Lam Wing Yee v. City Super Ltd

HCPI 523/2016

[2019] HKCFI 2507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 523 OF 2016

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BETWEEN

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JUDGMENT

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1.This is the trial of the Plaintiff’s action herein against the Defendant for damages arising from the back injuries she sustained in a work accident involving manual handling, which befell her on 21 June 2013 (the “Accident”).

THE PLAINTIFF

2.The Plaintiff was born in Hong Kong on 15 June 1987. She received education up to Form 7. Apparently, after graduation in 2007, she worked as a customer service staff in a shopping mall for three months.

3.Thereafter, she worked for a few years in various companies as a door-to-door salesperson for telecommunication or cable television services. In early September 2012, the Plaintiff was in-between jobs.

4.By a contract dated 4 September 2012, she was employed as a “Sales Assistant” by the Defendant. On 6 September 2012, she started work at the Defendant’s supermarket at Times Square in Causeway Bay (the “Supermarket”).

5.Despite her job title, she was in fact not involved in sales. Instead, for 5 ½ days per week, she worked from midnight to 10 am on the following day to replenish and tidy-up the goods displayed on the shelves of the Supermarket. She earned a basic salary of HK$7,400 per month plus various allowances.

6.Since 1 November 2012, she secured an additional job with HKT Services Limited as a salesperson of telecommunication services earning a guaranteed pay of HK$6,000 per month plus commission, bonus and various allowances. She worked from about noon to 10 pm in this job.

7.Since early 2013, the Plaintiff has moved to and lived in a new public rental housing unit in Shek Kip Mei with her younger sister and mother. She has other older half-siblings, who are married or independent.

8.It is not disputed that about one year prior to the Accident (ie mid-2012), the Plaintiff had incurred debts owed to various banks to the tune of some HK$100,000. She explained that she spent the borrowed money on shopping, clothing items and renovation of the new home.

9.Remarkably, the Plaintiff attained black belt in both Karate and Taekwondo winning many trophies in the past. She was a member of the Hong Kong Karate Team and a qualified coach in Taekwondo. As observed in Court, she is a well-built person.

THE ACCIDENT

10.The Accident was investigated by the Labour Department. A declaration was obtained from the Plaintiff on 19 November 2013 (the “Declaration”) and an Accident Investigation Report was compiled on or about 6 December 2013 (the “AIR”).

11.The Plaintiff is the only witness giving oral evidence. It is not disputed that she attended work at the Supermarket as usual around midnight on 20 June 2013 and she finished work at about 10:00 am on the following day (ie 21 June 2013). She worked with a team of four to five co-workers under the supervision of one “Ah Fey”.

12.They were responsible for disassembling some 10 pallets of various types of goods to replenish the shelves of the Supermarket. Each pallet of goods would be labelled or marked with the following code as appropriate:

(a) “JC” referring to Japanese snacks (such as cakes and potato chips);

(b) “JR” referring to Japanese soy sauce, ramen and southeast Asian seasoning;

(c) “GW” referring to rice, vinegar, oil, sugar, cereal, flour, spaghetti, canned food, etc.

(d) “GA” referring to rice, baby food (excluding milk powder);

(e) “CT” referring to coffee, baby food and American potato chips; and

(f) “BB” referring to beverages of various sorts.

13.The pallets of goods were delivered from the Defendant’s warehouse to the Supermarket by logistics staff. Standardized plastic boxes belonging to the Defendant each measuring 2 feet (length) by 1.5 feet (width) by 1 feet (height) were used to hold loose items of goods by category, which were stacked onto the pallets also by category.

14.Where the goods came in cartons, they would be stacked on top of the plastic boxes in a pallet. To avoid dislodgement during transportation, each pallet of goods would be secured with plastic stretch films. The pallets of goods were delivered to and placed at an unloading area (the “Unloading Area”) near the service lift of Times Square just outside the shop space of the Supermarket.

15.In the main, the Supermarket was divided into different aisles with shelves on either side (see sketch attached to the Declaration). Due to constraint of space, the pallets could not be navigated around the shop premises, even with the use of a pallet jack.

16.Therefore, the goods in each pallet had to be disassembled at the Unloading Area, which entailed the following procedure:

(a) workers (like the Plaintiff) would work in pairs;

(b) the plastic film of the pallet would be removed by using a cutter;

(c) a flat trolley similar in size (in terms of length and width) as a standardized plastic box would be placed next to a pallet;

(d) an empty plastic box would be put on the flat trolley for the purpose of minimizing the need for workers to bend his or her back, while moving a load of goods in a plastic box from the pallet to the flat trolley;

(e) the worker(s) would check the content of the plastic box to be moved in order to assess its weight;

(f) a plastic box of goods would be moved by two workers (holding onto the grip on either end lengthwise) from the pallet and put on top of the empty plastic box placed on the flat trolley;

(g) where appropriate, another plastic box of goods might be stacked on top of the one referred to in (f) hereinabove;

(h) the workers would then move the flat trolley (with plastic box(es) in one stack as aforesaid) to the relevant shelf or shelves for replenishment.

17.The Plaintiff said she first worked from midnight to about 3:00 am, when she had a meal break. She then carried on until around 7:00 am with nothing untoward and the goods handled up to that point were of the “JC” and “JR” categories, which were not heavy.

18.At around 7:00 am, she was working in tandem with Madam Hung Ka Po (“Madam Hung”). Immediately before the Accident, they were about to move a plastic box of “GW” goods (the “Box”) from a pallet onto the empty box on a flat trolley. Upon opening the Box for inspection, she knew that it was a heavy piece. There is no dispute that the Box weighed about 20 to 30 kg.

19.Between the Plaintiff and Madam Hung, they moved the Box onto the empty box sitting on the flat trolley. The Plaintiff was holding the grips of the Box at one end and Madam Hung was holding the grips at the other end. Suddenly she felt pain in her back. Despite the pain, she continued with moving the Box from the pallet onto the flat trolley for fear that Madam Hung might get hurt if she had let go.

20.The Plaintiff claimed that Madam Hung also experienced pain in her back (see paragraph 8 of the Plaintiff’s Witness Statement and paragraph 3 of the Reply).  Therefore, they both took a rest inside the shop premises and then continued with the work until about 10 am. Before knocking off for the day, the Plaintiff told “Ah Fey” that they both had injured their back but he did not show any response.

21.According to the Declaration, the Plaintiff attended “Conduct Chinese Medicine Clinic” in Wanchai together with Madam Hung immediately after work on 21 June 2013 to see Dr Tsang Wing Yee, a Chinese Medicine Practitioner (“CMP”). It is however not clear from the evidence whether Madam Hung also received medical attention.

22.The Plaintiff alleged that she was diagnosed with back injury (see paragraph 8 of the Plaintiff’s Witness Statement) but the medical certificate issued by Dr Tsang (CMP) on 21 June 2013 only shows that the Plaintiff had “back pain” for which she was recommended 1 ½ days sick leave (from 21 June 2013 to 22 June 2013) and light duties. There is no mention of any work injury or accident.

