Wong Sau Lai v. Cathay Pacific Airways Ltd

HCPI 111/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 111 OF 2002

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Coram: Hon A Cheung J in Court

Dates of Hearing: 15 - 19 and 22 - 25 September 2003

Date of Judgment: 24 October 2003

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J U D G M E N T

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Common law action

1.The Plaintiff was born on 27 July 1970. She used to work as a legal secretary prior to joining Cathay Pacific as a cabin attendant in 1994. She remained in that rank until her resignation, which took effect on 11 January 2003. On 17 November 2000, she was on duty as a cabin attendant serving passengers in the aft "J" cabin (a business class cabin) on board flight no. CX500, a Boeing aircraft B777-300 operated by the Defendant en route from Hong Kong to Narita Airport in Tokyo, Japan. Whilst working in the aft galley in the business class cabin of the aircraft during cocktail service time, a drawer containing bottles of drinks fell on her right knee. It is the Plaintiff's case that the injury to her right knee prevents her from returning to her job as a cabin attendant. Therefore, after nine subsequent flights between November 2000 and March 2001 which she undertook with alleged difficulty, she was on sick leave continuously. Despite treatments, her condition did not improve but became permanent. The accident resulted in employees' compensation proceedings (DCEC 1004/2001) which were eventually heard before Her Honour Judge CB Chan in early December 2002. Shortly after completion of the trial and while judgment was pending, the Plaintiff put in her notice of resignation which, as mentioned before, took effect as from 11 January 2003.

2.On 17 January 2003, the learned district judge handed down judgment in respect of the employees' compensation claim. Amongst the several issues decided in those proceedings, the learned judge found as a fact that the Plaintiff "is not fit nor suited for the work of a cabin attendant" as a result of the injury to her right knee that she sustained in the accident in November 2000 (paragraph 23 of the judgment). The Plaintiff eventually found a job as an administrative assistant on 2 June 2003 at a monthly salary of $8,000, having failed to find any job in the legal secretarial field despite many applications.

3.This common law action, which was commenced in 2002, deals with the Plaintiff's claim for common law damages in respect of the accident in November 2000. I have heard, in the course of 9 days of trial, evidence from the Plaintiff as well as quite a few factual witnesses from the Defendant comprising a number of serving cabin crew of various ranks and people in charge of administration, employee services, service equipment logistics and operations and medical services, apart from 2 orthopaedic experts - one from each side. Liability as well as quantum are hotly in dispute. I shall deal with them in turn.

Liability

4.According to the evidence which is not really in dispute, the flight in question was manned by 10 odd cabin crew led by an In-flight Services Manager (ISM), a Ms Karen Young. So far as the aft business class cabin in which the Plaintiff worked at the material time is concerned, it was the responsibility of 3 cabin crew members, namely, a senior purser, a flight purser (who is lower in rank than the senior purser) and a cabin attendant (who is lowest in rank) - i.e. the Plaintiff. Although the guidelines issued by the Defendant suggest otherwise, I have no doubt that in practice, it was the senior purser and the cabin attendant who were responsible for cocktail service, which took place shortly after take-off, and it was the flight purser who was responsible for taking care of the meals, which would be served after the cocktail service. In my judgment, nothing really turned on this arrangement. Moreover, according to the evidence, and I so find, the Plaintiff as the cabin attendant was assigned the responsibility of taking care of the two bar carts in the aft galley (or galley no. 2) in the business class cabin, for the purpose of serving cocktails.

5.The bar carts in question were so-called half-size bar carts. At trial, I have been shown a similar bar cart. The bar cart, rectangular in shape, is about 4-foot tall. It is movable with wheels at the bottom. There are brakes to "park" the bar cart. When one opens the door of the bar cart which could only be opened on one side, one would find that the inside of the bar cart is divided more or less equally into the upper compartment and the lower compartment, separated by a horizontal panel fixed on the insides of the 2 vertical side panels and the vertical back panel. Drawers, as they are called, are placed inside both compartments. There are rails or tracks on the insides of the two vertical panels, and there are corresponding "protrusions" along the side edges of the drawers to fit the tracks or rails (with the exception of the "blue drawer" - see below). But apart from the rails or tracks, there are no stopping mechanisms installed either on the insides of the bar cart or on the drawers to prevent the drawers from falling off the bar cart if they are excessively pulled.

6.The present accident related to a so-called blue drawer. It is so called because it is blue in colour whereas the rest of the drawers inside the bar cart are greyish in colour. Apart from the colour, the blue drawer is different from the other drawers in terms of design in two material aspects. First, it is taller (about 6 inches in height), and secondly, the side protrusions of the blue drawer are along the bottom edges of the drawer rather than along the top edges. Because of the positions of the tracks or rails, and because of the location inside the bar cart where the blue drawer is placed (and was placed at the time of the accident), there are no corresponding tracks or rails inside the bar cart to fit the protrusions of the blue drawer. (Had there been side protrusions similar to the grey drawers along the top edges of the blue drawer, there would have been corresponding rails or tracks on the insides of the two vertical panels of the bar cart to fit the protrusions). The blue drawer is and was at all material times simply placed on top of the middle dividing panel separating the upper and lower compartments of the bar cart. It rests on its own weight.

