KWAN YIM KWAN, PEGGY v. NAMKUNG PROMOTIONS (WORLDWIDE) LTD

HCPI 938/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 938 OF 2004

____________

____________

__________________________________

REASONS  FOR  JUDGMENT

__________________________________

1.  At the conclusion of the trial I dismissed the plaintiff’s claim and ordered her to pay the defendant’s costs as taxed or agreed.  These are my reasons.

Liability

2.  The defendant company is based in the United States. It operates a small office in Hong Kong which is comprised of one large general area adjacent to which are four individual rooms:  the plaintiff sat at a desk in the general area.  It is in the business or supplying small gifts of the type inserted into packets of cereal.

3.  The plaintiff was employed, in January 2001, as “... the secretary to help the Engineering Manager in office administration, accounting, new vender’s [sic] sourcing and office general work.”  At the time of her employment the engineering manager was one So.  He left the defendant’s employ in about April 2001.  He was replaced in July 2001 by Mr Luk Wan Fung, whose title became Senior Engineering Manager.  In the intervening period the plaintiff was supervised by other employees of the company during visits.

4.  The plaintiff’s claim asserts that she was injured on “…29 October 2001 when, in the course of her employment, [she] was taking a paper box under her desk in the side office, the boxes under her desk collapsed and one of the boxes fell and hit her right eye.”  The statement of claim asserts that the defendant was in breach of an implied or express term of the contract of employment to take all reasonable precautions for her safety, in the alternative that the defendant was in breach of its statutory duty under the Occupier’s Liability Ordinance, Cap. 314.

5.  The basis of her claim is that stored beneath her desk were numerous items including some sheets of cardboard which were to be assembled into boxes as and when needed.  She was in the course of attempting to obtain some of those cardboard sheets on the instructions of her superior when the injury occurred.  The defendant has placed in issue the fact of as well as the cause of the injury - understandably in this matter. 

6.  Mr Luk accepts that when he arrived at the office that day, the plaintiff told him about her injury, that her eye was sore and that she wished to go to hospital.  He allowed her to do so.  It seems she went to Princess Margaret Hospital where she was examined and found to have what is described as “Right eye injury”.  She was recommended for three days sick leave.  I find as a fact that she did sustain that injury.  It was described by a medical practitioner whom she consulted the following day as “right corneal abrasion”.  I accept that.  That injury healed but she developed recurrent corneal erosions syndrome in that eye, which I accept was as a consequence of the injury.

7.  Whilst I accept that the plaintiff does appear to have sustained an injury to her eye on the day in question she does not satisfy me that it occurred in the manner in which she claims.  There is no credible evidence before me to show, even on a balance of probabilities, how she sustained the injury.  The plaintiff was a singularly unimpressive witness. 

8.  In her witness statement, which she adopted as her evidence in chief, the plaintiff said that the incident occurred in this fashion:

“The sundry goods, sample and the ten-odd unfolded boxes for the sending of samples were placed under the desk, one on top of the other in a disorderly manner... many sundry goods of the company were put on the paper box as a support in order to keep the balance under my desk.  When I was moving away sundry goods and documents of the company one by one slowly to get the unfolded boxes, suddenly the paper boxes for the sending of samples collapsed in a disorderly manner like dominoes.  I tried to dodge, but I failed and as a result my right eye was hit by the paper box coming towards me.”

9.  That description was at substantial variance with her testimony in court in which she said that she had finished removing all of the items from where they were stored beneath her desk, including a set of filing drawers, to gain access to the cardboard sheets which were standing on their edge against the inside rear of her desk.  Having removed the items, the cardboard sheets were then supported simply by a wastepaper basket.  Without her having touched them and for no apparent reason, they toppled forwards.  She was kneeling at the time so as to reach beneath her desk and attempted unsuccessfully to stand up to avoid the toppling cardboard sheets. 

10.  When she was cross-examined she indicated that her head had been at more or less the level of the top of the desk when she was kneeling down.  It was at this stage that she claimed that, when attempting to stand up, she had slipped on the carpet which she had previously described in her witness statement as “Since I had been employed, I found the carpet was very dirty, wet and slippery.”  There is, of course, no suggestion in her witness statement that she had slipped.  When she was pressed she indicated that, instead of slipping, she may have lost her balance.  Pressed further, she claimed that she had both slipped and lost her balance.  She disputed the suggestion that, if this were true, she would have fallen backwards saying that, in fact, she had fallen forwards towards the cardboard sheets.

11.  I refer to reports prepared by Dr Paul Cheung, a specialist in ophthalmology, as they demonstrate an established and ongoing lack of candour on the part of the plaintiff.  The plaintiff was examined by Dr Cheung on 9 December 2003, some three years after the incident.  Dr Cheung agreed with the previous diagnosis.  He indicated that discomfort caused by the condition tends to recur and may persist for many years.  Treatment is by application of lubricating eye drops and eye ointment.  Although she had reduced visual acuity, this was minor and pre-existing.