THE PLAINTIFF’S CASE

23.The Plaintiff’s case is pleaded on the basis of negligence and/or breach of statutory duty and/or breach of contract of employment with following particulars (see paragraph 10 of the Statement of Claim):

“ (a) Failing to inform, advise, instruct and/or educate the Plaintiff of the danger and risk of injury of moving and/or lifting plastic boxes and/or heavy items with her female colleagues [Madam Hung];

(b) Failing to give the Plaintiff proper and adequate instructions, training and supervision on the safety method and procedure for carrying out her work and duties;

(c) Failing to supervise properly at all;

(d) Failing to provide or maintain a safe and proper system of work for the Plaintiff in carrying out her duties at the Supermarket in a safe and proper manner;

(e) Failing to provide a safe and/or proper system for the transport or movement of plastic boxes which were heavy in weight;

(f) Failing to ensure that there were sufficient warning signs and/or manpower to guard against danger created by the moving and/or lifting of heavy items or plastic boxes by two female workers [the Plaintiff and Madam Hung];

(g) Failing to instruct, arrange and supply sufficient manpower to assist the Plaintiff in carrying out her duties;

(h) Failing to take all reasonable care and/or precautions to ensure that the Plaintiff was reasonably safe while carrying out her duties at the Supermarket;

(i) Causing and/or permitting and/or allowing the Plaintiff to handle and/or move heavy items or plastic boxes without any proper aids or equipment and/or sufficient manpower;

(j) Failing to provide the Plaintiff with proper tools or equipment for moving and/or lifting heavy items or plastic boxes;

(k) Causing and/or permitting and/or allowing the Plaintiff to adopt an improper posture when she moved and/or lifted heavy items or plastic boxes, thus exposing the Plaintiff to risk of injury;

(l) Failing to assess a foreseeable risk that the Plaintiff might face by permitting and/or allowing her to move and/or lift heavy items or plastic boxes with her female colleague;

(m) Failing to tale all reasonable steps to prevent the Plaintiff from exposing to a danger and/or foreseeable risk of injury of which the Defendant knew or ought to have known; and

(n) In the premises, the Defendant is in breach of the implied terms of the contact of employment.”

24.Further, in paragraph 12 of the Statement of Claim, the Plaintiff prays in aid provisions under the Occupational Safety and Health Ordinance (Cap 509) and pleaded the following particulars:

“ (a) Failing to ensure, so far as reasonably practicable, the safety and health at work of the Plaintiff, contrary to Section 6(1) of the OSHO;

(b) Failing to provide or maintain a system of work that was, so far as reasonably practicable, safe and without risks to health to the Plaintiff, contrary to Section 6(2)(a) of OSHO;

(c) Failing to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health of all persons employed by the Defendant at the Supermarket in connection with the handling storage or transport of substances, contrary to Section 6(2)(b) of the OSHO;

(d) Failing to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of all persons employed at the Office [sic], contrary to Section 6(2)(c) of the OSHO;

(e) The Plaintiff repeats the particulars under the Particulars of Negligence and/or breach of contract of employment hereinabove.”

25.Notably, the Plaintiff has not pleaded any of the regulations specific to manual handling operation under Part VII of the Occupational Safety and Health Regulation (Cap 509A).

THE DEFENDANT’S CASE

26.Notwithstanding that interlocutory judgment has been entered by consent in the related Employee’s Compensation Application (DCEC 2235 of 2013) on 29 September 2014, the Defendant denies the occurrence of the Accident and seeks to put the Plaintiff to strict proof. The Defendant is entitled to take this stance by reason of the reservation set out in the Consent Order.

27.On pleadings, the Defendant takes the following positions:

(a) The Defendant has duly complied with all implied terms of contract of employment, which included the provision of a “safe system of work” but no particulars have been given (paragraph 5 of the Defence).

(b) The Defendant puts the Plaintiff to strict proof as to the occurrence of the Accident (paragraph 6 of the Defence) but it is averred that:

(i) the Defendant has assigned Madam Hung to lift the Box together with the Plaintiff;

(ii) at the time of the Accident, the Plaintiff “adopted an unsafe and improper posture while lifting the plastic [Box]” (emphasis added).

28.Mr Daniel K K Chan, for the Defendant, relies on the numerous discrepancies in the Plaintiff’s medical history to challenge the credibility of the Plaintiff’s evidence surrounding the Accident.

29.Further, Mr Chan argues that the Accident was not caused by the negligence or breach of statutory on the part of the Defendant but by the contributory negligence on the part of Plaintiff, inter alia, in adopting an unsafe or improper posture (see paragraph 8 of Defence cf Particulars of Negligence pleaded in paragraph 10(k) of the Statement of Claim).

30.In her Reply, the Plaintiff pleads that:

“ 4. Paragraph 6(b) of the Defence is denied. The Plaintiff avers that she did not adopt any unsafe or improper posture while lifting the [Box] …

5. Further or in the alternative, if the Plaintiff adopted an unsafe or improper posture while lifting the [Box], which is denied, it was due to the Defendant’s failing to provide the Plaintiff with proper training and supervision on the use of safe or proper posture in lifting heavy objects before the accident.” (emphasis added)

31.In short, the crux of the whole case lies in the way in which the Plaintiff actually lifted the Box together with Madam Hung. The Plaintiff denies that she adopted “an unsafe or improper posture” despite the positive and unqualified allegation of the Defendant on pleadings. The Plaintiff’s fallback position is that it is still the Defendant’s fault if she had adopted “an unsafe or improper posture” due to the lack of training, information, instruction and supervision.

THE LAW

32.It is trite that it is for the Plaintiff to plead and prove her case and that the occurrence of the Accident does not give rise to a presumption of negligence (see Tsang Chung Ming v Caritas–Hong Kong [2019] HKCFI 1035 (HCPI 794/2016, unreported), DHCJ M K Liu, 18 April 2019 (at paragraphs 10 – 13).

33.The burden of proof resting on the Plaintiff is not be confused with the provision under section 38 of the Occupational Safety and Health Ordinance (Cap 509), which reads as follows:

“ 38. Onus on defendant to prove certain matters

In proceedings for an offence against this Ordinance involving a failure—

(a) to comply with a requirement or an obligation that has to be complied with only in so far as it is practicable or reasonably practicable to do so; or

(b) to take steps, reasonable steps or reasonably practicable steps to comply with the requirement or obligation,

the onus is on the defendant to establish that compliance with the requirement or obligation was not practicable or was not reasonably practicable, or that steps, reasonable steps or reasonably practicable steps were taken to comply with the requirement or obligation.”

34.Although a degree of flexibility as to the details is possible, the starting position is that the Plaintiff should plead with sufficient particulars as to the “safe system of work” which the Defendant ought to have provided but failed to provide (see Ho Mui v Gammon (Hong Kong) Ltd [1975] HKLR 195).

35.In Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371, Bokhary PJ explained:

“ 31. The position, as I see it, is as follows. When considering whether an employer was in breach of his obligation to provide a safe system, it is relevant to see if the plaintiff manages to propose an acceptable alternative system. But even if the plaintiff does not manage to do so, the court is by no means precluded from nevertheless finding the employer in breach of that obligation. Anything less flexible would be an unwarranted fetter on proper judicial decision-making in an inherently fact-sensitive area.”

36.In Winter v Cardiff Rural District Council [1950] 1 All ER 819, Lord Oaksey said (at 822 – 823):

“ In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. … where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot.” (emphasis added)

37.In Smith v Austin Lifts Ltd [1959] 1 WLR 100, Viscount Simonds said (at 105):

“ I, turn, then, to the first respondents, the employers. … It was their duty to see that the place at which their workmen were to work was reasonably safe. That is a generalization which can only be applied after a consideration of what is in all the circumstances reasonable, and it is, I think, always important to bear in mind a principle emphasized in Winter v. Cardiff Rural District Council that there is a sphere in which it is reasonable to leave to a skilled workman the decision whether the difficulty that he encounters is one in which he needs help. I deprecate any tendency to treat the relation of employer and skilled workman as equivalent to that of a nurse and imbecile child. …” (emphasis added)

38.The obligations of an employer under the Occupational Safety and Health Ordinance (Cap 509) and the tort of negligence are co-extensive (see DHCJ Fung (as he then was) in Lam Wai Chi v Project Concern Hong Kong HCPI 78/2002 (unreported), 10 April 2003 at paragraph 48 citing Hawkes v London Borough of Southwark, Court of Appeal (Civil Division), unreported, 20 February 1998 and approved in Rashad Muhammad v Gurung Amrit Singh trading as Fewa Company & Anor CACV 165/2010 (unreported), 8 July 2011).