7.Both the grey drawers and blue drawer inside the bar cart are for carrying bottles of drinks. The difference is that for the shorter grey drawers, the bottles are placed horizontally inside the drawers. For the taller blue drawer, because of its height, bottles are placed vertically. According to Cathay's specifications, there would be 13 bottles of different heights placed vertically inside the blue drawer. Therefore in those circumstances, although the surface areas of the two different types of drawer (measured horizontally) are the same, more bottles of drinks are carried inside the blue drawer than inside a grey drawer.

8.Whereas the bar cart is made of metal, the drawers are all made of plastic. They are rectangular in shape, and the blue drawer has large perforations. However, whilst an empty drawer is extremely light, a fully loaded blue drawer (as per loading specifications) weighs 13.5 kg.

9.It is the Plaintiff's case that on the day in question, after take-off, orders were taken by her from the passengers in the aft business class cabin. The cocktails were then prepared by her and the senior purser together. After preparation, the drinks were placed on a trolley, and she and her senior purser went out (with the trolley) to the cabin to serve the passengers. While serving cocktails in the cabin, a passenger asked for a drink (or a further drink), so the Plaintiff went back to the galley, squatted down and opened the bar cart door, and looked for the bottle of drink that the passenger had ordered. She found it at the far end of the blue drawer. Moreover, she also noticed that the blue drawer had become overloaded with bottles of drinks stacking between bottles. But apparently those bottles did not block the view of the bottle of drink that she wanted at the far end. So as per standard practice, using her left hand to hold the left front bottom of the blue drawer and using her right hand to pull the drawer out by less than one-third of its full length (i.e. 15 inches), or to be more precise as per her subsequent e-mail, 2.5 inches, she then used her right hand to reach out for the bottle she wanted from the far end of the blue drawer. As she did so, she heard the noises of glass bottles inside the blue drawer clinking and tilting, and before she realised what was happening, the bottles inside the drawer titled causing the blue drawer to topple and fall off the bar cart onto her right knee. Some bottles were broken and she suffered some minor cut wounds to her right knee and left middle finger.

10.In evidence, the Plaintiff insisted that she did not pull the blue drawer out by more than one-third. In fact, she confirmed that what she wrote in a subsequent e-mail to the Defendant's administration was correct, i.e. that she only pulled out the drawer by 2.5 inches, i.e. one-sixth of the length of the blue drawer. That also accorded with the demonstration using a similar bar cart and blue drawer that she gave whilst giving evidence at trial.

11.The Plaintiff said in evidence that when she first opened the bar cart, there were more than the standard 13 bottles of drinks inside the blue drawer, but perhaps the important thing is that the blue drawer was not then in the overloaded and improperly stacked condition that she later found it to be in just immediately before the accident. Indeed, it was her evidence that before she left the galley (after preparation of the cocktails) with the senior purser to do the cocktail service in the aft cabin, the blue drawer and the bottles inside were not in the condition that she subsequently found them to be in. In short, somebody must have messed up the blue drawer whilst she was away from the galley serving cocktails in the cabin together with the senior purser.

12.Having considered the evidence from both sides, having examined the bar cart and its contents at trial, and having borne in mind that the Plaintiff bears the burden of proof regarding how the accident happened, I am not satisfied that the accident happened in the way that the Plaintiff described it. On the evidence, I have no doubt (on the civil burden and standard of proof) that it was the Plaintiff, as the junior cabin crew member assigned to be responsible for the two bar carts in the aft galley, who broke the seals of the two bar carts, opened them, and verified their contents against the items listed on a document inside the bar file which was placed inside each of the bar carts.

13.I have great reservation about the Plaintiff's evidence that when she first opened the bar cart, she found that the blue drawer contained more than 13 bottles. According to the evidence from the Defendant's witnesses, it would be a very rare occasion when extra drinks were added into the blue drawer. But in any event, this would not be really material to the Plaintiff's claim, because as I understand it, the Plaintiff's eventual case about overloading is directed against the condition of the blue drawer that it was in immediately prior to the happening of the accident when, according to the Plaintiff, she found that more bottles had been stacked inside the blue drawer than she originally found it before she left the galley for cocktail service. Although she did not say it directly in her evidence, her suggestion would seem to be that because there were two bar carts, one in front of the other and their contents were different, somebody who had taken out a bottle from one bar cart might have, instead of returning it after use to the same bar cart, simply stacked it inside the blue drawer of the other bar cart for convenience, thereby overloading and improperly stacking the blue drawer in the second bar cart.

