes more diffuse. Movement of the affected part becomes further restricted, and the skin becomes cool. This stage often lasts for several months.
Stage 3, the main symptom is pain, which may affect the entire limb. Skin blood flow is decreased so that the skin appears pale, cool and atrophic. Nails become grooved and fissured and joint movements are severely restricted with the development of joint contratcures.
Generally, some of the cases may not develop all the above features, but most would run a prolonged course with persistent painful symptoms. These symptoms may at a later stage (e.g. more than 1 to 2 years) improve to some or a large extent with regular physical activities, exercise and a long course of physiotherapy treatment."

25) The doctors agree that the back pain and the pain in her feet which she complains of are unlikely to be related to the accident as is her right eye problem but they differ as to her present condition. Dr Lam feels that the effects of reflex sympathetic dystrophy on her upper limb and neck mean that the plaintiff is unlikely to be able to return to any gainful employment. She will indeed, he says, "require long term, multidisciplinary treatment to alleviate her pain".⁵ He assesses the degree of permanent disability as in the region of 73 - 80%. He is also of the view that she is unable to perform most household duties.

26) Dr Chiang takes a different view. He noted that the plaintiff made 13 specific complaints and he listed them at page 4 of his report. He then reported his physical findings. He noted among other things that there were constant tremors in her right index finger, and she complained of tenderness when the arm was palpitated and of severe pain at the end range of her right shoulder movement. However he noted that there was no wasting of muscle in the two upper limbs, there was no obvious hyperaemia or change of skin colour in her right upper arm, nor were there significant temperature differences between the two upper arms and the skin of her right upper arm was not shiny or atrophic.

27) His examination of her neck revealed no spasm nor stiffness although there was tenderness along the spine. Significantly he observed that she was able to move her neck more freely during the examination generally than she was when specifically asked to move it. Similarly the doctor observed that during the examination when she got onto and off the couch her right shoulder movement was better than when examined specifically. He did however concede that she might have mild end range shoulder movement limitation.

28) There were other features which the doctor suggested indicated that her condition was milder than she asserted. X-rays revealed no obvious diffuse osteoporosis, which he would have expected to see, nor was there significant soft tissue swelling, abnormal skin tugor, texture, colour and temperature at the shoulder. In addition his measurements indicated no muscle wastage which, again, he would have expected to have found. He further noted in his second report, dated 4 July 2002, that although he and Dr Lam had each carried out some of the same tests, the results Dr Lam attained were significantly different from those he noted. This all points, he suggests, to exaggeration.

29) Whilst he accepted that the plaintiff had most likely sustained an injury to her right shoulder and neck area which had led to reflex sympathetic dystrophy he was of the view that this was partially healed, that it was now stabilised and that further treatment is unlikely to be beneficial. He thought, at page 12, that although "milder underlying residues might be present, the condition had likely been exaggerated". And later that the use of the walking stick was unnecessary.

30) It is always difficult when a court is faced with reports from two doctors which, although reasoned, manage to come to different conclusions. In the event, and in particular having noted the matters which I have referred to in the preceding four paragraphs, I am persuaded to Dr Chiang's view.

PSLA

31) The Court of Appeal in 1996⁶, set the band for serious injury at $400,000 to $540,000. The plaintiff claims $650,000, saying that this is at the high end of the "serious injuries" category taking inflation into account. Defence counsel disputes the increased figures, reminding me that I have heard no evidence as to the incidence or rate of inflation since 1996 and that although the plaintiff has cited cases which have acknowledged the effects of inflation since⁷, equally the defence have produced a case⁸ which did not. The cases counsel refer me to are, of course, not guideline cases. They are examples of judges applying the guidelines to the facts before them and while such cases are illustrative each depends very much on its own facts.

32) The "serious injury" category is appropriate where :

"... the injury leaves a disability which mars general activities and enjoyment of life, but allows a reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.⁹"

33) For my part having reviewed all the evidence I am not persuaded that the plaintiff's condition reaches the "serious injury" category. On the facts of this case I cannot see that the correct award can be any higher than that suggested by the defendant, $360,000.

34) I consider an award of $360,000 to be appropriate.

Loss of pre-trial earnings

35) At the date of the accident the plaintiff was earning on average $9,340 per month as a supervisor. She had been in the job for less than three months. The plaintiff contends that she but for her accident she would have been promoted by now. She bases this on a comment made to her when she was interviewed for her job as a supervisor, that she could expect promotion to assistant general manager after a three month probation or at least after two years' experience in the job. On the other hand, I have heard from Madam Cheung, who works in the defendant's Human Resources Department, that it would take at least five years for someone with the plaintiff's lack of experience in the field to achieve promotion, and that promotion in fact normally takes seven years. She told me there are employees who remain working as supervisors after ten years. I do however note that the second defence witness, Madam Siu, was promoted from supervisor to assistant general manager after three years and eight months. Many factors, of course, play a part in such matters and the plaintiff has not satisfied me that she would have been promoted by now.

