Wong Lai Ching v. The Great Eagle Properties Management Co, Ltd

DCPI 930/2015

[2019] HKDC 558

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 930 OF 2015

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JUDGMENT

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Introduction

1.Madam Wong brought this action against The Great Eagle Properties Management Company, Limited (“the Company”), her former employer, to make a claim for damages for the personal injuries she allegedly sustained in the course of her employment working as a lift attendant.

2.The Company denies both liability and quantum.

3.The incident took place on 9 August 2012 at about 1555 hours inside a goods lift (“the Lift”) at Phase 2 of Kingsford Industrial Building (“the Building”). Madam Wong was all by herself when she worked with the metal folding gate of the goods lift and allegedly hurt her waist and her back. 

4.The major issues in these proceedings include a question of fact as to how Madam Wong hurt her back inside the Lift and the exact extent of her purported injuries, hence the quantum of damages recoverable.

Background facts

5.The following background facts are pleaded in the Statement of Claim and admitted by the Company in the Defence.

6.Madam Wong was 53 years old at the time of the incident. The Company, carrying on its business of building management in Hong Kong, is the management company of the Building at the material time.

7.The Building is located in Kwai Chung, New Territories. There are altogether seven lifts in the Building. Only one of them is a passenger lift and all the others, including the Lift, are goods lifts. The Company employed Madam Wong as a lift attendant manning the goods lifts.  

8.To understand Madam Wong’s account of the incident, it is necessary to give a brief introduction of the operation of such goods lifts in the Building and the job duties of Madam Wong.   

9.The Lift, as with all other goods lifts, has a lift entrance with a metal gate on the outside of the Lift on each floor (“the External Gate”) together with a folding metal gate (“the Folding Gate”) inside the Lift. Both the External Gate and the Folding Gate have to be opened and closed manually for passengers and goods to go in and out of the Lift.

10.The Lift would only start to go from one floor to another when both of the External Gate and the Folding Gate are firmly closed. If either the External Gate or the Folding Gate is not closed completely, the Lift would remain stationary on a particular floor.

11.I should add that for the External Gate on each floor, it suffices to be pulled to the left side of the lift entrance. For the Folding Gate, it has to be tightly locked. It has a locking rod on the side and there is a locking hole in the corresponding position on the left side of the entrance of the Lift. The Folding Gate is locked when it is pulled towards the left side of the Lift so that the locking rod and the locking hole click with each other. There is also a rail laid horizontally on the floor at the outermost of the Lift for the Folding Gate to slide towards or away from the lock.

12.As a lift attendant, the duties of Madam Wong included the control of the operation of the Lift by opening and closing of both the External Gate and the Folding Gate manually. She had to from time to time follow the instructions from the control room of the Building. She might be notified that the External Gate on a particular floor or the Folding Gate of other good lifts were not completely closed thereby rendering the Lift and other good lifts unable to function properly. Upon receiving such notifications, Madam Wong had to use the staircases to go to the particular floor to close the External Gate or the Folding Gate (as the case may be) of a stationary goods lift to enable it to leave the floor and resume service. There are altogether twenty-five floors in the Building.

13.The Company accepts that it owed Madam Wong an employer’s duty of care and statutory duties under the Occupational Safety and Health Ordinance, Cap. 509 (“the OSHO”) and the Occupational Safety and Health Regulations, Cap. 509A (“the OSHR”).

14.It further accepts that the duties of Madam Wong fell within the meaning of “Manual Handling Operations” under the OSHO and OSHR and the Building was within the meaning of a workplace for Madam Wong under the OSHO and OSHR.

Liability issue

Madam Wong’s pleaded case of the incident

15.The account given by Madam Wong about the incident in her pleading is as follows.

16.Some transportation workers had entered the Building on the ground floor to deliver some goods to the 25^th floor. They went to the Lift and she closed the External Gate and the Folding Gate to enable the Lift to ascend to the 25^th floor.

17.However, on that occasion, Madam Wong found the Folding Gate to be extremely heavy, rusted over and deformed. She found it extremely difficult to lock the Folding Gate as a result. When she attempted to push the Folding Gate with great force, she sprained her waist and felt great pain in her back.

18.Madam Wong says that the accident was caused by the negligence and/or breach of statutory duties under the OSHO, the OSHR and/or the breach of the employer’s duty of care or certain implied terms of the employment contract. Before my adjudication of the validity of Madam Wong’s pleaded case in light of her evidence, I do not think that it is necessary to set out the alleged breaches and the alleged implied terms of the employment contract, to which the defence does not agree.

