Lee Yuk Lan v. Royaltelle International Ltd. t/a The Royal Garden

HCPI000187/1995

HCPI 187/95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES CASE NO. 187 OF 1995

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Coram: The Hon. Madam Justice Beeson in Court

Dates of Hearing: 14th - 17 June 1998

Date of Handing Down Judgment: 5 August 1999

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J U D G M E N T

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INTRODUCTION

1. On 2.1.94 at about 6:50 p.m. the Plaintiff who was employed as a cashier by the Defendant slipped in a corridor outside the kitchen area of the hotel and suffered a sprained back. She now seeks damages from the Defendant.

PLAINTIFF'S PERSONAL PARTICULARS

2. The Plaintiff is aged 32 with date of birth 27.7.67. At the date of the accident she was aged 26. She had secondary school education and had completed a vocational training course in Hotel Front Office procedure.

3. Prior to working for Defendant she had been employed variously as a sales girl; receptionist; showroom representative; guest services officer with a club and as a room clerk in a hotel.

4. On 11.5.92 she began work for Defendant as a front office cashier at a basic salary of $7,870.00 p.m. The Defendant provided uniforms and laundering; 2 meals per shift at the staff cafeteria; medical and dental services and hospital insurance. Under her employment contract an annual bonus was payable at the discretion of the employer. In 1992 and 1993 she was paid a bonus equivalent to 2 months salary.

5. Plaintiff claimed another source of income, from casual work as a jazz dancer. She said that she earned around 20,000.00 each year appearing as a dancer at various shows put on as entertainment.

THE ACCIDENT

6. The Plaintiff was on evening shift (3:15 p.m. to 11:15 p.m.) on 2.1.94. She was returning to duty after a mealbreak in the staff cafeteria. She had been to the female locker room to collect some belongings and was walking to the lifts by one of two possible and permitted routes at L3, intending to return to duty at 7.00 p.m. She said she was walking at a normal pace in low-heeled shoes.

7. The corridor was bordered by the kitchen on one side and by the laundry and a dry store on the other. It was used for the transporting of food supplies to the kitchen and for the carriage of prepared food to other parts of the hotel. Staff were not prohibited from using it and it was a route favoured by most staff because it was slightly shorter and did not entail the bother of having to pass through doors as the other route did.

8. The Plaintiff said she slipped and fell because the corridor floor was slippery and, after the fall, she noticed a white creamy substance on the floor which was melting into a clear liquid. She had not seen the cream before she fell. A laundry worker assisted her when she had difficulty in standing up and notified security. The Senior Security Officer and another officer came to the scene and the Plaintiff went by ambulance to hospital for examination and treatment.

9. Plaintiff's evidence was that the corridor where she fell was often wet and slippery and on occasions she had noticed cream on the floor from cakes and pastries being transported. This was not agreed by the Defendant's Assistant Housekeeper (DW 4) who outlined the thrice daily cleaning routine for that area. The cleaning of small spills between those times was the immediate responsibility of the spiller. Large spills occurring between fixed cleaning times were dealt with by the spiller advising the housekeeping section to do so. Additional checks of the area were made on both shifts, although not at fixed times.

10. The Chief Security Officer (DW2) Mr. Lo Man-wai, said in evidence he had inspected the floor at the scene and tested it by rubbing his foot on the surface. He said the floor was not wet or slippery and that no cream was evident. He did not record these claimed findings in the Incident Report he made to the Assistant Manager on 2.1.94. His report stated, without qualification, that he had been told the fall was due to a wet floor. Nor did he include in his report what he said in court, namely, that the Plaintiff told him the accident occurred because she was hurrying back to duty. These were very strange omissions in view of his position and of the hotel's potential liability for staff accidents. Even stranger was the omission of this highly relevant material from DW 1's witness statement made for these proceedings.