14.Significantly, it has been demonstrated rather conclusively at trial that the accident could not have happened in the way that the Plaintiff had described it. In other words, the blue drawer with all the bottles inside, would simply not topple and fall off the dividing panel of the bar cart if one merely pulled it out by 2.5 inches. Moreover, in their standard specifications and configuration (i.e. with the taller and heavier bottles at the far end of the blue drawer), the blue drawer would simply not topple and fall out of the bar cart even if it was pulled out by more than one half of its length. Conversely, even with all the taller and heavier bottles placed at the front and the lighter and shorter bottles at the far end of the blue drawer, it was only when the blue drawer was pulled out by one-third (5 inches) that it would start to topple.

15.More importantly, as again was demonstrated at the trial, assuming that there were some tall bottles placed at the middle section or back of the blue drawer, because of their heights and because of the presence of a grey drawer inside the bar cart above the blue drawer (and of course above the bottles of drinks placed vertically inside the blue drawer), the blue drawer would simply not topple until it was pulled out to a very significant extent (by comparison to its length). This was because the taller bottles at the back of the blue drawer would be caught by the bottom of the grey drawer above and would thus prevent the blue drawer (despite its weight and centre of gravity in the pull-out position) from toppling. Given the Plaintiff's own case that despite the overloading and the stacking, she could with no difficulty locate the bottle she wanted at the far end of the blue drawer, one could quite safely conclude that at least there were some tall bottles placed at the middle or back section of the blue drawer for otherwise, the Plaintiff would not have been able to locate the bottle she wanted at the far end and she would not have been able (as per her evidence) to reach that bottle at the far end by simply stretching her forearm in the bar cart.

16.According to the contemporaneous cabin safety report written by the ISM (Ms Young) whose evidence I have no difficulty in accepting in its entirety, the accident happened (as per the information supplied by the Plaintiff to Ms Young immediately after the accident) "when the drawer slipped from (the Plaintiff's) fingers, and dropped on top of her right knee". There was no mention of overloading, improper stacking or bottles tilting. Ms Young said in evidence that if any of those things - which would be against standard practice - had been reported by the Plaintiff to her as causing the accident in question, she would have remembered them and she would no doubt have described them in the cabin safety report. I prefer Ms Young's evidence to the Plaintiff's evidence that Ms Young did, after writing out the report, show the report to the Plaintiff who did not make any changes to the contents, before filing it with the appropriate department in Cathay.

17.Furthermore, even in the Plaintiff's own e-mail written to the administration not long after the accident, she did not say that the blue drawer was overloaded or was improperly stacked with bottles, although she did say that there were 15 to 20 bottles inside the blue drawer. There was no mention of the improperly stacked bottles tilting, causing the blue drawer to tilt and fall off the bar cart and hit her on her right knee.

18.In evidence, the Plaintiff simply could not tell the Court how exactly the accident happened, which would be something really strange if she had been doing her job at the time attentively. What I mean to say is that given the nature of the accident and how she described it to have happened, she must have been looking directly at the blue drawer and the bottles when she tried to reach for the bottle at the far end with her forearm, and she must have been in the best position to see how the bottles tilted and caused the blue drawer to fall. All she said now was that she heard noises of bottles clinking and the blue drawer suddenly fell on her right knee. Although there was some suggestion in the court documents filed that the bottles or at least some of them were stacked horizontally, in evidence the Plaintiff's case was that the extra bottles were stacked vertically. Given the very limited space inside the upper compartment of the bar cart which housed not only the blue drawer but the grey drawer above, it is extremely difficult if not impossible to figure out how the vertically stacked bottles should tilt before they could cause the whole blue drawer to tilt and topple and fall on the Plaintiff's right knee. For as explained above, even if one disregarded the taller bottles for a moment, the vertically stacked extra bottles would, once the blue drawer started to tilt (regardless of how it started to happen at all in the first place), have been caught by the bottom of the grey drawer above, and this would have the effect of preventing further tilting of the blue drawer.

19.Moreover, in evidence, the Plaintiff was never able to explain to this Court how, given the demonstrations referred to above regarding under what circumstances the blue drawer with its contents would tilt and topple, the accident could have happened in the way she described it.

20.I have not overlooked the fact that according to Ms Young's cabin safety report, the aeroplane was in its "climb" phase when the accident happened. But firstly, the climb phase was never referred to in the pleading as contributing to the happening of the accident. Nor was it mentioned in the Plaintiff's evidence as a contributing factor to the falling off of the blue drawer. Secondly, according to the Plaintiff's case, the blue drawer did not slide out from the dividing panel of the bar cart; it toppled. One would have thought that if the climbing or the gradient had anything to do with the accident, the blue drawer would have slided out first before it reached a stage that it started to topple. But that was not the evidence of the Plaintiff. She did not say that she felt that the blue drawer slid out and then toppled. She said that she heard the clinking sound of tilting bottles, which caused the blue drawer to tilt in turn.