39.As to the assessment of credibility of witnesses, I respectfully adopt the approach enunciated by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009 (unreported), 8 April 2014 wherein it was said:

“ 77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36 – 37 (Bokhary PJ)) ….

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

‘ Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. …”

PROCEDURAL MANOEUVRE

40.A good deal of information can be gleaned from the AIR. Regrettably, neither the Plaintiff nor the Defendant saw fit to obtain an un-redacted version from the Labour Department. This is unsatisfactory.

41.It is unnecessary to repeat the admirable exposition of the law by Mr Justice Bharwaney in Chan Yim Wah Wallace v New World First Ferry Services Ltd HCPI 820/2013 (unreported), 8 May 2015 (at paragraph 83) that the account of an accident given by a witness to an investigation authority does not constitute personal data.

42.Further, where the name of a witness to an accident, which is personal data, is stated in a statement given by him to the investigation authority and such statement is used for the purpose of civil litigation arising from the accident, such use is either exempted by section 58(2) of the Personal Data (Privacy) Ordinance, Cap 486 or constitutes a use directly related to the initial purpose. Hence, there is no need to redact the name of the witness from his statement or any investigation report.

43.Lamentably, neither the Plaintiff’s nor the Defendant’s legal representatives appear to have addressed their mind to the unsatisfactory state of the version of the AIR in the trial bundle, which is so heavily redacted that it is not entirely helpful. The net effect is that crucial information is lost in the redaction.

44.Likewise, the black and white photocopies of the photographs attached to the Declaration and the AIR are barely legible. One would expect such defects to have been cured in advance before the trial.

45.More importantly, it is clear even from the redacted AIR that the Labour Department had interviewed Madam Hung and the supervisor, presumably Ah Fey, and other staff on duty at the Supermarket at the time of the Accident. It is likely that declarations have been taken from these other witnesses, which have either not been obtained from the Labour Department or included in the trial bundle.

46.For instance, in paragraph 19 of the AIR, despite the redaction, it seems tolerably clear that Madam Hung said to the Labour Department that she “had attended OSH [Occupational Safety and Health] training”.

47.In the circumstances, it is extraordinary that the Defendant did not call evidence from the Manager of the Supermarket or whosoever responsible for delivering OSH training to new employees such as the Plaintiff. Therefore, it is unclear what the OSH training exactly entailed apart from what was described by the Plaintiff in the Declaration.

48.Likewise, it is inexplicable that neither the Plaintiff nor the Defendant sought to call evidence from Madam Hung, who allegedly also sustained back injury in the Accident (see Reply at paragraph 3(b) and Declaration at p 5). It is unknown whether Madam Hung still works for the Defendant but there is no property in a witness.

49.On a different matter, the Plaintiff submitted a series of nine sick leave certificates after the Accident covering various dates from 29 June 2013 to 4 August 2013, which were issued by no less than six different clinics or doctors including CMPs. Remarkably, each of them initially omitted to mention the Plaintiff’s “back pain”.

50.It is most extraordinary that upon her written request on or about 27 September 2013, the originals of the nine sick leave certificates were returned to the Plaintiff. Sometime thereafter, nine original sick leave certificates covering the identical period were re-submitted to the Defendant, which had either been re-issued or amended in manuscripts by the relevant clinic or doctor to include “back pain” or “Lumbarpain” or “myalgia”.

51.The discrepancies in these nine sick leave certificates were heavily relied upon by the Defendant in an attempt to discredit the Plaintiff’s evidence as to the occurrence of the Accident. This is a subject matter covered in the Witness Statement of Wong Yau Lin (dated 24 October 2017), a supervisor of the Defendant in its Human Resources and Administration Department.

52.In his Opening Submission, Mr Chan informed the Court that Madam Wong would not be called to give oral evidence and the Defendant would be contented to rely on the underlying documents by way of hearsay.

53.Surprisingly, in light of the anticipated disputes arising from the discrepancies on the face of the nine sick leave certificates, neither the Plaintiff nor the Defendant saw fit to make or seek discovery of the contemporaneous medical notes maintained by the Plaintiff’s treating doctors.

54.The net effect is that relevant and cogent evidence, which ought to be readily available was not adduced before the Court. Nonetheless, it is not for the Court to second-guess the procedural manoeuvre, or tactical decisions rather, made by the Plaintiff and the Defendant in the conduct of their respective case.

LIABILITY

Finding of facts

55.As I understand, Mr Samuel Yip, for the Plaintiff, takes the stance that since the Defendant has adduced no evidence of the “safe system of work”, the Court is bound to accept (a) the account of the Accident given by the Plaintiff; and (b) the allegation that there was no “safe system of work”.

56.While it may be true that in many personal injury cases where the defendant adduced no evidence, the Court tended to accept the plaintiff’s evidence and found in his favour, each case is restricted to its own facts.

57.In this case, there is ample contemporaneous documentary evidence, which tends to cast doubt on the credibility of the Plaintiff. Firstly, I will start with the Plaintiff’s medical history.

58.The Plaintiff was adamant that she had not suffered any relevant injury prior to the Accident. This is incredible in light of the following documentary evidence:

(a) A sick leave certificate was issued by Dr L K Chan on 16 February 2013 (ie three months before the Accident) covering 15 to 18 February 2013 for “Lumbarpain”.

(b) It is noteworthy that Dr L K Chan (probably a general practitioner in Pak Tin area near Shek Kip Mei where the Plaintiff lived) is also one of the doctors, who issued three of the nine “discrepant” sick leave certificates referred to in paragraph 49 hereinabove.

(c) This pre-Accident sick leave certificate demonstrates that the Plaintiff had a history of “Lumbarpain”, which was or ought to be known to Dr Chan.

(d) In this light, the lack of reference to “Lumbarpain” in the three sick leave certificates (pre-amended) issued by Dr Chan after the Accident seems inexplicable, if the Plaintiff did in fact tell Dr Chan that he had back pain after or as a result of the Accident on 21 June 2013.

(e) There are also two pre-Accident sick leave certificates issued by Dr Wong Sai Ping (CMP) dated 19 and 20 December 2012 both giving a diagnosis of “Sprained injury to the bone in the right foot”.

(f) However, under cross-examination, the Plaintiff said she only complained of pain (as opposed to sprained injury) and Dr Wong told her that she had periostitis (inflammation of the membranes of the bones). She had no idea why Dr Wong wrote down “Sprain Injury” on the certificates.

(g) Likewise, there was another pre-Accident sick leave certificate issued by Dr Ho Kung Kei (CMP) dated 21 March 2013 recommending two days’ sick leave for “Sprained injury to ankle and dorsum of right foot” (emphasis added). Again, the Plaintiff said under cross-examination that she only had periostitis but had sustained no injury.

(cf Sometime after the Accident, the Plaintiff consulted Cheung Sha Wan Jockey Club Clinic on 27 March 2014, it was documented “Back pain with residual radiation to the Right leg/Right foot dorsum similar”).

59.The Plaintiff was a competitive sportswoman in Karate and Taekwondo. It is hardly surprising that the Plaintiff might be prone to suffer orthopaedic injury of one sort or another. I am under the distinct impression that the Plaintiff was seeking to underplay the significance of her previous orthopaedic injuries, in particular, her back pain and right foot injury prior to the Accident.

60.Pausing there, it is not the Plaintiff’s pleaded case that by reasons of her pre-existing back pain, the Defendant ought to have known that she was vulnerable to sustain back injury in the course of manual handling work carried out at the Supermarket.