11. DW2 did not apprise the Duty Manager of these details either; the Duty Manager's entry in the hotel Log Book does not refer to the state of the floor. The Staff Accident report made by the Plaintiff stated 'I slipped down due to the cream of cake on the floor'. That report was dated by Plaintiff as 2.1.94, but is marked as having been received by the Personnel Department on 29.1.99, which was probably the date it was prepared, as Plaintiff did not return to the hotel that night and was on sick leave thereafter. However the Duty Manager's contemporaneous shift report notes the incident and refers to the fall being 'due to there was some cream and water at the said area' so it appears that there was a report of the floor condition from some member of staff.

12. DW2 said that there was no subsequent investigation and that the matter was left to Plaintiff's supervisor to follow up. He confirmed that the floor surface was of non-slip tiles and said there was a sign on the wall warning of a wet floor. Plaintiff did not agree that the sign was there at the time of the accident, although the sign appears in photographs taken many months later.

13. I did not find DW2 a reliable witness in light of the discrepancies between his initial report, his witness statement and the evidence he gave in court. If he had investigated the accident as he said he did, and if it was his responsibility to report on it, there is no sensible reason for him to have left out relevant details in his report or, later, his statement. The only explanation he gave for doing so was to say 'That finding is not in my report. Normally I would not write the condition of the spot where the accident occurred so assertively'.

14. I was satisfied having heard the evidence and considered what documents there were, that the accident had occurred in the manner and for the reason described by Plaintiff.

15. Defendant denied negligence, or breach of contract or breach of common duty of care under the Occupiers Liability Ordinance and claimed that the accident was due to the Plaintiff's failing to keep a proper lookout, failing to adopt the alternative route when she was aware of the dangers of the kitchen corridor and failing to pay attention to warning signs.

16. The Plaintiff called Mr. Rheo Lam, an expert in occupational health and safety, to give his opinion on the cleaning practices of the hotel. Having considered his qualifications, the nature of his experience, the length of time he had been working in the field and the number of reports he had prepared for court purposes, I allowed Mr. Lam to be treated as an expert witness.

17. He opined that the operation of the hotel kitchen and bakery near the accident site meant that, even in the absence of some substance, the floor could be slippery enough to cause an accident. He acknowledged the operation of a regular, routine cleaning schedule but considered that what was needed was a supplementary system whereby spills or contamination were reported for immediate cleaning. He said the success of such a system depended on the integrity of staff in reporting hazards and the speed and efficiency of the Housekeeping staff in responding.

18. Mr. Lam said the Defendant could have done two things to prevent such an accident. The first was setting up a supplementary cleaning system the success of which, he agreed, depended largely on worker education. The other was that the hotel should prohibit staff who had no valid purpose in being there, from using that section of the corridor for access to the lifts. Both suggestions were simple to implement and had no significant cost implications.

19. The Defendant attacked these suggestions as being impracticable and a counsel of perfection, but in my judgment they were commonsense measures that could have and should have been in place prior to the accident. There was no dispute that all hotel staff using the cafeteria could go to and from it and the nearby staff locker rooms and lavatories by whichever route they chose. Inevitably, because access to the lifts via the kitchen corridor was slightly shorter staff would prefer it. Ms. Pang Wai-ming (PW3) said in evidence that in her estimation 90% - 95% of staff used that corridor.

20. Defendant did not show why the measures suggested were impracticable, or why they could not have been implemented. Kitchen, laundry and delivery staff were the only people who needed to use that corridor and they were required to wear regulation footwear that protected them against the dangers of spills and contamination of the floor. Other staff might find the alternative route irksome because of a real, or perceived, increase in the time of their journey, but obviously the fewer people who had access to the corridor, the less the risk of accidents such as the one suffered by Plaintiff.

21. I find the Defendant is liable for this accident given its failure to take the measures suggested. I am not satisfied that the simple existence of signs, even accepting, which was not established, that they were in place at the date of the accident, was sufficient to absolve the Defendant from its duty of care to the Plaintiff to provide a safe workplace.