21.Then there was this suggestion, which only became apparent during the course of the Plaintiff's evidence in court, that it was not the caterer but others on board the plane who caused the overloading of the blue drawer and improper bottle stacking. I must confess that up to that stage, having read the pleading and having heard counsel's opening, I was labouring under the impression that the Plaintiff's case was that the blue drawer was overloaded and improperly stacked with bottles by the caterer. In the pleading, there was no mention whatsoever of any other person (apart from the Plaintiff herself) who had touched the blue drawer or the contents inside, except the caterer. Mr Sakhrani, appearing for the Defendant, did not take any pleading point, but he complained, very understandably, that his side was at a loss as to the real case of the Plaintiff.

22.Be that as it may, the real or the eventual case of the Plaintiff was unfolded as she gave evidence and as the Defendant's witnesses were cross-examined. I think it is fair to summarize the Plaintiff's case, at the end of the day, as being that the bar cart had been botched up by one or more of the other crew members on board, there being no suggestion (and I would have no hesitation whatsoever in rejecting it on the evidence before me if any such suggestion was made) that it was a passenger on board who had messed up the bar cart.

23.However, having heard very detailed and perhaps repetitive examinations by both counsel of not only the Plaintiff but also the Defendant's witnesses (most of whom have much experience in flying as cabin crew members) about the usual practice and responsibilities of different crew members, I have no difficulty in concluding, particularly bearing in mind the burden and standard of proof, that the Plaintiff has not made out a case that the bar cart had been messed up by any crew members before the accident happened.

24.Very briefly, I do not think that it was the flight purser sharing the same galley for preparing meals who had botched up the bar cart. I accept the evidence of the Defendant's witnesses that at cocktail time, the flight purser must have been extremely busy with his or her own job, namely taking meal orders, coordinating with his or her counter-part in the other business class galley regarding the meals (the matter was complicated by the extra choice of a Japanese meal), and preparation for the service of meals (preparing the table, heating up the meals and so forth). Secondly, I do not accept the suggestion that it was the senior purser who messed up the bar cart. Even according to the Plaintiff's own case, it was the senior purser and she who jointly prepared the cocktails and then went outside together to serve them in the cabin. It was her case that before she left, the blue drawer was, put at the lowest, in a tolerable state. The Plaintiff and the senior purser were serving cocktails in the cabin when she had to return to the galley to prepare the extra drink ordered. So it could not have been the senior purser (who according to the evidence had been serving cocktails in the cabin throughout) who had returned to the galley to mess up the bar cart before the accident happened. Thirdly, as regards cabin crew members in the fore cabin, they had their own galley and bar carts to get the drinks, and the chances of their coming over to galley no. 2 to get drinks and mess up the bar cart there - all done without the Plaintiff's notice - were remote. As for those serving in the economy class, they were busy with their own cocktail service, they had their own bar carts, and although the contents in those bar carts were not exactly the same as that available in the business class bar carts, I have no hesitation in accepting the evidence from the Defendant's side that the estimated frequency of an economy class passenger insisting on having a drink that was only available in the business class was as low as once in several months. Moreover, the evidence was that if that did happen, the economy class passenger's request would only be entertained after the completion of the cocktail service in the economy class, when the cabin crew member responsible for the cocktail service in the economy class would have the time to go to the business class to fetch the requested drink for the passenger in question. Furthermore, according to the evidence, which I again accept with no difficulty, the usual protocol in that situation was for the economy class cabin crew member (or her senior) to inform those responsible for the business class galley in question first, before obtaining the required drink from that galley.

25.The conclusion I draw from the evidence is that if the blue drawer was indeed overloaded and improperly stacked with bottles as asserted by the Plaintiff, as a matter of elimination and drawing inferences, it was the Plaintiff who was responsible for the condition. Furthermore and more importantly, as I said, even if the blue drawer had been overloaded and improperly stacked, the accident simply could not have happened (i.e. the blue drawer simply could not have fallen off) if the Plaintiff had only pulled the blue drawer out by 2.5 inches or less than one-third of its length.

26.The Plaintiff said that the senior purser eye-witnessed the accident. Neither side called her to give evidence, but then Plaintiff bears the burden of proof. Furthermore, I am not sure on the evidence how the senior purser could have eye-witnessed the accident as she was supposedly (as per the Plaintiff's case) serving cocktails in the cabin at the time of the accident.

27.As I said, on the entirety of the evidence before me, I reject the Plaintiff's evidence on how the accident happened. The burden of proof is on the Plaintiff; it is not for the Defendant or for the Court to say or explain how the accident happened and identify the immediate cause of the accident.