61.Secondly, despite the catalogue of wide-ranging “Particulars of Negligence” pleaded in paragraph 10 of the Statement of Claim, the crux of the Plaintiff’s case is that (see paragraphs 9 and 10 of her Witness Statement):

(a) despite a complaint made to Manager Kwok about one month prior to the Accident that it would be too heavy for female staff to handle “GW” goods, they were asked to get on with it since it would not be fair on the male staff who received the same wage;

(b) she was not given any instruction or supervision as to the proper posture of handling the heavy plastic boxes;

(c) there were no warning posters and the like to give guidance as to the proper posture in handling the heavy plastic boxes; and

(d) there was insufficient manpower rendering the “system of work” unsafe.

62.Remarkably, in the Declaration, the Plaintiff is recorded to have stated:

“ (4) 公司有冇入職訓練？

答： 入職時，Supervisor 陳培偉帶住我做，佢會同我地一齊做，口述加示範比我睇。如：要打開个膠箱望望裏面D咩貨，紙箱点處理，貨品分類 (如：GW，JC，等) 。佢有話比我知有梯，板車等用，及示範比我睇。佢都有教我用唧車，我用過，但當晚我吾洗用唧車。亦有講貨品的重量，如「BB」最重，跟住「GW」，「JR」同「CT」差不多，最輕就係「JC」。

(5) 你地点分工，点解知道要做D咩貨？

答： 我入職時Supervisor陳培偉已同我地講 (我地包括我，家宝，阿飛，阿基)。男同事做較重的貨先，即「BB」類，女同事做較輕D貨先，即「JC」先。餘下的貨如「GW」，「JR」，「CT」大家完成。以我做貨品的先後計，我會做「JC」先，跟住「JR」，然後「CT」和「GW」。「BB」貨吾需要我做。除非幾次，D「BB」貨好多，做到尾聲仲有「BB」貨時，男同事会先將水放到購物車等我推去「水」貨架上架。”

63.However much sympathy I have for the Plaintiff, I am of the view that she has made a deliberate attempt to undermine the training that she had in fact received from the Defendant as documented in the Declaration:

(a) Contrary to the plain language used in the Declaration that she had used a pallet jack before the Accident, she claimed in oral evidence that she had only “played” with it but had not actually used it;

(b) A plain reading of the Answers to Q(4) and Q(5) of the Declaration is that since inception of the Plaintiff’s employment with the Defendant:

(i) she was required and did handle various categories of goods including the transfer of “GW” goods from a pallet to a flat trolley;

(ii) the only exemption was “BB” goods, which were heavy and normally handled by male staff but on occasions, female staff also assisted in replenishing “BB” goods on the shelves after they had been broken down and put on shopping trolleys by the male staff.

(c) Hence, I reject the Plaintiff’s evidence that she was not required to handled GW goods until about one month before the Accident whereupon she complained to Manager Kwok but was told to get on with it. If that were true, I would expect such evidence to find its way into the Declaration.

(d) It is not disputed that the Plaintiff (i) knew upon inspection of its content that the Box was heavy; (ii) had put an empty plastic box on the flat trolley and the Box was to be put on top of the empty box upon being transferred from the pallet (see Declaration at p 4).

(e) In the circumstances, when being asked by the Court, the Plaintiff claimed for the first time that she was prohibited by the supervisor (for fear of the lack of time before the Supermarket re-opened at 10:00 am) from removing some items from the Box and putting them into the empty box already on the flat trolley in order to lessen the load of the Box.  

(f) Again, if such prohibition were true, I would expect the evidence to be in the Declaration, the Statement of Claim and the Plaintiff’s Witness Statement in the first place.

64.The Plaintiff also claimed that she was not given any instruction or training and hence had no knowledge as to the proper posture for manual handling. This is not believable:

(a) To start with, on the Plaintiff’s own evidence, she was taught to open the cover of a plastic box to inspect its content in order to assess its weight. By so doing, she knew that the Box was heavy at the material time.

(b) Further, I find as a fact the Plaintiff had been handling GW goods from the inception of her employment with the Defendant and she would generally know the weight of plastic boxes containing GW goods.

(c) Importantly, there was a practice of putting an empty box on the receiving flat trolley so that the loaded GW boxes could be put on top.

(d) All these are indicative of an important aspect of the Defendant’s “system of work” for minimizing bending of back during manual handling and the Plaintiff’s knowledge thereof. In any event, it is a matter of common sense, in particular, one would have thought, to a serious Karate and Taekwondo practitioner such as the Plaintiff.

(e) Incidentally, in the AIR, it is remarked that:

“ 28. As told by I/P [Injured Person/Plaintiff] and [Madam Hung], they used to put an empty plastic box on a platform trolley and then put one or two more plastic boxes on top to facilities refilling products. Refer to ‘Sketch B’ …. By considering the height of the I/P [156 cm] and [Madam Hung] [155 cm], and the dimensions of the plastic box and the platform trolley, it appeared that this practice reduced bending in moving the plastic boxes with platform trolley and facilitated refilling products.” (See paragraphs 17 and 19 of AIR.)

65.It is discernable from the “Preoperative Nursing Assessment” done on 16 July 2015 upon the Plaintiff’s admission to the Caritas Medical Centre (“CMC”) for pain control that her bodyweight was 74.4 kg and her height was 158 cm (probably with footwear). Taking into account the post-Accident weight gain of about 10 kg (see below), the Plaintiff easily weighed over 60 kg at the time of the Accident and was quite stocky. The slight difference of 2 cm in height as measured by the Labour Department is immaterial.

66.From the depiction in Sketch B of the AIR, the surface of the flat trolley was 14 cm (approximately 5 ½ inches) above the floor, which would be around the same height as the type of wooden pallets used (ie one manoeuvrable by a pallet jack).

67.As said, the Box measured 2 feet (length) by 1.5 feet (width) by 1 feet (height) contained rice, vinegar, oil, sugar, cereal, flour, spaghetti, canned food, etc. However, it is not exactly clear where the Box was within the pallet before it was moved, bearing in mind that one pallet contained 10 to 15 plastic boxes, presumably in more than one layer (see paragraph 3 of the Plaintiff’s Witness Statement).

68.In the Declaration, the Plaintiff painted the picture that the Box, giving rise to the Accident, was the first of such boxes in the first GW pallet handled by her on that day. However, in the same breath, she said that the Box was in the bottom layer of the pallet (see Declaration at p 4 and Sketch B of the AIR).

69.In any case, it is known that the Plaintiff and Madam Hung were of similar height. There is no evidence that the weight of the Box was not evenly distributed. Assuming the Box weighed about 30 kg, the load to be borne by each of them was about 15 kg (or 33 lbs). Hence, the weight-bearing required for manual handling of the Box does not appear to be excessive relative to the Plaintiff’s bodyweight.

70.Since the handgrips of the Box were located near the top (ie about 1 feet in height), which was sitting on the pallet (another 5 to 6 inches above the ground), the Plaintiff would have to slightly bend forward or squat to reach the handgrips of the Box to lift it up (by about 1 feet) and to it put on top of the empty plastic box sitting on the receiving flat trolley.

71.The Plaintiff alleges that she was not given any training or instruction as to the proper posture. Although the Defendant did not call any direct evidence to rebut this allegation, it is likely and I hold that the Plaintiff was generally aware of the risk attendant upon excessive back bending during weight bearing. This is evidenced by the Plaintiff’s awareness of the Defendant’s practice of (a) assessing the weight of each load by visual inspection; and (b) putting an empty plastic box on the flat trolley to minimize back bending.

72.Further, as a serious practitioner of Karate and Taekwondo, the Plaintiff would have certain innate knowledge as to the functioning of different body parts. Importantly, the Plaintiff has been in the job for some nine months at the time of the Accident. It would be up to her to adopt whatever posture, which best suited her and there could be no hard- and-fast rule imposed by the Defendant.

73.The exact posture adopted by the Plaintiff at the time of the Accident is unclear since she has not been asked to demonstrate. However, I am of the view that the lifting of the Box by the Plaintiff by using both handgrips in a slightly forward bending posture while standing (with or without squatting) in synchronization with Madam Hung, did not involve the adoption of an unsafe or improper posture.

