Iao, Choi I v. Ingrid Millet Ltd
Read the full judgment text of DCPI 2002/2019 on BabelCite. This District Court judgment was delivered on 20 April 2022.
1. This is an action commenced by the plaintiff, a masseuse, against the defendant, her employer, for her personal injuries sustained during employment on 1 April 2017. The employment contract between the parties was made on or about 15 November 2016. The plaintiff had 3 years of similar experience before she was employed by the defendant.
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DCPI 2002/2019 [2022] HKDC 288 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2002 OF 2019 -----------------------------------------
----------------------------------------- Before: Deputy District Judge Calvin Cheuk in Court Dates of Hearing: 29-30 November, 1 and 3 December 2021 Date of Judgment: 20 April 2022 -------------------------- JUDGMENT -------------------------- INTRODUCTION 1.This is an action commenced by the plaintiff, a masseuse, against the defendant, her employer, for her personal injuries sustained during employment on 1 April 2017. The employment contract between the parties was made on or about 15 November 2016. The plaintiff had 3 years of similar experience before she was employed by the defendant. 2.The plaintiff’s case is that on 1 April 2017 at about 12:50 pm, the plaintiff was performing massage for a customer in Room No 3 (the “Room”) of the defendant’s shop. In doing so, she was required to rotate and twist her trunk because the massage room was too small and full of apparatus. Further, the defendant had never instructed her that she was allowed to remove the apparatus. Consequently, she sprained her waist and back and sustained injuries (the “Accident”). 3.The plaintiff raises 4 causes of action against the defendant, namely: (1) negligence; (2) breach of the implied terms of the contract of employment; (3) breach of common duty of care under Section 3 of the Occupiers’ Liability Ordinance, Cap 314 (“OLO”); and (4) breach of statutory duties under Sections 6(2)(a)-(e) of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”). 4.The following witness statements are filed:-
5.The defendant had originally also filed the Chinese Witness Statement of Chung Pik Kan (“Madam Chung”) dated 14 April 2020. However, it was expunged by consent of both the plaintiff and the defendant during the course of the trial for reason that Madam Chung had left Hong Kong for good and was no longer available to give evidence at trial on behalf of the defendant. 6.The parties also filed a joint medical report prepared by Dr Lam Chi Keung Johnson (“Dr Lam”) on behalf of the plaintiff and Dr Tsoi Chi Wah Danny (“Dr Tsoi”) on behalf of the defendant. 7.The plaintiff was represented by Ms Debora Poon and the defendant was represented by Mr Gary Chung (together with Mr Jethro Pak). LIABILITY 8.As submitted by Ms Poon in her closing submissions, issues of the present case are:-
9.In paragraph 5 of the Statement of Claim, the plaintiff pleads that:-
10.Further, paragraph 9(b) and (c) of the plaintiff’s witness statement states as follows:-
11.When the plaintiff was under cross examination, however, she gave various different versions of how the Accident occurred. In particular:-
12.While I can understand a witness may not be able to recall the details of an event, the plaintiff’s performance, in my view, was more than that. She was changing her versions of event whenever she found the questions difficult to answer. 13.The credibility of the plaintiff’s case is further undermined by the following contemporaneous evidence. First of all, when the plaintiff attended A&E Department of North Lantau Hospital (“NLH”) on 1 April 2017 in the afternoon, the medical report stated that:-
14.Further, in the A&E Clinical Documentation Form of NLH of the same day, under Chief complaint, it was recorded that:-
15.Under the section “History & Clinical Findings”, it was also recorded that:-
16.In my view, these contemporaneous documents, in particular the fact that she did not report any associated fall or trauma and the question marks as shown in the medical records, suggest that the plaintiff herself did not know how she was injured. 17.The plaintiff’s own WhatsApp audio messages on 2 April 2017 to Madam Chung, the defendant’s supervisor at the time, also suggest the same. They record the following:-
18.As to the Form 2 filled in on 11 April 2017 by Madam Mak, the defendant’s Human Resources Officer, there were also no details of how the plaintiff was injured. It only records that the plaintiff sprained her back while she massaged a customer:-