28.But all is not lost for the Plaintiff. In my judgment, the Defendant is nonetheless partially responsible for the accident. As I said, the blue drawer with its full contents weighed 13.5 kg. During trial, I have tried its weight and am in a position to say that it was indeed a heavy drawer for me, not to mention an average Chinese female. Of course, due to consumption of the drinks by passengers, the weight would decrease, but then the accident happened in the early phase of the cocktail service, and in all likelihood, only the first few rows of passengers' cocktail orders had been prepared by the time the accident happened. (Incidentally, that is another reason why I do not believe the Plaintiff's story when she said that the senior purser asked her to go out together to the cabin to serve the cocktails that had been prepared. In my judgment, more likely than not, the senior purser would have wanted her to stay inside the galley to prepare the rest of the orders, which were prepared each time for several rows only to keep the cocktails fresh, whilst the senior purser, who according to the evidence, is very much a passenger-type of person and interacts well with the passengers, would serve the cocktails that had been prepared in the cabin alone. That would eliminate the senior purser as the person who had messed up the bar cart.)

29.As mentioned above, although there were rails and tracks inside the bar cart, and although the blue drawer had side protrusions along the bottom edges, they did not match, and the blue drawer was simply placed on top of the dividing panel, resting on its own weight. Common sense dictates that if it was pulled out excessively, it was liable to topple. Of course, the extent that the blue drawer must be pulled out before it would topple would depend on a number of factors, including how the different bottles were placed inside the blue drawer, the weight distribution of the bottles and their contents inside the blue drawer (and thus the centre of gravity of the blue drawer as a whole), the position of the upper grey drawer, the flying phase that the aeroplane was in and the relative position of the bar cart in the galley at the time, and so forth. However, the risk of the blue drawer falling off the bar cart is reasonably foreseeable. Of course, if all crew members handling bar carts follow the standard procedure that they have been no doubt taught and trained in handling bar carts, the risk of the blue drawers falling off would be minimal. But the possibility of crew members, because of work pressure and so forth, momentarily failing to follow the standard procedure is again reasonably foreseeable.

30.The danger to a crew member if the blue drawer does fall off the middle panel is again obvious, given the weight of the blue drawer and given the position or posture that the cabin crew are taught to adopt in pulling out the blue drawer. It is reasonably foreseeable that if the blue drawer should fall off, it would drop on the body of the cabin crew member.

31.As regards the possible steps to reduce the risk and the associated costs, according to the evidence before me, the risk would be greatly reduced if the blue drawer has similar side protrusions along the top edges like the grey drawers, to match the rails or tracks on the insides of the bar cart. They would have prevented the blue drawer from toppling and falling off unless it is excessively pulled out, which is really quite inconceivable if the cabin crew member has been paying any attention at all to her own safety. While the metal bar carts, according to the evidence, are supplied in standard-design by international suppliers who do not see fit to install any stopping mechanisms inside the bar carts, the drawers made of plastic are relatively cheap. There was evidence that each drawer would cost $20 odd. I would have thought that if extra side protrusions were added along the top edges of the blue drawer, it would not have increased the cost to any significant extent. And I doubt it very much whether the blue drawers cannot be locally obtained or obtained from factories in the Mainland at even cheaper prices.

32.Alternatively, the chances of a similar accident occurring would be greatly reduced if the blue drawer (as it is presently designed) was simply placed at the bottom of the lower compartment inside the bar cart instead of on the middle dividing panel; that would completely remove the risk of injury to any part of the body of the cabin attendant (except perhaps the toes) if the blue drawer should fall off the bar cart. I do not accept the evidence that placing the blue drawer at the lower compartment would increase bending and so forth of the cabin crew member. The simple reason is that in any event in the lower compartment grey drawers with drinks inside would be placed, and in order to get those bottles placed in the lower compartment from the bar cart, the cabin attendant would have to bend and kneel down in any event. I do not see how re-arranging the positions of the various drawers inside the bar cart would increase the bendings and workload of the cabin attendant. Common sense would dictate that one should place the heaviest drawer at the bottom of the bar cart. This would not cost the Defendant anything, but would effectively eliminate the risk of injury by a falling blue drawer.

33.Thirdly, there is room for increasing the height of the blue drawer. It would make it more difficult for the bottles inside the blue drawer to tilt or topple, thereby causing the blue drawer to tilt and topple. But that would increase the cost of the blue drawers to some extent.

34.I accept that on the evidence, this type of accidents is extremely rare, even assuming that this was not the first accident of this type to have happened. It is significant to note that none of the witnesses (including the Plaintiff) at trial has ever heard of a similar accident before (here I am concerned with the blue drawer falling off, rather than overloading and stacking which according to the Plaintiff's evidence were quite common I do not accept her evidence but prefer the evidence of the Defendant's witnesses which is to the contrary). In my judgment, this is more a compliment to the high standard and professionalism of the crew members of the Defendant, than a justification or excuse for not improving the set up or design of the bar cart and/or the blue drawer on the part of the Defendant. The risk is present, and it is not unforeseeable that due to work pressure, an emergency situation (such as air turbulence), a momentary lapse of concentration which is understandable, or perhaps sheer repetitions over time, that this type of accidents could happen. Indeed I note that in Cathay's own safety documents, they refer to the risk of overloading drawers and improperly storing glasses inside drawers as "common hazardous incidents". The point here is not whether these incidents illustrated in the safety documents represent actual incidents or are really "mock up" illustrations; rather the point is that this type of hazards is reasonably foreseeable.