74.For the reasons set out hereinabove, I find that the Plaintiff has failed to prove that the Defendant had not installed and maintained a “safe system of work” or was in breach of its duty of care as the Plaintiff’s employer. No breach of section 6 of the Occupational Safety and Health Ordinance (Cap 509) is established either.

75.In fact, as a matter of common sense, where appropriate, the Plaintiff and Madam Hung could also have (a) used a flat trolley without any empty box sitting on it; (b) slid the Box across from the pallet to the flat trolley without much lifting; (c) rolled the flat trolley with the Box on it to the relevant shelf; (d) loaded some items from the Box onto the shelf or shelves whereby the weight of the Box would be reduced; (e) thereafter stacked the Box, if deemed necessary, onto an empty plastic box to be put on the flat trolley to facilitate further loading of the shelves.  These are matters that may reasonably be left to the discretion of the employees.

CAUSATION AND CONTRIBUTORY NEGLIGENCE

76.The foregoing would be sufficient to dispose of the case. However, for the sake of completeness, I would set out briefly my views on the various issues of causation and quantum.

77.As said, after work on 21 June 2013, the Plaintiff consulted Dr Tsang Wing Yee (CMP) in the morning. Dr Tsang issued a sick leave certificate for 1 ½ days (21 to 22 June 2013) for “back pain” without mentioning any accident or injury. In the circumstances, the Defendant puts the Plaintiff to strict proof of the occurrence of the Accident.  

78.In the Declaration, the Plaintiff specifically alleged that before going off work, she told “Ah Fey”, who was the supervisor-in-charge for that shift, that “we [meaning the Plaintiff and Madam Hung] had suffered an accident while moving the [Box]” (at p 5).

79.Apparently, “Ah Fey” had also given a declaration to the Labour Department, presumably also in about November or December 2013, wherein he denied having received the Plaintiff’s oral report of injury before or towards the end of the shift of the Accident (see AIR at paragraph 20).

80.Nonetheless, the Defendant did not identify “Ah Fey” nor call him to give evidence. One is left with the Form 2 (dated 3 July 2013) lodged by the Defendant to Labour Department on or about 8 July 2013 wherein it is stated that:

“ Lam Wing Yee reported to her supervisor that she hurted [sic] her lower back at round 8:00 – 9:30 a.m. on 21/6/2013 when she lifted up some stock with another female staff. She felt pain and weak on her lower back, so she went to visit the doctor after work.”

81.The Form 2 was filed without any qualification and it was ticked “yes” in the relevant box showing that the Accident occurred in the course of work.

82.In so far as the Defendant seeks to challenge the Plaintiff’s credibility by relying on the nine sick leave certificates (referred to in paragraph 49 hereinabvoe) wherein “back pain” or “lumbarpain” was not mentioned upon initial submission but was only inserted upon re-issuance or amendment, the Defendant ought to have sought discovery of the contemporaneous medical notes but they chose not to do so.

83.In the absence of any allegation, still less, proof of forgery, I am not prepared to look behind the various certificates. Accordingly, I find the Plaintiff did suffer injury causing back pain in the course of handling the Box. However, that does not mean that the Plaintiff’s injury is attributable to any fault of the Defendant.

84.In so far as may be necessary, if I had found the Defendant liable to the Plaintiff for negligence and/or breach of contractual duty and/or breach of its statutory duties, I would have attributed 30% contributory negligence on the part of the Plaintiff on account of her failure to (a) seek help; or (b) break down the load of the Box by taking out some items to facilitate manually handled.

QUANTUM

Medical treatment

85.As said, the Plaintiff had on-and-off back pain and right ankle pain prior to the Accident. Apart from Dr Tsang Wing Yee (CMP), she consulted numerous private doctors for her back pain for over one month after the Accident.

86.The Plaintiff did not consult the Accident and Emergency Department of CMC until 10 August 2013. This was when her back pain started to be properly and fully documented.

87.Since August 2013, the Plaintiff received treatment and therapy at CMC. She was also referred to Kowloon Hospital for hydrotherapy on 21 October 2014, which was stopped due to onset of palpitation.

88.On 31 March 2015, the Plaintiff was referred to the Pain Clinic of CMC. On 16 July 2015, she was admitted to CMC for right L5 nerve sleeve injection and trigger point injection with steroid. It was however abandoned upon onset of vasovagal attack during the procedure manifested in nausea, sweating, bradycardia (low heart beat) and lowish blood pressure.

89.Although the treatment at CMC (or as referred by CMC) seems eminently appropriate, the Plaintiff has the habit of seeking treatment at numerous other general out-patient clinics (“GOPC”) operated by the Hospital Authority including:

(a) Shek Kip Mei GOPC (“SKM-GOPC”) (13 August 2013 to 10 September 2015);

(b) Cheung Sha Wan Jockey Club GOPC (16 August 2013 to 8 June 2015);

(c) West Kowloon GOPC — Integrated Mental Health Program (“IMHP”) upon referral by SKM-GOPC on 3 April 2014 but she quit on 7 October 2015 in preference to psychiatric treatment;

(d) Nam Shan GOPC (18 September 2015).

90.Pause there, during the Plaintiff’s visit to Accident and Emergency Department on 30 September 2013, it is documented that “she claimed that she was blocked by GOPD appointment system due to multiple default”. This was only three months after the Accident.

91.In any event, she was granted sick leave from 21 June 2013 to 16 February 2016 by various clinics and/or doctors.

92.On or about 13 February 2017, the Plaintiff was examined by the Employees’ Compensation (Ordinary Assessment) Board and was assessed to have sustained 6% permanent loss of earning capacity for “Left foot and back injuries resulting in prolapsed disc L4/5 and psychiatric impairment” (see Form 7 dated 27 February 2017). This was confirmed upon review of assessment (see Form 9 dated 6 October 2017).

Orthopaedic treatment and assessment

93.The Plaintiff was jointly examined by Dr Lam Kwong Chin (instructed by the Plaintiff) and Dr Tsoi Chi Wah Danny (for the Defendant) on 19 May 2015. A Joint Orthopaedic Report was furnished on 17 June 2015 (the “JOR”).

94.In the JOR, the medical history of the Plaintiff is documented in detail, which needs not be repeated. Notably, it is recorded therein:

“ 56. An MRI scan of lumbar spine was done on 4/12 or 5/12/2013 [at CMC]. According to various reports, it showed:

– Mild disc degeneration, disc degeneration at L4/L5 and L5/S1 levels;

– Mild disc prolapse at L4/L5 and L5/S1.

– L/4/5 mild stenosis, mild spinal stenosis and thecal sac compression at L4/5”

95.Another MRI Scan was done on 5 January 2015 at CMC, which showed similar result (see paragraph 59 of JOR and MRI Report of Dr Wong Chi Tat, CMC).

96.At the joint examination, the Plaintiff complained of (see paragraph 40 of JOR):

– On and off back pain.

– Worse during winter, night time and menstruations.

– Sometimes with sharp pain while walking.

– Better with application of hot water bottle and drugs.

– Overall remained static despite treatment.

97.There is no dispute that physical examination revealed:

“ 40. Gait

Walking in a normal gait unaided.

Could not stand on either side single-legged steadily

Could stand on tiptoes or heels

Could ½ squat only.

Sitting without apparent distress for 30 minutes

Could get up from seat smoothly.”

“ 45. Back

Not using any spinal support.

No external deformity, swelling or scar.

No loss of lumbar lordosis.

Complained of tenderness at midline from lower lumbar spine to sacrum.

No paraspinal muscle tenderness or spasm.

Back movement limited by pain:	(Normal Range)
– Forward flexion: 30°	≥ 60°
– Backward extension: 10°	≥ 25°
– Sideward flexion: 10° each side	≥ 25°

46. Lower Limbs

No length discrepancy.