19.For the reasons above, I do not find the plaintiff’s evidence regarding how the Accident occurred reliable and do not accept it. 20.Ms Poon submits that in the Defence, the defendant pleads that the plaintiff told her supervisor Madam Chung at about 1:15 pm on 1 April 2017 that she sprained her waist as she was clearing and cleaning material and equipment; and she did not mention at the time she sprained her waist as she was performing a massage at all. Ms Poon submits that the defendant’s assertion is not supported by evidence and contradicted by Form 2 completed by Madam Mak. 21.While that may be correct, the burden remains on the plaintiff to prove in what manner the Accident took place. If the plaintiff did not and does not know how she sprained her back and sustained injuries (as I find in the present case), it begs the question how she can prove that the Accident occurred as a result of any breach of the defendant’s duties. For these reasons, I find that the plaintiff’s claim should be dismissed on this ground alone. 22.In any event, I consider that the plaintiff’s claim should be dismissed for the following additional reasons. First of all, according to the plaintiff, the setup and condition of the Room was shown in some photographs adduced by the plaintiff. The source of the plaintiff’s photographs is however dubious. 23.The plaintiff admits that the relevant photographs were not taken by her, but by a former colleague named “Cat”. She did not know the exact date on which those photographs were taken, but it should 8-10 days after the Accident, and it should have been in April 2017. “Cat” was however not called as a witness in these proceedings. 24.Further, the plaintiff’s photographs were attached to an email dated 11 September 2017, with a recipient known as [email protected]. The plaintiff, however, says she cannot remember who that was, and neither can she remember the reason for her to send that email. 25.In my view, I do not find the plaintiff to be a credible witness and she was plainly less than forthcoming. 26.Without knowing the setup and condition of the Room at the time of the Accident, I cannot decide whether the plaintiff’s allegation that the Room was too small and full of apparatus (which led to the Accident) is supported by proper evidence. 27.Secondly, as to whether the plaintiff was permitted to move the apparatus in the Room, I agree with the defendant that there is a notable change of case in the plaintiff’s evidence. In her witness statement made on 15 February 2020, the plaintiff only stated that she had never been instructed by the defendant to move the machines. But in her supplemental witness statement made on 28 October 2021, her evidence changed to aver that the defendant specifically forbid all masseuses from moving beauty apparatus out of the rooms. In the plaintiff’s oral evidence given at the hearing, such instruction was further said to have been conveyed by the manager in a meeting. 28.In contrast, the defendant’s witness Madam Lau confirmed in her evidence that there was never such a meeting in which the defendant prohibited masseuses from moving beauty apparatus. According to Madam Lau, it is a common occurrence for the defendant’s staff to move apparatus. She also said that she had previously seen the plaintiff moving beauty apparatus. 29.The apparatus were fitted with wheels, indicating that they were meant to be moved around. Madam Lau also explained the defendant’s operation that apparatus would be required to be moved and swapped among rooms to fit the services the customers required. Madam Lau, as well as the defendant’s another witness Madam Mak, confirmed that they had experience of moving the apparatus. 30.Regarding movement of the bed, it is the evidence of both Madam Lau and Madam Mak that the bed was not difficult to move. According to the evidence of Madam Lau, it is practical for masseuses and beauticians to move the bed in order to fit the relevant procedure required. As such, the choice is on the plaintiff herself to move the bed if she considered the distances between the rear wall was insufficient for her to perform the foot massage. Madam Lau suggests that the plaintiff could have also asked the customer to change position, namely by placing her head at the end of the bed and the feet at the front of the bed. 31.In overall, I prefer the evidence of Madam Mak and Madam Lau over the plaintiff. I also accept the evidence of Madam Mak and Madam Lau and reject the evidence of the plaintiff whenever they contradict each other. In my view, even if there was some degree of congestion in the Room, a reasonably experienced masseuse (such as the plaintiff) should be able to carry out her job safely without substantial difficulty, whether by moving the beauty apparatus or the bed, or by asking the customer to change position. 