35.So bearing all these specific points as well as the general circumstances in mind, I am of the view that the Defendant should be held responsible for the present accident.

36.In other words, I find for the Plaintiff on liability, but there is inevitably a substantial degree of contributory negligence here. As I have concluded on the evidence before me, the blue drawer could not have toppled and dropped on the Plaintiff's knee without her pulling the blue drawer out to an excessive extent and/or not supporting it properly with her left hand or forearm as per the standard posture. (On her own case, the blue drawer was overloaded and was improperly stacked with bottles, and on the evidence, I would find that if that really was the case she was the author of the messy condition; all this would of course be relevant to the question of apportionment of liability. However, for the purpose of apportionment, I am not prepared to make any finding that the blue drawer was indeed overloaded or improperly stacked with bottles (by the Plaintiff).)

37.On the other hand, I have of course not overlooked the very important fact that primarily it is the employer's duty to provide a safe place of work, as well as safe plant and equipment for the employee to carry out her employment reasonably safely. It is the employer's duty to give warnings and supervision.

38.Bearing all this in mind, and in particular, bearing in mind causation as well as blameworthiness in respect of the accident, I would apportion liability on the part of the Defendant and contributory negligence on the part of the Plaintiff at 50 : 50.

Quantum

(a) General observations

39.The Plaintiff was 30 years old at the time of the accident, and is 33 now. She suffered a right knee injury in the accident. It is not in dispute that she had suffered a right knee injury before in 1999 which resulted in a 2% loss of earning capacity assessed for employees' compensation purpose. She received physiotherapy and took sick leave, but prior to the accident, she had already returned to full time service.

40.As mentioned above, the learned district judge found, having heard evidence, including medical evidence from both sides, in the employees' compensation proceedings relating to the current accident, that the Plaintiff could not return to work as a cabin attendant because of her knee condition. Furthermore, she also found as a fact that the Plaintiff had

"recovered sufficiently from that injury (i.e. the earlier 1999 injury) to be able to work ... the fact that the healed injury to the cartilage of the right knee of the [Plaintiff] caused by the August 1999 incident caused the cartilage of the right knee of the [Plaintiff] to be more susceptible to injury, could explain why the [Plaintiff] suffered the injury and its effects in the accident in November 2000 even though the accident was less serious than that in August 1999."

She therefore concluded that the symptoms suffered by the Plaintiff were not that from a pre-existing condition (paragraph 16 of the judgment).

41.I am of the view that these findings of fact are binding on the parties for the purpose of the present common law action. I shall not repeat here the contents of the many medical reports that have been prepared in respect of the Plaintiff's condition and complaints. Apart from the findings made by the learned judge which are binding on the parties, I am of the view, based on the medical evidence from both sides as well as the factual evidence from the Plaintiff that have been adduced at trial, that the only real disability here is in relation to excessive climbing of stairs and squatting. I can accept that there is lingering aching pain from time to time, but in the absence of those excessive activities, the ache or aching pain is not constantly present or at least it is tolerable. I have watched surveillance video recordings of the Plaintiff's daily activities, and I have fully borne that in mind.

42.So far as the diagnosis is concerned, Dr Au, the orthopaedic expert called by the Plaintiff said this is a case of "right patello-femoral joint pain, status post right knee injury", whereas Dr Lam, the Defendant's orthopaedic expert, called it a case of "chondromalacia patellae" (with a pre-existing background). Dr Brockwell, another orthopaedic surgeon, gave the diagnosis of "anterior knee pain". In my judgment, these diagnoses are more a label describing the subjective complaints made by the Plaintiff, than an explanation for the symptoms themselves. The reality, in my judgment, is that none of the orthopaedic surgeons can give a very satisfactory explanation for the knee pain symptoms complained by the Plaintiff. The condition of chondromalacia patella could be a possible explanation or cause for the symptoms complained by the Plaintiff, but in my judgment, it is still not a very satisfactory one. In any event, I do agree that a lot of the complaints by the Plaintiff are rather subjective and difficult to verify, and do not sit very well with the surveillance video recordings in some aspects.

43.Bearing everything in mind, whilst firstly I must respect the findings made by the learned district judge which, as I said, are binding on the parties, and secondly I accept that there are genuine (albeit subjective) symptoms and complaints, the Plaintiff's condition is not as bad as she has presented it to be.

44.Moreover, the previous injury in 1999 has made the Plaintiff rather susceptible to further injury to the right knee. That would have the effect of affecting the various heads of damages that she is claiming in the present case. I have fully borne that in mind.