Madam Wong’s evidence in respect of the incident

19.In her witness statement, Madam Wong gave the following account of the incident:

7.   意外發生在2012年8月9日下午3:55 p.m.剛午飯完畢,當時有貨櫃車抵達及出貨中,該運輸工人拆貨後要運上25/F,期間他們佔用了2部貨𨋢的第6, 7號,我需要跟隨貨𨋢上落幫手,不斷輪流睇他們開關兩度摺閘𨋢門。當我操作約1小時後直至上述意外時間，我在G/F 操作第6號𨋢時，𨋢內已擺放有2卡板貨物，於是我便站在𨋢內，再用力將閘門由右拉向左方關上。本身位於摺閘門中央約4呎（高）位置，有一條約4吋（長）的橫向鐵棒，我必須拉動閘門將鐵棒卡入門柱的孔位內，電梯才可開動。但由於閘門很重，推動摺門時我要很大力拉動鐵閘並對齊才可將鐵棒插入孔內拍下，由於長期不斷開關令閘門形狀已經變形及歪，加上鐵閘有生銹現象，因此未能每次可準確地將鐵棒插入孔內。

8.   當時我在推動摺閘關門時，摺閘門的鐵棒不能蝕入門柱孔內並即時反彈開，我衹好再次用力推閘拍入時腰部突然一痛,我整個人繼而不能郁動。…”

20.I now turn to her oral testimony at trial. First, Mr Ho, for the Company, referred to Madam Wong during cross-examination a statement written by an adjuster dated 17 October 2012 (“the Statement”). The adjuster produced the Statement after he had an interview with Madam Wong. Though there is a statement of truth in the Statement and Madam Wong was supposed to sign the same, her signature is nowhere to be seen.

21.Mr Ho, in particular, relies on the following part of the Statement purportedly narrated by Madam Wong to the adjuster as her account of the incident:

“我首先拉埋𨋢口大堂果度門，我以雙手捉住度門嘅垂直門邊，由我右手邊拉去左手邊，當我拉住度門去到左手邊，我要將度門嘅扣扣落門框，點知我嘗試扣咗好幾次都扣唔到，跟住度門就有少許反彈，度門嘅反彈力令我條腰拉親…”

22.Mr Ho pointed out three differences in the two accounts respectively given in her witness statement and the Statement so as to attack her credibility. Mr Ho managed to get Madam Wong to agree, under cross-examination, that the Statement accurately reflected what she had told the adjuster during the interview despite her earlier evidence that the adjuster might have made a wrong record of her account.

23.I refuse to give any weight on the Statement. The adjuster should have been asked to give evidence on the Statement if its content is to be relied on. It is unreasonable to expect Madam Wong to recall what had transpired in the interview conducted a few years ago and her confirmation given under cross-examination cannot be reliable.

24.More pertinent should be her following testimony. She first told this court that prior to the incident, she had repeated the acts of opening and closing the two gates of the goods lifts including the Lift for more than five hundred times. The Folding Gate was not particularly heavy on the day of the incident. She usually pushed the Folding Gate(s) towards the left side of the Lift with force and then released her hands so that its locking rod would go straight into the locking hole with its momentum.

25.On that particular occasion, in order to close the Folding Gate, Madam Wong as usual pushed it towards the left side of the Lift with force. Then she released her hands off the Folding Gate to let it slide with its momentum and slam shut. However, the Folding Gate rebounded after touching the left side instead of being locked. When it rebounded by about 9 inches away from the left side, Madam Wong intended to prevent it from rebounding further and push it back to the left side. Thus, she laid her hands on the Folding Gate. Once she did this, she felt numbness on her back and got injured.

26.I accept her oral evidence as to how the incident happened. Her account was logical and credible.

27.However, this account does not support her pleaded case. In her pleaded case, the focus is on the difficulty in locking the Folding Gate due to its weight, its rusty condition and deformity thereby necessitating Madam Wong’s application of her extra force and this caused her waist and back injuries.   

28.The clear evidence is that Madam Wong was able to push the Folding Gate to reach the left side of the Lift despite its weight and the alleged rusty condition and deformity. It could even rebound by 9 inches. She did not injure herself in the process by over asserting herself as alleged in her pleading. The weight and the alleged rusty condition of the Lift had little bearing on the incident.