12.  He expressed the opinion that:

“Despite the presence of the minor attacks, she should be able to take up his [sic] pre-accident job as a secretary.  As for the enjoyment of life and the ability to cope socially, Ms Kwan may be mildly affected as she may have to stay home to rest when the discomfort in her right eye becomes severe.”

13.  Dr Cheung went on to say that it was unlikely that the condition would heal by itself and suggested particular surgery, referred to in its abbreviated form as “PTK”.  He expressed the opinion that if that surgery were successful, as was usually the case, full recovery would be possible in which event she would not suffer any permanent impairment of her visual system.

14.  Dr Cheung examined the plaintiff again, at the joint request of the parties, on 4 April 2005.  It is worth noting several passages from Dr Cheung’s report:

“She complained of pain and marked discomfort in her eyes.  There was photophobia with irritation and occasional watering.  There was severe pain in her right eye every night whenever she woke up and opened her eye in the middle of the night, the pain would usually last about 40 minutes.  There was also severe pain in her right eye whenever she opened her eye in the morning.  There was also mild pain in the left eye in similar situations. 

She also complained of severe watering from her eyes if she worked on computer for over 10 minutes.  Her eyes got so tired that she needed to go to sleep if she had read for about 30 to 40 minutes.

Ms Kwan also alleged that the pain in her eyes had caused shortness of breath and now she cannot walk more than five to six steps upstairs (not flights of stairs) before she had shortness of breath and needed to rest.  There was also severe headache and dizziness every day.  She had also become bad tempered because of the problem in her eyes.

...

After I examined her in December 2003, Ms Kwan’s condition had changed and she complained of progressive deterioration in the condition in both her eyes.

...

... it was apparent that the main problem with Ms Kwan’s eyes was the dryness in both eyes....

... in my opinion in the eight months of follow up... the main condition was conjunctivitis duty dryness of both eyes, not recurrent corneal erosion.

...

when I examined Ms Kwan on 4 April 2005 she stated that the pain was severe as usual on that day...

Ms Kwan’s complaint of severe pain in both eyes was not supported by the medical findings... However, it is still possible that there could have been occasional pain and discomfort in her right eye due to minor attacks of recurrent corneal erosion.

...

The problem of recurrent corneal erosion is now only a minor one, PTK is not required.  PTK is indicated only if there are genuine repeated severe attacks of corneal erosion.”

15.  To return to the incident, there is no doubt that, on the day in question, a large number of items were stored beneath her desk:  that is not only her evidence, which I would not accept were it unsupported, but it is also the evidence of each of the two witnesses called on behalf the defendant, Mr Luk and Ms Leung, as well as being apparent from a photograph taken by Mr Luk shortly after the incident is alleged to have occurred. 

16.  It was the plaintiff’s case, in short, that:

-	she had been instructed by Mr Luk to obtain the cardboard sheets from a courier company operating from premises on the same floor to ensure a continuous supply;
-	those items had been stored beneath their desk on the express directions of Mr Luk;
-	she had protested;
-	she had asked on “10 to 20 occasions” that alternative arrangements be made for the storage but Mr Luk had always claimed to be too busy, making vague promises that he would attend to the issue later;
-	there was no room in a designated storeroom for the cardboard sheets to be stored; and
-	she had sought but been refused permission to store them in a room adjacent to the storeroom which was used, from time to time, by visiting colleagues.

17.  Each of these issues was emphatically and convincingly denied by Mr Luk.  Indeed, it was his evidence that quite the contrary was true in that he had repeatedly told the plaintiff to move items from under her desk:  she had only partly complied with his instructions.  Some emphasis was placed on the fact that he had “failed” to give the plaintiff written warnings about her failure to comply with his requests:  given that they were the only two persons in the office, this is a fanciful suggestion.  It was his evidence, which I accept, that he was not aware of the cardboard sheets concealed behind the other items:  the photograph which he took soon after the incident demonstrates that they likely would have been concealed from view.

18.  The plaintiff describes, in her witness statement/evidence in chief, the items under her desk as “…sundry goods, samples, about ten to twenty unfolded paper boxes, paper cartons and documents of the company, which were placed there by Mr Luk.”  I accept Mr Luk’s evidence that he had not done so.  Only Mr Luk and the plaintiff worked in the premises.  I am satisfied that those items were placed there by the plaintiff but not on Mr Luk’s instructions.

19.  Mr Luk is no longer employed by the defendant.  There can be no sensible suggestion that he is biased in its favour.  He gave his evidence in a perfectly straightforward and creditworthy manner.  I accept it in its entirety.

20.  Ms Leung only took up employment with the defendant in December 2001, well after the accident had happened:  hence her evidence is only of limited relevance.  I am satisfied that she was a truthful witness.  The submission that because she is still employed by the defendant she is biased in her evidence has no foundation.