No deformity, swelling or scar.

No significant asymmetrical muscle wasting or spasticity.

	Right	Left
Girth of thigh	53 cm	53.3 cm
Girth of calf	40.5 cm	39.5 cm
Straight Leg Raising (supine)	70°	80°
(sitting)	90°	90°
Sensory	Diminished over outer skin and foot	Normal
Motor	Generally weaker, worse at toes	Normal
Reflexes	Normal	Normal

Satisfactory and symmetrical hip, knee and ankle movement.”

98.The Plaintiff could tolerate walking for 30 to 60 minutes and handle her own Activities of Daily Living (paragraph 42 of JOR). Further, both orthopaedic experts agreed that (at paragraphs 60 – 62 of the JOR):

(a) the disc degeneration at L4/L5 and L5/S1 levels should be pre-existing at the time of the Accident;

(b) if the Accident happened as described by the Plaintiff it could cause acute protrusion of the degenerative disc and compression against the adjacent nerve roots, which could explain onset of her symptoms after the accident;

(c) but for the Accident, the degenerative discs might remain asymptomatic for years, though it might also cause back symptoms even without encountering injury;

(d) the disc prolapse, spinal stenosis and thecal sac compression L4/L5 level could account for the lower limb neurological symptoms.

99.Dr Tsoi however observed that “the severity of the pain and area of involvement (whole lumbrosacral spine) exceeded those could be explained by the MRI Scan. There was no orthopaedic explanation for her failure in single leg standing and full squatting” (at paragraph 69). Dr Lam has not sought to dispute such observation. In this respect, I prefer the evidence of Dr. Tsoi.

100.Both orthopaedic experts suggest that the Plaintiff may opt for surgical intervention which will cost HK$100,000 and the estimated recuperation period would be about six months. However, details of the surgery have not been spelt out in the JOR.

101.In her oral evidence, the Plaintiff said despite her previous reluctance to undergo surgery, she had come to terms with it and would be prepared to accept surgical intervention.

102.The medical record shows that at the consultation with orthopaedic doctor at CMC on 20 January 2015, the Plaintiff opted for “MED [Microendoscopic Discectomy] L4/5 but worried about result of the surgery”. However, in a subsequent consultation on 31 March 2015, it was documented that she was not keen for any surgical intervention.

103.Presumably, the surgery now recommended by the orthopaedic experts is also “MED L4/5” or the equivalent. The Plaintiff has not explained what brought about her change of mind. In any case, the Defendant does not seek to dispute the need for the surgery.

104.Dr Lam opines that the Plaintiff cannot return to her pre-injury job as a saleslady in a supermarket, which will require a lot of weight handling and standing. She is only fit to take up jobs with less manual demand, such as cashier, telephone operator, car park attendant or jobs of similar nature. Even after the surgery, she would still have some degree of back pain, stiffness and lower limb symptoms.

105.In contrast, Dr Tsoi opines that the Plaintiff can resume her pre-injury work with exemption of heavy items delivery (≥ 10 kg). She is absolutely fit to take up cashier work and handling light grocery items. Jobs like office assistant, security guard, convenient store assistant, petrol station attendant and saleslady are also suitable for her.

106.Both orthopaedic experts also agree that the Plaintiff can take care of herself and perform simple activities in daily living. However, she would have problem in performing heavier household or grocery shopping.

107.Dr Lam opines that a reasonable period of sick leave up to 17 June 2015 (ie the date of JOR) is justified. The same should continue until two months after the then ongoing course of rehabilitation treatment. In contrast, Dr Tsoi opines that the Plaintiff has reached maximum medical improvement by about one year after the Accident.

108.With reference to the American Medical Association’s Guides (“AMA Guide”) to the Evaluation of Permanent Impairment (6^th ed), Dr Lam assesses 12% impairment of the whole person, which may be reduced to 7% after surgery. In contrast, Dr Tsoi assesses 10% impairment of the whole person, which may be reduced to 5% after surgery.

109.Both orthopaedic experts express certain views on the Plaintiff’s loss of earning capacity. For reasons which will become apparent hereinbelow, I do not see the need to make reference to them (see Tang Shau Tsan v Wealthy Construction Co Ltd CACV 58/2000 (unreported), 5 April 2000 and Li Wan Choi v Choi Wan Hing & Anor CACV 182/2000 (unreported), 15 November 2000 as explained by Bharwaney J in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2011] 1 HKC 463).

Psychiatric treatment and assessment

110.Upon referral by Dr Tsang of SKM-GOPC on 4 March 2014, the Plaintiff and was first seen at West Kowloon-GOPC (IMHP) on 3 April 2014. Upon mental state examination, it was documented “tearful, tidy, good eye contact, speech c/r [coherent/relevant], not active suicidal. Impression: IOD [Injured on duty], depression” (emphasis added).

111.The Plaintiff was last seen on 7 October 2015 and was discharged upon indication of her preference for treatment at psychiatric clinic. Meanwhile, she attended West Kowloon-GOPC once on 31 August 2015 for the purpose of obtaining sick leave.

112.What transpired is that as early as 7 April 2014 at another consultation at SKM-GPOC, the Plaintiff expressed her preference for treatment at a psychiatric clinic over West Kowloon-GPOC (IMHP). Accordingly, she was referred to and was first seen at the Psychosomatic Clinic at CMC on 11 November 2015, having defaulted an earlier appointment on 21 May 2015.

113.In the record maintained by Psychosomatic Clinic of CMC (dated 11 November 2015), it is documented as follows:

“ Mood low at times after knowing MRI results [12/2013];

Poor sleep.

Appetite better. BW gained 10+kg over 2 years.

Mood improved after eating.

Induced vomiting for a few times. Wanted to lose some weight. Denied use of slimming agents.

Sense of hopelessness.

Fleeting suicidal ideas.

Seen by GOPC. Given amitriptyline 25 mg nocte since Feb 2014. Better Sleep.

Started Fluoxetine 10 mg daily since June 2014 for persistent low mood.

Noted mood improved afterwards.

Going out with friends.

Sleep still poor. But better when Gabapentine added.

Currently taking Fluoxetine 10 mg daily only once a week.

No more fleeting suicidal ideas.

More forgetful.

Anxiety symptoms: palpitation, anticipatory anxiety as she worried if she would miss her appointment.

Pain still fluctuating.

…

Past Psychiatric History: New to MHS [Mental Health Service]

History of wrist slashing during her teens due to broken lover affairs.

One episode of suicide attempt by DO [Drug Overdose] of rat poison after conflict with ex-[Boyfriend].

…

Educated up to F7 with average results. Repeated A-level once. No conduct problem.

Worked as receptionist for a few months. Working as saleslady for a few years. Stable job. Also worked in supermarket at night. Stopped working after IOD [Injury on duty].

Courtship x 2 each lasted for 1 year. Last courtship ended a few years ago.

PMP [Pre-Morbid Personality]: Cheerful and optimistic. Many friends. Ventilated with friends. Hobbies: shopping and eating, meeting with friends. Religion: nil. Smoker for 10 years (1 packet per day). Ex-social drinker. Denied SA [Substance Abuse]/FR.

MSE [Mental State Examination]

Overweight. Strong cigarette smell. Hair dyed brown. Walked unaided. Normal gait.

Mood on low side. Tearful at times.

Speech coherent and relevant. Slow and soft voice.

Denied AH [Auditory Hallucination].

Denied persecutory ideas.

Oriented.

Denied active suicidal ideas.

Impression; Moderate Depressive Episode

Borderline personality trait. Poor coping skills.”  

(emphasis added)

114.Meanwhile, she continued to consult Psychosomatic Clinic at CMC. On 20 January 2016, it was documented:

“ Mood euthymic, not overly depressed.