22. I do not find that Plaintiff was contributorily negligent. She was on duty and returning to her post by a route that was, and still at the date of trial is, accepted by the Defendant as a proper means of access to the lifts. The Chief Security Officer (DW2) confirmed that the Defendant has not prohibited staff from using this corridor. The Plaintiff was wearing low-heeled shoes and was returning to her post in ample time to travel by lift back to the front desk, a journey of a few floors. I do not accept that the Plaintiff told DW1 she was hurrying back to her post. That appears to have been one of several instances where he embroidered his evidence.

PLAINTIFF'S INJURIES AND TREATMENT

23. On visiting QEH Plaintiff was found to have diffuse back pain but no fracture. She was given 5 days sick leave (from 2-6 January 1994) and discharged. Leave was given at the Fanling Clinic from 8-10 January 1994.

24. On 11.1.94 Plaintiff visited Dr. Lee Po Chin who found tenderness over the low back, swelling around the sacral coccygeal region and limited trunk movement. He gave sick leave from 12-15 January 1994.

25. Between 19.1.94 and 19.2.94 she was seen by the hotel doctor who referred her to a physiotherapist. She attended 65 times for physiotherapy between 19.1.94 and 4.10.94.

26. Dr. Leung the hotel doctor gave leave over the period 19 January 1994 to 19 February 1994. During that period Plaintiff returned briefly to work on 30/31 January 1994. Dr. Leung declined to give sick leave after 19 February 1994.

27. From 12-19 February 1994, Plaintiff was given sick leave at the hospital clinic, and thereafter obtained sick leave certificates from Kwong Wah Hospital for the period 23 February 1994 - 1 March 1994.

28. Plaintiff consulted Dr. Kenneth Young in early March 1994 and four times thereafter. Initial examination revealed limited lumbar movements and tightness of back muscles for which medication was prescribed. Later Dr. Young noted slow but steady progress with pain recurrent with prolonged standing or walking.

29. Dr. K. Yeung issued sick leave certificates from 2 March 1994 to 31 March 1994. After that Plaintiff attended a herbalist who purported to issue sick leave certificates from 9 April 1994 to 2 June 1994.

30. The most extraordinary sick leave certificate was issued at Li Ka Shing Specialist Clinic. Plaintiff was given sick leave for 16 months from 1 June 1994 to 30 October 1995 with the bald entry "Back Injury" written as the reason. No report from the issuing Doctor was produced in relation to this certificate, nor was any explanation offered for the granting of such a lengthy period of sick-leave without, apparently, any interim check or follow-up being required. In the absence of any report from the issuing doctor it is not even clear whether the "Back Injury" referred to the original fall, or some intervening event. Certainly, given the Physiotherapist's assessment in October 1994 it is difficult to accept there was any genuine reason for the issue of a certificate for such a lengthy period.

31. At present Plaintiff complains of a number of disabilities. These were noted in Dr. Arthur Chiang's report of 16.5.98 as tightness in upper back and pain in low back on walking more than two or three hours; able to stand only about 1 hour; backache after 10 stairs; backache on carrying more than 5 lbs.; back pain on change of weather; mild back stiffness on rising; nausea on severe back pain; occasional neck pain and an area of depression of the left scapula.

32. Dr. Chiang found no obvious neurological deficit in the lower limbs, nor significant limitation in the range of movement of the low back. SLR tests were normal. There was no intersegmental stiffness or muscle spasm. Plaintiff had satisfactory lumbar lordosis.

33. X-rays confirmed that she had a scoliosis of the thoracic spine which was idiopathic i.e. acquired between the ages of 12 and 18 years. The curve was mild, about 15 degrees and should, in his view, be asymptomatic. He considered that her prolonged course of treatment may have been due to the pre-existing scoliosis.

34. He considered that Plaintiff may not have significant back symptoms on performing daily or manual activities, but that some episodes of relapse of the back symptoms was possible.