(b) Pain, suffering and loss of amenities

45.So far as pain, suffering, and loss of amenities are concerned, having heard counsel's very able submissions and considered the figures they put forward, in my judgment, a sum of $150,000 is reasonable and fair.

(c) Loss of congenial employment

46.So far as loss of congenial employment is concerned, I accept the Plaintiff's evidence that the job of a cabin attendant was her "dream job". I further accept that she eventually quitted her job with the Defendant because she thought that physically speaking she could no longer return to the job of a cabin attendant, which was indeed confirmed by the learned district judge's finding made in the employees' compensation proceedings. I do not think her refusal to undergo the rehabilitation programme offered by the Defendant (see below) is sufficient evidence to rebut her claim that a cabin attendant was her dream career. Rather, I am of the view that her refusal to undergo the rehabilitation programme was, in a word, caused by an over-defensive attitude adopted on her part.

47.The Plaintiff gave up a more highly paid job as a senior and experienced legal secretary and joined Cathay as a cabin attendant with a lower income. She was 30 at the time of the accident, and if the accident had not occurred, she would have been looking forward to another 15 years career as a cabin attendant, given a retirement age of 45, provided that she should not drop out for other reasons. (Of course, she only formally quitted in 2003 although she had stopped flying since early 2001.)

48.In those circumstances, I would assess damages in the sum of $120,000 for her loss.

(d) Loss of pre-trial earnings

49.Turning to her loss of earnings, I would adopt the following approach: in my judgment, the Plaintiff ought to have joined the rehabilitation programme, which comprised initial modified ground duties to be followed by short haul flights, with an ultimate aim to returning the Plaintiff to flying duties. To cut a long story short, the primary reason for the Plaintiff's failing to join the rehabilitation programme was her insistence that she could only be medically assessed by the Defendant for the purpose of employees' compensation. In that regard, in my judgment, she mixed up rehabilitation with employees' compensation. I do not accept her various allegations made against those responsible for administration in the Defendant who in my judgment, tried their best to reassure the Plaintiff that their requests for release of medical information, consent to access of medical information, a medical examination on the Plaintiff and so forth, were made only for the purpose of the rehabilitation programme. As can be seen from the correspondence, the Plaintiff however adopted a very defensive attitude from the outset towards all these approaches. No doubt the Plaintiff had employees' compensation (and ultimately a common law claim) in mind from a very early stage. Not that there was anything wrong with this, but unfortunately, in my judgment, it led to her adopting an over-defensive attitude towards the Defendant's approaches for the purpose of the rehabilitation programme.

50.I am not here saying that the rehabilitation programme in the present case would lead to a successful return of the Plaintiff to active flying duties. Given the finding of the learned judge which is binding on the parties, the rehabilitation programme would have eventually concluded, ex hypothesi, that the Plaintiff could not return to active flying duties, if the Plaintiff had agreed to undergo the programme. The Defendant has not adduced any evidence that in that event, the Defendant would relocate the Plaintiff to ground duties with no loss in income and so forth.

51.Accordingly, what I propose to do is to notionally assume that the Plaintiff would and should (reasonably) have joined the rehabilitation programme for a period of 6 months (say 3 months' ground duties and another 3 months' trial flying duties) at the latest starting from December 2001 (after the expiry of her annual leave), and thereafter she would have been retired by the Defendant on medical ground.

52.Furthermore, after her (notional) retirement from the Defendant, she should have found a job in the labour market, and I would give her 3 months to do so. According to the finding of the learned judge, the Plaintiff did not lose any capacity to earn an income as a legal secretary at the rate of $16,000 per month. Regardless of how that finding was arrived at, the fact is that there was no appeal from the finding, which is therefore binding on both parties. (Although this point was only seriously raised during final submission on behalf of the Defendant, no pleading point was taken, and it was fully debated on its substantive merits by both counsel.) In the employees' compensation proceedings, particularly in relation to section 9(1) and section 9(1A) compensation, the Plaintiff's extent of loss of earning capacity was very much in issue. What was important for the learned judge to find out was not only whether the Plaintiff could return to work as a legal secretary, but also, which was of even greater importance, the level of income that a legal secretary would be able to earn at the time of accident. For after all, one was concerned ultimately with finding out the Plaintiff's ability to earn in terms of dollars and cents from a particular job, and not only the Plaintiff's ability to do a particular job regardless of the level of income from that job. So in those circumstances, I have no difficulty in concluding, after reading the relevant part of the judgment of the learned judge and considering the ultimate award she made for section 9 compensation (by reference to the medically-assessed loss of earning capacity percentage only), that she was satisfied and found as a fact that firstly, the Plaintiff could return to work as a legal secretary with some brushing up of her own skills, and more importantly, that in that job she could earn $16,000 per month, which represented no substantial loss from the agreed pre-accident monthly income of $16,397.40 (paragraph 1 of the judgment). In other words, there was no question of any section 9(1A) assessment, and compensation for permanent partial incapacity under section 9(1) thus fell to be calculated by reference solely to the medically-assessed percentage for the non-scheduled injury (paragraph 24 of the judgment). As I said, the learned judge's findings are binding on both parties.