29.I am not satisfied and cannot conclude on the evidence that, on a balance of probabilities, the rebound was due to the alleged deformity of the lock. It is not the pleaded case in any event and it was not so suggested in the evidence too. If the rebound was about 9 inches, the Folding Gate should have slammed against the left side of the Lift with some force. Even if the lock was in a good working condition, the Folding Gate might not slam shut and instead its rebound was not improbable.

30.In the circumstances, I conclude that Madam Wong did not hurt herself because of the weight, alleged rusty condition and deformity of the Folding Gate. She failed to prove her pleaded case with her evidence. I need not go through the alleged breaches of the statutory and common law duties of the Company since the underpinning factual basis has gone. Madam Wong’s claim must be dismissed.

31.For completeness, I would also hold that the Folding Gate had no defect or deformity at the material times.

32.It is remarkable that Mr Wong who is the witness of Madam Wong agreed that he could open and close the Folding Gate on his own without difficulty despite his advanced age (77). He did not complain about any deformity of the Lift. Mr Leung, a former lift attendant of the Company leaving in 2012, made no mention about that in his evidence as well.

33.Madam Wong did not say that she had made any complaint about the condition of the Folding Gate and/or the Gate to her supervisor, Mr Yip, at all. On her evidence, in or about March and April 2012, she only complained to Mr Yip that she had to go up and down the Building to different floors to open the gates of the goods lifts and she found this very tough. It would be convenient for her to make a complaint about the condition of the gates on that occasion if she had a genuine concern about their condition posing such problems in her daily work. I cannot believe that she had such problems at all.

34.Lastly, I accept the defence evidence that the Lift has been well maintained by Chevalier and there could not be any deformity of the Lift. I do not accept the allegation that the Company concealed the maintenance record in respect of the Lift.

35.On the other hand, I agree with Mr Ho’s submission that the lack of training or specific instructions did not in any way contribute to the incident. The operation of the External Gate and the Folding Gate is indeed a simple task and requires no training and specific instructions. Madam Wong’s injuries were not sustained in the course of closing the Folding Gate as explained above. Prior to the incident, Madam Wong had ample experience in the operation of the Lift and she did not experience any difficulty because of the lack of training or specific instructions.

36.In the premises, Madam Wong’s pleaded case must be rejected and on the issue of liability, I find against her.

Quantum

37.I proceed to assess the quantum of damages in case I were wrong on the issue of liability.

38.According to the medical report of Accident & Emergency Department (“A & E”) of Princess Margaret Hospital (“PMH”) dated 11 November 2015, Madam Wong was admitted by ambulance to A & E of PMH at 1644 hours on 9 August 2012. She complained of low back pain after pulling the metal gate of a lift.

39.On examination, there were tenderness over lower back region and there was no focal neurological sign. X-ray of lumbosacral spine did not reveal any acute bony fracture. 

40.Madam Wong was referred to the Orthopaedics and Traumatology Department for further management. She was also referred to Psychiatric Clinic of Kwai Chung Hospital in view of her complaint about her depressive mood.

Pain, suffering and loss of amenities (“PSLA”)

41.Ms Lee, for Madam Wong, urges this court to take into account the following matters in the assessment PSLA:

i.   Madam Wong had soft tissue injury with detected L3/4 to L5/S1 intervertebral discs desiccated with disc extrusion at L3/4, L4/5 and L5/S1 impinging on the thecal sac without nerve root compression, and there was an incidental finding of small haemangioma in the L4 vertebral body.

ii.   She was prescribed analgesic on discharge.

iii.   She was given sick leave from 9^th August 2012 to 26^th September 2014 (481 days).

iv.   She was hospitalized for 8 days.  After discharge, he has been attending regular treatment and follow-ups at the O&T Department; Pain Clinic; Physiotherapy Department and Occupational Department of Princess Margaret Hospital.

v.   She has been suffering from persistent lower back pain and reduction and limitation of range of motion of the lumbar spine; left leg numbness, pain and reduction of movement on exertion and flexion of lumbar spine since the Accident.

vi.   After four years of the Accident, she has reached MMI and no further treatment would significantly improve her condition.

vii.   There is no wasting and deformity of lower limbs.

viii.   She suffers from 2.5 to 3% of impairment of functioning on whole person grounds, which is within the range of minimal limitation in the performance of activities in daily life.

ix.   She suffers a 2.5 to 3% loss of permanent earning capacity as assessed by Dr Tio.

x.   She continues to suffer from mild degree of residual back pain and stiffness, pain radiating to left calf.  She has poor mood and poor sleep.