…

Nagged for SL [sick leave] today.

Explained no SL can be continue[d] in Psy clinic in view after assessed her mental condition, she also agreed that her mental status was stable and she was capable of work”

(emphasis added)

115.The Plaintiff was jointly examined by Dr Yu Wai Tak (Expert Psychiatrist for the Plaintiff) and Dr Benjamin Lai (Expert Psychiatrist for the Defendant) on 9 November 2017. A joint psychiatric report was furnished on 6 February 2018 (the “JPR”).

116.In the JPR, the social and medical history of the Plaintiff is fully documented. It is notable that the Plaintiff has a previous history of self-harm. It is documented (at p 2 of JPR) that:

“ 9. Mental Health

… b)(i) She hurt herself twice. Both were after having a row with a boyfriend. She wished to inflict pain and not to attempt suicide. She hoped the act would make the boyfriend change his mind on leaving her. The first time she was at school and slashed her arm(s). The second was 1 or 3 years before the accident and she slashed her wrist(s).  She no longer missed any ex-boyfriends. She did not have counseling, say, from a social worker.”

“ 24. Suicidality:

a) She slashed both her wrists several times. The first was several months after the accident and the last several months before [the Joint Psychiatric Assessment]. She stopped as it was too painful. The bleeding was stopped by pressing the wounds with tissue paper. She showed us the scars which were indistinct. She either wished to die from bleeding or inflict pain.

b) Thinking of wrist-slashing was less frequent after psychiatric treatment but more often latterly due to increased mental distress.

c) She reported suicidality to the public clinic psychiatrists a few months ago and was followed up more often and given more medications. She did not disclose previously as she feared compulsive admission to a mental hospital.”

117.Dr Yu opines that the Plaintiff suffered from Adjustment Disorder with Mixed Anxiety and Depressed Mood (Code 309.28 under Diagnostic and Statistical Manual, 4^th Edition (“DSM-IV”) published by the American Psychiatric Association) whereas Dr Lai diagnosed Adjustment Disorder (Code 309.0 under DSM-IV).

118.Dr Lai explains that the difference lies in the relative degree of severity given to her anxiety symptoms as compared to the severity of her depressive symptoms (paragraph 56 of JPR). Both psychiatric experts attributed the Plaintiff’s psychiatric symptoms to the Accident or its aftermath.

119.Dr Yu opines that the Plaintiff will benefit from 12 hourly sessions of psychotherapy along with medications (including antidepressant and anxiolytic) for 12 months. Dr Yu recommends psychotherapy in private clinic but expresses the view that there is no benefit of obtaining medications from private clinic (see paragraphs 69 – 72 of JPR).

120.Dr Lai opines that psychiatric treatment in the form of medication and psychotherapy are required, which can be procured from a psychiatrist in the public sector. Separate individual psychotherapy by a clinical psychologist is however not required. If treatment for borderline personality traits and poor coping skills are required, a course of psychotherapy of about 6 to 8 sessions is appropriate.

121.Dr Yu opines that apart from her orthopaedic condition, the Plaintiff’s mental condition would prevent her from returning to her pre-injury occupation as a sales assistant of the Defendant. If she improves significantly after psychotherapy and be able to return to her pre-injury employment, she should work fewer hours, say 6 to 8 hours per day (paragraph 82 of JPR).

122.In contrast, Dr Lai opines that the Plaintiff’s psychiatric condition is mild and she is mentally fit to work to return to her pre-injury work or other job appropriate to her physical abilities. Her work tolerance and work efficiency are likely to be affected by her psychiatric condition to a mild degree (paragraph 83 of JPR).

123.Dr Yu recommends 3 years’ sick leave from Accident whereas Dr Lai opines that 3 to 6 months of sick leave from when she was worse in her psychiatric condition is appropriate (paragraphs 84 and 85 of JPR).

124.With reference to the AMA Guide, Dr Yu assessed 5% impairment and Dr Lai assessed 3 to 5%.  Hence, there is very little to choose between the assessment of Dr Yu as compared to that of Dr Lai. Both psychiatric experts express certain views on the Plaintiff’s loss of earning capacity. Again, I do not see the need to resort to such opinion.

Pre-trial loss of earning

125.It is incontrovertible that the Plaintiff had back pain and leg pain prior to the Accident. I am of the view that but for the Accident, the Plaintiff is likely to remain relatively asymptomatic at least for a few years punctuated by on-and-off back pain and right leg pain.

126.However, it would not be so disabling as to affect her ability to work. In short, she might need to take sick leave every now and again. But for the Accident, the Plaintiff would be able to maintain two full-time job as a sales person of telecommunication services and as a Sales Assistant in the Supermarket.

127.That said, I am not convinced that if the Accident had not happened, the Plaintiff would have maintained two jobs through her working life as claimed.

128.The Plaintiff has an optimistic personality and she tends to spent time with her friends. She is outgoing and has her own interests and hobbies including shopping, eating, sports (snooker and cycling), etc (see medical notes of Psychosomatic Clinic at CMC dated 11 November 2015 and 30 March 2016 and SKM-GOPC dated 22 August 2015 and also JPR at p 3).

129.It is more likely, and I so find, that she took up the additional job at the Supermarket in order to earn enough to discharge the debt of HK$100,000, which she incurred some one year prior to the Accident:

(a) Since graduation in 2007 and prior to joining the Defendant on 6 September 2012, she did not have more than one job.

(b) The job as a salesperson of telecommunication services, whether at Hong Kong Cable Television (14 February 2012 to 26 July 2012) or HKT Services Ltd (since 1 November 2012 to the time of the Accident and beyond) was in fact the Plaintiff’s “full-time” job for which she received a “guaranteed pay” of HK$6,000 per month plus commission and allowance.

(c) The Plaintiff would be likely to settle down to have a family at some stage by the look of the history of her courtships.

130.Since about 20 June 2014, the Plaintiff started to receive Comprehensive Social Assistance upon recommendation of SKM-GOPC. The amount is unknown, which is not deductible in any event (see Tang Kwong Chiu v Lee Fuk Yue [1980] HKLR 588). However, this is indicative that she did not have much saving despite having two jobs at the time of the Accident.

131.On the strength of the treatment history, I am of the view that sick leave for a period up to 16 February 2016 as certified on the Form 7 (dated 27 February 2017) is justified.

132.The Plaintiff earnings from her employment with the Defendant from 6 September 2012 to 31 March 2013 was HK$72,742 (see Inland Revenue Record). This tallies with the corresponding wage record produced by the Defendant.

133.The average is therefore HK$72,742 ÷ 6.75 months = HK$10,776.59 (rounded up to HK$10,777). As such, I reject Mr Yip’s submission that it should be assessed at HK$12,000 per month (see paragraph 115 of the Plaintiff’s Closing Submission).

134.The Plaintiff’s earnings from the HKT Services Ltd from 1 November 2012 to 31 March 2013 was HK$70,161 or about HK$14,000 per month (see Inland Revenue Record and paragraph 116 of the Plaintiff’s Closing Submission).

135.However, the average of HK$14,000 is slightly distorted by reason of the fact that (a) no commission was reflected in the first pay slip for November 2012 showing only HK$6,624 and (b) the Plaintiff was apparently not working in full capacity in March 2013 earning only HK$8,610 because of her sick leave.

136.Despite the expiry of her sick leave on 16 February 2016, it was not until August 2018 when the Plaintiff found a job as a security guard. In August 2018, the Plaintiff was employed with China Overseas Property deployed to Radio Television Hong Kong (RTHK). She earned about HK$13,800 per month but quit the job on 31 March 2019 upon expiry of the employer’s service contract with RTHK.

137.About one month thereafter, the Plaintiff secured a similar job with her current employer as a security guard deployed to the Control Room of the University of Hong Kong. She is currently earning HK$14,000 per month (ie almost at par with her previous income with HKT Services Limited).