35. Percentage of whole person impairment was suggested at about 3%. He considered that recovery was satisfactory and that Plaintiff should be able to work in her pre-injury type of job. He suggested a 5% loss in Plaintiff's earning capacity.

36. In evidence he said that Plaintiff's back symptoms could return if she held a stressful posture for a long time, if she did unaccustomed lifting of heavy objects or was working in a busy season for a particular job. He believed that Plaintiff could return to a different form of cashier's job, perhaps in a smaller hotel, or in a restaurant. He pointed out that there were no good guidelines for assessing loss of earning capacity and that his 5% was a very rough estimate. By long hours of standing he said he meant around 4 hours duration.

37. He was unsure of the effect of a second fall a few days after the first (an allegation Defendant advanced and Plaintiff denied) but said that it might have aggravated Plaintiff's symptoms. His view was that because of the scoliosis, 6-12 months sick leave would be needed, not the 1 to 3 months suggested by the Defendant's doctor.

38. Dr. Tsoi Chi Wah examined Plaintiff on behalf of the Defendant on 3.7.95. He had available to him all the Plaintiff's medical reports, but not the reports of the physiotherapist. He agreed in evidence that those reports would have been helpful. The Plaintiff complained to him of back pain in the thoracic and lumbar regions and occasional pain over the right thigh. The only physical symptom he noted was tenderness at the apex of the scoliosis (T6-T7) and at the lumbar region (L4-L5). He did not consider the tenderness at T6-T7 was likely to be related to the injury and said that the lumbar tenderness may, or may not, be. The tenderness was considered very mild and Plaintiff had a full range of back movement.

39. He considered it impossible to tell whether the symptoms Plaintiff reported to him were related to the injury. He said, accepting a genuine injury, it should be very mild and complete recovery would be expected. He assessed residual pain as 1% impairment of the whole body and loss of earning capacity at 5%. He considered the appropriate period of sick leave for a simple sprained back would be 1 to 3 months.

40. Dr. Tsoi reported that Plaintiff should be able to resume her pre-injury job as cashier or sales lady, although she might be handicapped by residual back pain if such jobs required lifting heavy weights or bending of long duration. He defined as heavy, weights of more than 30 kilos and gave as an example of lengthy bending a task such as floor cleaning. He did not consider that 4 hours continuous standing would present a problem and said there was no reason why Plaintiff could not do jazz dancing for up to 30 minutes at a time.

41. He said that someone with scoliosis could experience occasional attacks of back pain even without any injury. His assessment of 5% loss of earning capacity took account of the scoliosis; without it his assessment was 3%. In cross-examination he said he had been told by Plaintiff that prior to the fall the scoliosis was asymptomatic.

42. He pointed out, as had Dr. Chiang, the degree to which a doctor must rely on subjective remarks and answers in assessing a patient. He detected no obvious signs of injury during his examination and while he could not say that Plaintiff was malingering, he felt she was exaggerating her symptoms. He accepted she had had an injury which resulted in back pain, but in his opinion Plaintiff had recovered to a considerable extent and he believed she was exaggerating her symptoms. When asked why he had not reported his belief, he said it was possible to deduce this from his report. He said he would be reluctant to include a definite finding unless, for example, he had a videotape which established it.

43. Dr. Leung, the hotel doctor, gave evidence of his treatment of Plaintiff post-accident. Dr. Tsoi said that Dr. Leung was the best person to comment on the state and progress of Plaintiff's back at that time. Plaintiff was on sick leave given at Fanling Clinic up to 11.1.94 and by Dr. Leung up to 29.1.94. She visited Dr. Leung on 19th, 21st, 24th and 27th January 1994. On the next visit, on 31st, Dr. Leung recorded that she had minimal residual pain and no sick leave was given.