32.For the reasons above, I dismiss the plaintiff’s case on liability, whether in relation to negligence, breach of the implied terms of the contract of employment, breach of OLO or breach of OSHO. QUANTUM 33.If I am wrong on the liability issue, I will need to decide on the quantum issue, which I now turn to. There are several preliminary observations that I would like to set out before I go on the individual items. 34.First of all, while Dr Lam and Dr Tsoi agree that the plaintiff suffered from soft tissue injury to her low back, they also agree that the plaintiff exaggerated her conditions. As shown in the surveillance taken in February/March 2018 (ie less than 1 year after the Accident), and agreed by the experts, notwithstanding the plaintiff was carrying a walking stick, she did not need to rely on it. 35.Secondly, from the immigration record of the plaintiff between 1 April 2017 to 2 July 2020, the plaintiff left Hong Kong for Macau and the Mainland China in multiple times starting from 13 October 2017 (ie less than 7 months after the Accident). Under cross-examination, the plaintiff explained that she sought regular treatments from some unlicensed medical practitioners such as acupuncture, Chinese bone-setting and so on. No medical reports or receipts are, however, adduced in these proceedings. 36.Thirdly, the plaintiff went to Australia between 29 May 2019 to December 2020, and then from February 2021 to September 2021. It appears that the plaintiff had no problem taking long haul flights. There is again no evidence showing that she attended any medical treatment in Australia. (1) PSLA 37.After considering the various authorities submitted by both the plaintiff and the defendant, I agree with the defendant that the plaintiff’s injury was relatively minor. I consider that the award of PSLA should not exceed $150,000. (2) Pre-trial Loss of Earnings and MPF 38.The total salaries received by the plaintiff from 11 November 2016 until 1 April 2017 amount to $74,839.67. There are 142 calendar days and therefore about 4.6 months. I consequently find that the plaintiff’s pre-trial earnings to be $74,839.67/142 x 30 = $15,811.20/month. 39.As to the reasonable sick leave period, I prefer the evidence of Dr Tsoi, who opines that 6 months will be sufficient. 40.In the premises, the plaintiff’s pre-trial loss of earnings and MPF should be: $15,811.20/month x 6 months x 1.05 = $99,610.56. (3) Loss of Future Earnings and MPF 41.The experts agreed that the plaintiff should be able to return to work as a beautician. 42.Dr Tsoi opines that the plaintiff should have no problem in resuming her pre-injury job in almost full capacity, with her future employability to be unlikely affected. Purely for parties’ reference, he opines that the loss of earning capacity is 1%. 43.Dr Lam opines that the plaintiff will be able to return to work as a beautician with more self-exercise to strengthen the low back, and a gradual return-to-work program to improve her endurance. He estimates that the plaintiff’s injury itself should carry 2% loss of earning capacity. 44.Given the minimal impact on the plaintiff’s resumption of work as a beautician, I do not consider that the Accident caused any real loss of future earnings and MPF. I therefore decline to make any award under this head. (4) Loss of Earning Capacity 45.This head of damages was explained by Lord Fraser of Tullybelton in Chan Wai Tong v Li Ping Sum [1985] HKLR 176, at 183, as follows:-
46.The evidence shows that the impact on the plaintiff’s earning capacity by the Accident was minimal. Further, by May 2019 when the plaintiff went to Australia, in my view, the plaintiff had no intention to seek further employment. This is consistent with the fact that she was not in any employment at the time of trial. I therefore will not make any award under this head. (5) Special Damages 47.I agree with the defendant that $15,000 will be sufficient under this head. (6) Future Medical Expenses, Tonic and Nourishing Food 48.The plaintiff no longer claims damages under this head. I also consider that there is no need for further medical expenses. Hence the award under this head is nil. (7) Summary on Quantum 49.Credit should be given to the employees’ compensation received by the plaintiff in the amount of $271,341.34. 50.In summary, the total amount of award is as follows:-
CONCLUSION 51.For the reasons above, I dismiss the plaintiff’s claim. 52.There be a costs order nisi that the plaintiff shall pay the costs of the defendant in these proceedings with certificate for one counsel. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. 53.I thank Ms Poon, Mr Chung and Mr Pak for their assistance.
Ms Debora Poon, instructed by Ambrose Ng & Co, assigned by the Director of Legal Aid, for the plaintiff Mr Gary Chung & Mr Jethro Pak, instructed by Winnie Leung & Co, for the respondent |
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