21.  Her evidence was that there was still, even at the stage she was employed, an accumulation of items beneath the plaintiff’s desk.  Shortly after Ms Leung was employed by the defendant, the plaintiff resigned her employment.  They worked together only for about one week.  Once the plaintiff had departed, she tidied up the area beneath the plaintiff’s desk.  Many of the items were parcels which contained company documents:  she was able to file those documents in their proper place, the filing cabinet.  This supports Mr Luk’s evidence:  it is inherently improbable that, as the person in overall charge of the office, he would himself have placed, or have instructed the plaintiff to place, company documents in parcels beneath the plaintiff’s desk when there was a perfectly adequate filing system available.

22.  It is further Ms Leung’s evidence, contrary to that of the plaintiff, that when she sought boxes from the same courier company they were always immediately available thus negating any suggestion that there was a necessity to accumulate and hoard boxes for future use – which accords with Mr Luk’s evidence, that that was the position during the period of the plaintiff’s employment.

23.  There are any number of other areas of the plaintiff’s evidence which are simply unbelievable: as examples, her claim that she was never allowed to perform any tasks, even to the stage of touching documents, without permission from a senior; her further claim that the situation had been the same in her previous job, where, similarly, she had never acted on her own initiative; her assertion that she had made complaints both to Mr So and Mr Luk about the working environment which were dismissed; her evidence that Mr Luk had been the person who supervised and instructed the cleaning worker, not she.

24.  There are any number of other areas of the plaintiff’s evidence which are contradicted by the evidence of Mr Luk and Ms Leung: as examples, her claim that the storeroom was so cluttered that it was impossible even to store a few cardboard sheets; her assertion that the refrigerator in the storeroom was not in use.

25.  There is one other matter which is relevant.  After her return to work in December 2001 the plaintiff was offered the option of resigning her employment, the alternative being that she would be dismissed.  She resigned.  She was given a cheque, which, to her knowledge, had to come from and would be supported by funds from the USA to pay what she was owed.  It was dishonoured twice, apparently because of the delay in transferring funds.  All this is common cause.  The plaintiff was, understandably, discomforted by this. 

26.  She had retained in her possession blank cheques of the defendant.  She forged a signature on five of those cheques and obtained funds.  In due course, she was charged with a criminal offence.  She repaid the funds obtained by her.  She served a period of five months imprisonment.  It was evident during the trial that the plaintiff bears animosity towards the defendant.

27.  There has been a suggestion made on behalf on the plaintiff that the fact that Mr Luk had told her to tidy up the area beneath her desk showed his appreciation of the danger that existed there, that having that appreciation the defendant, through him, was negligent in not taking positive steps to eradicate it.  I have already dealt with what he says about his requests to the plaintiff to tidy up.  I accept his evidence that what he was concerned about was tidiness, not danger.

28.  The duty of an employer is well-known.  There must be a foreseeable risk of injury.  Its obligation is to take reasonable care to provide a safe system of work and to see that it is followed.  It is well settled that the employer must act reasonably in all the circumstances which include, inter alia, the nature of the task.  In order to succeed a plaintiff bears the onus of showing that the defendant failed to do so.  The plaintiff in this matter has singularly failed to discharge that onus.

Quantum

29.  I believe that this matter should not be left without two comments on the issue of quantum, although I have no intention of assessing it.

30.  Firstly, there is the issue of the amount of the plaintiff’s claim, especially that for future loss of earnings.  It was, conservatively described, fanciful.  This was, on any realistic assessment of it, a minor injury.  The plaintiff’s own medical practitioner had indicated, in 2003 before these proceedings were instituted, that there was no reason why she could not return to her previous job even with the continuing corneal erosion which, he also indicated, could be successfully treated.  Despite this, an allegation was made that the plaintiff was unable to pursue limited studies which she had undertaken, had thus been deprived of a qualifying as a form of accountant and thus suffered a loss of future income amounting to almost $6 million.  This resulted in an aggregate claim of some $7.2 million.

31.  On everything that was placed before me for the purposes of this trial there was not a scintilla of evidence to justify such a claim.  Optimistic assessments of amounts of damages in claims are nothing new:  fortunately, few reach these heights.  They do a disserve to a plaintiff by exciting unrealistic hopes.  That is especially so in the present case, given the background between the parties.

32.  Secondly, on the first day of trial the amount of the claim was reduced – the claim for future loss of earnings dropping from almost $6 million to $360,000.00, reducing the aggregate claim to a little over $800,000.00 or a reduction of some 88% of the original claim.  The basis of the claim for future loss of earnings was based on a calculation of loss at a rate said to be $2,500.00 per month.  This was an entirely arbitrary figure without any basis in fact or reality.

33.  It may be trite, but it obviously needs repeating, that a plaintiff is entitled to be compensated for such damages as he or she is able to prove to the court have been suffered.  It is wholly unacceptable for a claim to be presented in this fashion.