36) The defence attempt to limit pre-trial loss on the basis of Dr Chiang's opinion that 18 months' sick leave would have sufficed. That was an opinion given in September 2001. In fact I note that the plaintiff has been examined as recently as August this year and has been recommended for sick leave until December 2002.

37) I award pre-trial loss of earnings from the time of the accident until trial at the supervisor's average rate of $9,340. In addition there should be double pay on her basic wage of $7,650 for the years 1999, 2000, and 2001 and pro-rata from 1 August 1998 to 31 December 1998. The total double pay amounts to $26,137. I accept defence evidence that there will be no double pay in 2002.

38) The amount I award is $9,340 x 48 = $448,320 + $26,137 = $474,457.

Future loss of earnings

39) The plaintiff contends that she will never work again and looks for support in Dr Lam's finding that she is unlikely to be able to return to any gainful employment. Dr Chiang, however, estimates the permanent impairment to the whole person from the residue of the reflex sympathetic dystrophy at 10 - 15%. He accepts that she might not be able to return to her former job but indicates that she should be able to work for example as a cashier, a car park attendant or as a shop assistant. For reasons I have already indicated at paragraph 30, I prefer Dr Chiang's reasoning.

40) In assessing the wage she might achieve I have been referred both to a table of monthly wages produced by the Selective Placement Division of the Labour Department and to the Quarterly Report of Wage and Payroll Statistics produced by the Census and Statistics Department of the Government. I am satisfied on the evidence before me that her condition has stabilised and that future treatment is unlikely to help. In all the circumstances it would be reasonable for her to be looking for employment involving light duties when her sick leave period ends. From the trial date until the end of December she will receive $18,680 (2 x $9,340).

41) Given the present economic climate, her age and the fact that she has not worked for four years, I should allow her a sensible period thereafter for her to look for such employment. I will allow four months from the end of her sick leave period at the end of December, $37,360.

42) Doing the best I can on the evidence before me I believe she should be able to find appropriate work which will pay her around $4,000 per month. The plaintiff has not persuaded me that she would have been promoted within the period she claims. I do, however, on the evidence of Madam Cheung, accept that supervisors are normally promoted within seven years and think it reasonable to believe that the plaintiff would have achieved the position of assistant general manager within seven years. Her age, personal circumstances and the sort of work she could do persuade me that a multiplier of eight is appropriate. In computing the multiplicand I have assumed three years at supervisor rates ($9,340) - she would have worked four years by now, but for the accident and five at assistant general manager rates (Madam Siu presently earns $11,479 in that position). Averaged out over eight years on that basis her salary would notionally have been $10,677. I therefore arrive at a multiplicand of $10,677 - $4,000 = $6,677.

43) The award for future loss of earnings is therefore $6,677 x 8 x 12 = $640,992 + $18,680 + $37,360 = $697,032.

Loss of MPF

44) The plaintiff's loss of MPF is :

(i)	from 1 December 2000 to date of trial
	$9,340 x 5% x 23 months = $10,741;

(ii)	Post-trial
	$697,032 x 5% = $34,851.

Special damages

45) The plaintiff's medical expenses thus far are well-documented and reasonable. I shall order the full amount claimed $36,844.

46) She is still, despite Dr Chiang's findings, receiving weekly physiotherapy on the recommendation of the Caritas Medical Centre. Each session costs her $44. I will allow this until the end of her sick leave period. 2 x $44 = $88.

47) I accept Dr Chiang's view that further treatment is unnecessary. There will be no award for future medical expenses, beyond the end of December.

48) Her pre-trial travelling expenses, buses and MTR for the most part, not taxis, have been explained and are reasonable $6,626.

49) She claims hairdressing expenses. I have accepted Dr Chiang's opinion of her condition and also note that her husband is at home and could presumably help if needed, despite her protestations to the contrary. This claim is disallowed.

50) She claims that she needs to employ a domestic helper. In view of Dr Chiang's findings and the availability of her husband, her claim is not made out and is disallowed.

Summary of quantum

PSLA	$360,000
Pre-trial loss of earnings	$474,457
Future loss of earnings	$697,032
Loss of MPF	$45,592
Special damages	$43,558
	$1,620,639 ========

51) Credit must be given for the $600,422.06 Employees' Compensation award already received.

52) Interest will be awarded at 2% per annum for PSLA from the date of writ to date of judgment. Interest on pre-trial loss of earnings and for special damages will be awarded at half judgment rate from the date of the accident to the date of judgment.

Costs

53) I make an order nisi that the defendant bear the costs of the plaintiff, to be taxed if not agreed, and that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.