42.Mr Ho invites the attention of this court to the surveillance evidence of Madam Wong’s activities in November and December 2012 and August and December 2013. Madam Wong was observed by Dr Tio to be able to walk unaided with ease. No severe limitation of her activities was observed as well.

43.Further, Dr Tio opines that Madam Wong is likely to suffer like soft tissue injury only and the discs desiccation at her spine was a degenerative feature.

44.I agree with Mr Ho that there is no evidence to prove the causal link between the alleged psychiatric symptoms and the incident. I am not persuaded that Madam Wong has suffered any psychiatric problems arising from the incident.

45.Mr Ho helpfully refers to me the following cases involving soft tissue injuries: Tamang Udas v Global Sunny Engineering Ltd, unreported, HCPI 732/2011, 7.1.2013, Yip Mau Kei v Wong Kam Tim, unreported, DCPI 1905/2013, 10.2.2015, Yip Kwok Shing v Fung Chau Tim, unreported, DCPI 2627, 26.6.2017. In light of these authorities, I am persuaded that the appropriate amount for PSLA in the present case should be HK$90,000.

Pre-trial Loss of Earnings

46.Madam Wong’s monthly salary at the time of the incident was HK$7,450 and in 2013 it was increased to HK$7,860.

47.I accept the evidence of Dr Tio that Madam Wong should be entitled to 12 months’ sick leave only despite the sick leave certificates that she had obtained. She has in my view exaggerated her injuries in light of the surveillance evidence.

48.Moreover, given the opinion of Dr Tio that Madam Wong may need to take a break from her work from time to time, I would allow her an additional month of sick leave.

49.I would allow Madam Wong HK$(7,450 x 4.66 + 7,860 x 8.33) x 1.05 as her pre-trial loss of earnings plus MPF, i.e. HK$105,200.

Future Loss of Earnings

50.As stated above, I accept the evidence of Dr Tio and the submissions of Mr Ho that Madam Wong is a malinger and her own evidence of the injuries is not reliable. I cannot accept that she is unable to return her pre-accident job.

51.Accordingly, I refuse to allow any damages under this head.

Loss of Earning Capacity

52.Madam Wong claims a sum of HK$23,580 as her loss of earning capacity.

53.Given my conclusion that she can return to her pre-accident job, I cannot accept that there is a substantial risk that Madam Wong will at some time before the end of her working life lose her job and be thrown onto the market in which she is disadvantaged.

54.In the premises, I do not find an award for loss of earning capacity to be appropriate in this case.

Special Damages

55.Madam Wong claims a total sum of HK$22,677.5 as special damages. This sum represents the total amount which Madam Wong spent for her medical expenses, travelling expenses and tonic food expenses. The actual amount was not challenged by way of cross-examination.

56.Mr Ho argues that Madam Wong can only recover those expenses incurred within the 12 months after the incident since Dr Tio opined that Madam Wong should be entitled to 12 months’ sick leave.

57.Dr Tio in fact opines that the appropriate sick leave period should be 12 months to 15 months. Further, I do not think any of such expenses should be confined to the sick leave period.

58.nbsp;   Thus, I allow Madam Wong’s claim in full under this head.

59.Madam Wong would be entitled to interest at 2% per annum on PSLA from the date of the service of the Writ to the date of judgment and 4% per annum (half judgment rate) on special damages from the date of the incident to the date of judgment.

60.To conclude, if judgment were to be entered against the Company, Madam Wong would be entitled to the following amount as damages:

(1) PSLA	HK$90,000
(2) Pre-trial loss of earnings plus MPF	HK$105,200
(3) Special damages	HK$22,677.5
Less Employees’ Compensation paid	HK$105,866.13
Total:	HK$112,011.00

Conclusion and Dispositions

61.For the reasons given above, I conclude that Madam Wong failed to establish her pleaded case against the Company and her claim must be dismissed accordingly.

62.Had Madam Wong been entitled to judgment, she would have been entitled to the total sum of HK$112,011.00 plus interest.

63.There is no reason why costs should not follow the event. I make an order nisi that Madam Wong should pay the costs of the Company of this action including all costs previously reserved if any, to be taxed if not agreed, with certificate for counsel.

64.I further order that Madam Wong’s own costs be taxed in accordance with the Legal Aid Regulations.

65.Lastly, I thank both Ms Lee and Mr Ho for their helpful assistance rendered to this court.

Ms Amanda W Y Lee instructed by B Mak & Co. assigned by Director of Legal Aid, for the plaintiff

Mr Leon Ho instructed by Au & Associates, for the defendant