44. On 2.2.94 the clinical notes show that Plaintiff visited Dr. Leung again - the entry reads: "fell down in bathroom at home on 1.2.94. Pain became severe having returned to work earlier. Sick leave 2-4" Plaintiff denied she had ever had such an accident, or told Dr. Leung she had.

45. Dr. Leung was not an entirely satisfactory witness and I did not accept he had, as he purported to demonstrate, almost total recall of what was said to him by the Plaintiff 5 years ago, particularly as he took minimal notes and was running four medical clinics at once. He had done very little by way of clinical examination; the most helpful thing he did was to refer Plaintiff to the physiotherapist. Having done so however he appears to have paid little or no attention to the comments of the physiotherapist which were at odds with his assessment of Plaintiff's condition.

46. Apparently friction developed between the Plaintiff and the hotel over her return to duty. Eventually Plaintiff was dismissed by the hotel which appeared unhappy with the prolonged sick leave she was taking or trying to take. Dr. Leung's view was that the second fall had retraumatized, or aggravated Plaintiff's back condition. The hotel insisted on the Plaintiff returning to work or producing a sick leave certificate. The Plaintiff thereafter seems to have embarked on a round of doctor's visits, as a result of which she managed to obtain sick leave for a lengthy period, although not from Dr. Leung.

47. The physiotherapist's notes and reports are helpful as being the observations of one person who examined the Plaintiff close to the time of the accident, including the period of the alleged second fall. The notes produced run from 19.1.94 to 4.10.94 at which point the Plaintiff is on maintenance physiotherapy only. At the previous appointment on 24.8.94 the Plaintiff is noted as being in 'good condition'.

48. Steady improvement is recorded over the period. A note on 27.1.94 states that Plaintiff is 'steadily improving' but 'an increase of back pain' is noted at the next visit on 2.2.94, the day after the alleged second fall, although the cause of the increase in pain is not recorded, by the physiotherapist. The last of three reports made by the physiotherapist to Dr. Leung as referring doctor, was dated 4.2.94. It says that although back and thoracic pain has decreased there is still quite a lot of tenderness in the lumbar and thoracic muscles. Further physiotherapy was recommended as well as a few more days of rest at home.

PSLA

49. Plaintiff's injury from the fall at work was categorised as a sprained back. She suffered no fracture, dislocation or compression of the spine. The injury was a soft tissue contusion which, in the normal course of events, required only conservative treatment. No permanent injury was expected.

50. The Plaintiff had a pre-existing scoliosis which, the doctors agreed, made it likely that the healing process would be slower than usual. Taking that into account, Dr. Chiang, for the Plaintiff, considered that treatment was likely to take 6 months to 1 year while Dr. Tsoi, for the Defendant, was of the view that 1-3 months would be adequate.

51. Both doctors agreed that a retraumatization of the original injury by a further fall in the bathroom could slow the healing process. I accepted Dr. Leung's entry in his notes of 2.2.94 as representing what Plaintiff told him, despite Plaintiff's denial.

52. I could see no cogent reason why at that time Dr. Leung would invent such an entry; nor why the Plaintiff, whose task it was to carry the sick leave certificate to her supervisor, would have allowed such an error to stand, if in fact she had not told Dr. Leung of such an incident.

53. Even allowing for any such retraumatization the combined effect of the falls appeared to have subsided sufficiently by October 1994 for the visit to the physiotherapist to be for maintenance rather than for rehabilitation.

54. Plaintiff claimed substantial loss of amenities because of her inability to dance; the pain and suffering because of an abortion she sought inter alia as a result of back pain and also because her sex life had been affected.

55. I was not satisfied that any of these matters had been established satisfactorily either on the medical or any other evidence and declined to take account of them in assessing the amount for PSLA.

56. Dr. Tsoi's view, which I accept, was that at this stage there was no physical impediment, such as problems with flexion or limb extension, to Plaintiff's continuing to dance. I accept that she may not have been willing, or able, to dance for the 12 months after the fall but as I do not accept that her disability required more than that time for proper recovery, I am of the view that any claimed inability to dance at this date is more likely to be attributable to the scoliosis, or factors that have developed more recently.