138.I am of the view that it would be reasonable to expect the Plaintiff to rejoin the work force three months after expiry of her sick leave (ie by 16 May 2016).

139.Accordingly, I assess the Plaintiff’s Pre-Trial Loss of Earning, if I had found for her on the issue of liability, as follows:

(a)	Loss of Earning from HKT Services Limited (from 21 June 2013 to 16 May 2016) HK$14,000 × 888.5 days ie 32.2 months − HK$30,499	HK$ 420,301
(b)	Loss of Earnings from Defendant (for 2 year after the Accident on the basis that the Plaintiff would have this additional job in order to pay off the remainder of her debt of HK$100,000, bearing in mind the corresponding additional expenses to be incurred on travelling and meals taken outside, which would have reduced her ability to eliminate the debt in a short span of time) HK$10,777 × 24 months	HK$ 258,648
		HK$ 678,949

140.The corresponding Loss of MPF Contribution is HK$678,949 × 5% = HK$33,947.

Pre-trial medical and travelling expenses

141.A total of HK$13,500 (ie medical expenses of HK$6,000 and travelling expenses of HK$100 × 75 visits). I agree with the Defendant that a total sum of HK$10,000 would be reasonable.

142.The sum of HK$6,000 for medical expenses should be allowed in full. A sum of only HK$4,000 should be allowed for travelling expenses bearing in mind most of the hospitals and clinics attended by the Plaintiff are not far away from her home in Kowloon, which are accessible by public transport.

143.In so deciding, I have not lost sight of the fact that at one stage, the Plaintiff moved to Kowloon City to live with a friend in order to avoid debt collectors.

Future loss of earnings and loss of earning capacity

144.On the foregoing finding, the Plaintiff would not have held down two jobs in the long run. The Plaintiff is now earning about HK$14,000 as a security guard, which is at par with his previous earning at HKT Services Ltd (as pleaded in paragraph 48 of the Revised Statement of Damages).

145.In the circumstances, I do not see fit to award any damages for Future Loss of Earnings or Loss of MPF Contribution save and except for the six months recuperation period after the proposed surgery.

146.I would allow another month for the Plaintiff to seek employment. The Future Loss of Earning is therefore HK$14,000 × 7 = HK$98,000. The corresponding Future Loss of MPF Contribution is HK$98,000 × 5% = HK$4,900.

147.In fact, even if the Plaintiff now decides to have an additional job, there is nothing to prevent her from doing so. However, it does not detract from the fact that with her physical and psychiatric impairment partly attributable to the Accident, she now has reduced stamina.

148.If the Plaintiff had remained with HKT Services Ltd, she might stand a chance to earn commission and allowance, which would take her monthly income up to HK$20,000 as evidenced by previous wage record. However, that would be subject to vicissitude of life on account of her pre- existing degeneration in the lower back and leg pain, which had already manifested prior to the Accident. 

149.Looking at the case in the round, but for my finding on liability, I would have awarded a sum of HK$100,000 for Loss of Earning Capacity.

Future medical expenses

150.The claims under this head are not seriously disputed. The Plaintiff accepts the Defendant’s quantification of HK$103,600 consisting of HK$100,000 for the back surgery and HK$3,600 for psychiatric treatment and psychotherapy in the private sector.

PSLA

151.I am of the view that the Plaintiff is in category 2 as expounded in Cham Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 meaning that even if the Accident had not happened, there was a possibility that she might become symptomatic at some stage.

152.I do not think a rigid apportionment on a percentage approach is necessary. Looking at the case in the round, I would have awarded HK$300,000 for PSLA if I had found for the Plaintiff on liability (see Wong Man Kin v Golden Wheel (C&HK) Transportation Co Ltd [2015] 5 HKC 570, Bharwaney J; Yau Shing Tsan v Fai-To Elderly Affairs Ltd t/a Ka-To Home for the Aged HCPI 168/2004 (unreported), 9 August 2005, Suffiad J; Chan Yuet Keung (supra); Yeung Tai Hung v Hong Kong Baptist Hospital Au Shue Hung Health Centre HCPI 686/2004 (unreported), 20 July 2006, Suffiad J; Shih Pik Nog v G2000 (Apparel) HCPI 832/2009 (unreported), 25 March 2011, DHCJ Burrell).

Loss of society

153.Although not specifically pleaded, this claim for HK$50,000 is made under section 20C(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23. However, this head of claim is reserved for cases, where the injured person suffers such serious injury that he is unable to participate in a meaningful family life.

154.In Ng Tat Kuen v Tam Che Fu [2019] 4 HKC 533 involving a tetraplegia plaintiff, who has since been divorced from his wife and whose only daughter lived apart, a sum of only HK$15,000 was awarded for Loss of Society. Bharwaney J explained:

“ 100. The plaintiff has full cognitive function and is capable of appreciating, and returning love and affection. Although he is no longer able to participate in active family life, he is visited by his sisters regularly and he also goes out occasionally with them. …”

155.The Plaintiff felt distressed due to slow progress of the Medical Assessment Board. In the Consultation Note of Psychosomatic Clinic of CMC dated 16 December 2015, it is documented “Requesting rehousing to live alone because she did not want to face her family when they asked the prospect of the MAB”.

156.Evidently, the Plaintiff has moved back to live with her mother and younger sister in Shek Kip Mei. There is no evidence of any loss of society. I therefore decline to make any award under this head.

Loss of service

157.A sum of HK$50,000 is claimed under this head. Although not specifically pleaded, this claim is made under section 20C(4) of Cap 23.

158.Apart from the brief description in paragraph 38 of the Witness Statement, there is no evidence as to the time spent by the Plaintiff in carrying household chores or the level of service she used to provide to her family members.

159.Given her pre-existing lower back degeneration resulting in occasional back pain and leg pain, her ability to perform household chores would be diminished in any event even if the Accident had not happened.

160.I would only allow HK$25,000 under this head but for my finding on liability.

SUMMARY ON QUANTUM

161.Without prejudice to my finding on the issue of liability, the quantification of the claim would be as follows:

	Special damage
(a)	Pre-Trial Loss of Earnings	HK$ 678,949
(b)	Pre-Trial Loss of MPF Contribution	HK$ 33,947
(c)	Medical Expenses	HK$ 6,000
(d)	Travelling Expenses	HK$ 4,000
	General damage
(e)	Future Loss of Earnings	HK$ 98,000
(f)	Future Loss of MPF Contribution	HK$ 4,900
(g)	Future Medical Expenses	HK$ 103,600
(h)	Loss of Earning Capacity	HK$ 100,000
(i)	PSLA	HK$ 300,000
(j)	Loss of Society	HK$ 0
(k)	Loss of Service	HK$ 25,000
	Total:	HK$ 1,354,396

162.But for the finding on liability, special damage as quantified should carry interest at ½ judgment rate (4%) from 21 June 2013 (date of Accident) to date of judgment.

163.General damage (including PSLA and Loss of Service) should carry interest at 2% from 12 May 2016 (date of writ) to date of judgment.

164.The sum of HK$1,354,396 would be subject to deduction of 30% on account of contributory negligence. Thereafter, any sum received by the Plaintiff on account of the related Employee’s Compensation Claim should be deducted before computation of interests (see Bristow v Judd (1993) PIQR Q117).

DISPOSAL

165.The Plaintiff’s claim herein is dismissed with costs to the Defendant, to be taxed if not agreed.

166.The Plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

167.For the record, the Plaintiff’s and the Defendant’s solicitors have undertaken to waive their respective costs for preparation of the medical records in the trial bundle.

Mr Samuel Yip, instructed by Fongs, assigned by Director of Legal Aid, for the plaintiff

Mr Daniel K K Chan, instructed by Winnie Mak, Chan & Yeung, for the defendant