57. Similarly, allowing as I have a 12 months period for proper recovery, I cannot see that Plaintiff's non-specific problems, with her sex life and her request for an abortion were in any way connected with her fall in January 1994.

58. The injury suffered by Plaintiff falls far short of the "serious injury" category described in Lee Ting-lam (1980) HKLR 657. The cases of Kwan Wing-sang v. Chi Chiu Engineering Co. Ltd. (1997) HKLJ 432 and Li Yuen-hung v. Yan Yuk-lan [1996] HKLJ 258 relied on by Mr. Sakhrani relate to more serious accidents with objectively measurable injuries requiring hospitalization and various forms of surgical intervention. I do not agree with Mr. Sakhrani that Plaintiff's injury approaches one half of the serious injury category. I award Plaintiff the sum of $150,000.00 for PSLA.

Loss of Earnings Pre-Trial

Pre-Trial Loss of Earnings

59. The evidence of DW3, Tsang Ka-keung, indicates that Yeung Wai-yan was a comparable worker for the purpose of assessing. Plaintiff's post-accident salary. Miss Yeung was promoted to Senior Cashier September 1994 and it was submitted for Plaintiff that she, similarly, would have been promoted before, or at the same time as Miss Yeung.

60. DW3 said promotion was not automatic and depended on factors such as potential, punctuality and performance. I do not accept that promotion for Plaintiff was an inevitable progression and so I do not take account of a possible promotion in assessing pretrial earnings.

61. I do accept that if she had remained in post that she would have received a salary increment and an annual bonus of at least one month's salary and probably two. Although the bonus was discretionary it seems it was paid out even in time of recession, albeit at a lower rate.

62. Having considered the evidence I accept that at the date of the accident Plaintiff's pay package was worth approximately $11,038.50 being made up as follows:

Basic Salary	7,870.00
Bonus (2 months salary approx.)	1,335.00
Free Meals: 40.00 p.d. x 26	1,040.00
Free Dental/Medical	400.00
Employers Pension Contribution:	393.50
	11,038.50

63. The amount for meals is estimated on the likely cost to Plaintiff if she had to buy 2 similar meals a day at an average restaurant. Ms. Lee Sau-yun, (D.W. 7) said the value of the staff meals was $10.00 per day, which, as the Defendant is an hotel, is probably correct. The proper measure however is what Plaintiff would have been required to spend to obtain similar meals at a café or restaurant. Ms. Lee said that cost was about $30.00 - $40.00 per meal in 1999. Making an adjustment for inflation I award a total of $40.00 per day.

64. The quantification for medical and dental expenses is an estimate of the likely cost to Plaintiff for such services in a year, whether by payment for visits, or by the cost of insurance premiums.

65. The value of the bonus per month is based on that paid to Plaintiff in January 1994 for the year 1993/1994. Mrs. Tsang Ka-keung, DW3 said that a similar bonus was paid each year to 1997. I note that the bonus was discretionary and that it could be cut in time of recession; however I consider it more likely than not that a 2 months bonus would not be unusual for an employee of Plaintiff's ranking.

66. Plaintiff claimed she had casual work as a jazz dancer at the rate of $1,000.00 for each performance and that she had 20 such engagements in a year. Apart from stating those facts in her witness statement and repeating them in evidence there is no other evidence to support this claim. There are no documents produced e.g. letters of engagement; pay slips; receipts; tax returns etc. which confirm the Plaintiff's assertion. Accordingly, I decline to take account of these paid performances in assessing Plaintiff's income at the date of the accident.

67. I am satisfied that Plaintiff did suffer another fall soon after the first fall and do not believe her evidence to the contrary. Recognizing the impossibility of apportioning recovery time between the two accidents however, I allow Plaintiff the maximum period of recovery suggested by Dr. Chiang and award her 12 months lost earnings.

68. Given the nature of the initial fall, the medical assessments and the comments of the physiotherapist I consider that any residual symptoms after 12 months, were more likely than not attributable to Plaintiff's scoliosis and/or the intervening fall in the bathroom.

Items of Special Damage

69. The Plaintiff claimed three items under this head in her Revised Statement of Damages dated 15 January 1999. Travelling expenses at $10,000.00 and medical expenses of $20,000.00 were accepted by Defendant without prejudice to its submission that they were not answerable for Plaintiff's loss beyond a maximum period of one year.

70. A claim for tonic food quantified in the Revised Statement of Damages at $50,000.00, was revised by Plaintiff to accord with the amount of $1,000.00 she had claimed in her witness statement. Defendant agreed to the revised amount.

71. I award the sum of $31,000.00 under this head.

Loss of Earnings Post-Trial

72. The work Plaintiff was engaged in originally was not physically demanding in the sense that prolonged bending or lifting of heavy weights was required. Both Dr. Chiang and Dr. Tsoi were essentially of the view that she could return to her pre-injury type of employment. The work Plaintiff describes herself as doing now is similar to the type of work she was doing for the Defendant.

73. She described her search for work in 1994 and 1996, but does not claim to have made any applications in 1995. Some posts were clearly not of a suitable nature, in others she was not offered the post or further interview, in some she told the employer of her back pain thereby ensuring she was unlikely to be employed. In other posts she worked for a short period but had to stop because of "heavy workload", although she did not explain how, for example, a part-time receptionist post could entail a heavy workload.

74. Plaintiff complained of the difficulties she experiences in her present post but given the nature of Plaintiff's injury in 1994, I cannot see that it has been established on the balance of probabilities that she is handicapped in the labour market as a result of the fall she had on Defendant's premises. At this stage if she is suffering the symptoms she describes, they are more likely to result from the fall in the bathroom and/or her scoliosis.

75. Plaintiff's cutting of her present working hours from 10 to 8 appears to be from personal preference - I note that her job with Defendant involved an 8 hour day. I do not accept that it is necessitated by symptoms that can be sensibly or reasonably attributed to the fall on 2.1.94.

76. The evidence of Dr. Tsoi and Dr. Chiang as to loss of earning capacity appears to be speculative and based on the Plaintiff's account of her symptoms at the time of examination, whether it be the 5% of Dr. Chiang assessment or the 1% assessed by Dr. Tsoi.

77. I decline to make any award under this head, on a percentage basis, but award a global sum of $50,000.00, to cover possible difficulties in re-entering the job market.

Loss of Earning Capacity

78. It is claimed that Plaintiff's post accident work record demonstrates she has difficulty in finding and keeping work and that her present job has had to be downgraded because of her disabilities.

79. I cannot be satisfied on the evidence that the downgrading of Plaintiff's job is due to anything other than Plaintiff's understandable reluctance to work a 10 hour day. Certainly I am not satisfied that any downgrading is attributable to symptoms resulting from Plaintiff's fall on Defendant's premises.

80. I decline to make any award under this head.

Summary

PSLA	150,000.00
Pre-Trial Loss of Earnings
12 x 11,038.50	132,462.00
Special Damages	31,000.00
Loss of Future Earnings	50,000.00
Loss of Earning Capacity	_________
	263,462.00

81. Interest on the award for PSLA at 2% per annum from the date of writ.

82. Interest on the awards for Pre-Assessment Loss of Earnings and Special Damages at 6.45% per annum from the date of accident.

83. Credit to be given to the Defendant for the sum of $207,036.94 received in ECC No. 342 of 1995.

84. There will be an order nisi for costs of the action in favour of the Plaintiff to be taxed if not agreed.

Representation:

Mr. A. K. Sakhrani, instructed by W.K. To & Co. for Plaintiff

Mr Herman Poon, instructed by Woo, Kwan, Lee & Lo for Defendant