53.That being the case, I would proceed on the following basis: I would assume that when (notionally) the Plaintiff returned to the labour market, she would only be able to earn say $8,000 (which represents 50% of her actual earning capacity, and which is incidentally her present income), but given time, particularly time to re-train and to re-learn her former skills (see paragraph 22 of the learned judge's judgment), she would be able to earn $16,000 per month. Of course, here I have not overlooked the fact that when the learned judge referred to $16,000 per month, she had in mind the earning capacity of the Plaintiff as a legal secretary as of the date of accident (i.e. November 2000). Here, I am concerned with the pre-trial and post-trial losses of earnings of the Plaintiff. Although I have evidence from both sides regarding the levels of income since the accident, I am not persuaded that there has been any significant change in respect of the level of income of $16,000 (as found by the judge) between November 2001 and now. In other words, on the basis that the Plaintiff had an earning capacity of $16,000 as of the date of accident (as per the judge's finding), in calculating the pre-trial and post-trial losses of earnings here, I think it is still correct to adopt a figure of $16,000 per month.

54.I would give the Plaintiff slightly more than 2 years (to simplify calculations) to brush up her skills and reach her full earning capacity of $16,000 as found by the learned judge, i.e. by one year from the date of this judgment. At present, I would assume a monthly income of $12,000.

55.Therefore to recap, I would proceed on the basis that the accident happened in November 2000, she stopped flying in March 2001, she ought to have taken part in the rehabilitation programme in December 2001, she ought to have been compulsorily retired by the Defendant in May 2002, she ought to have started working and earning $8,000 per month in August 2002, and her (notional) income by now ought to have been $12,000 per month, which should increase (again notionally) to $16,000 in one year's time from now.

56.It is agreed that the Plaintiff, as a cabin attendant, was entitled to a basic monthly salary, line duty allowances, commission on in-flight duty free products, annual discretionary bonus, profit sharing, excess flying pay, out-port allowance, ex gratia incentive payment, transport allowances, travel benefits, retirement benefits, and medical and other insurance benefits.

57.I agree with counsel that the calculations of these various payments are extremely complicated and speculative. They would become even more complicated and speculative given the notional basis of computing the Plaintiff's loss that I have just mentioned above. There are many unknown elements which can never be satisfactorily ascertained or predicted. All this makes the present assessment more an art than a science, even in relation to special damages, not to mention future losses. I would therefore only use ballpark figures (in relation to amounts, durations etc.) in my calculations below.

58.On the evidence and on the figures proffered by counsel (which I would not go into details here - they have all been set out in the Amended Revised Statement of Damages and the Amended Answer), I have come to the conclusion that the difference between flying and not flying, in terms of the loss of various allowances (including the loss of the un-spent portion of the out-port allowance) would be in the region of $5,000 per month.

59.For the rehabilitation programme, as I said, 3 months would be for ground duties and 3 months would be for short haul flights. For the latter 3 months, I would reduce the loss to $2,500 per month.

60.Therefore the loss between November 2000 (accident) and May 2002 (notional compulsory retirement) is: $5,000 x 15 months + $2,500 x 3 months - $10,000 (the figure that I would adopt to represent the net gain by the Plaintiff from the various allowances from the 9 flights that she flew after the accident) = $72,500.

61.As from May 2002 to the present, I would, on the evidence, adopt an average income of $20,000 per month over that period of time. Thus the gross loss is: $20,000 x 17 months = $340,000.

62.From May 2002 onwards until the present, she ought, in reasonable mitigation, to have earned:

($8,000 + $12,000) ( 2 x (17 months - 3 months) = $140,000

63.Instead, she remained in the employ of the Defendant until January 2003, and she started earning $8,000 per month as from June 2003. Her basic salary was $12,732 per month. Therefore her actual income was in the region of:

$12,732 x (around) 8 months + $8,000 x 4.5 months

= $137,856

64.Furthermore, she received her annual discretionary bonus in December 2002 and profit sharing in March 2003. Some adjustments are obviously required to reflect these figures' significance in the period under consideration (i.e. May 2002 to the present). Doing the best I can, I would add another $20,000 to the previous figure as part of her actual income during the current period under consideration. In other words, the total actual income during the period was $157,856.

65.Since the actual income is greater than the notional income for the period from May 2002 to now, the actual income should be used in computing the net loss during the period. In other words, the Plaintiff's loss between May 2002 (notional compulsory retirement) and now should be $340,000 - $157,856 = $182,144.

66.Thus the total pre-trial loss is:

$72,500 + $182,144 = $254,644

(e) Loss of pre-trial travel benefits

67.As for the loss of travel benefits, the benefits themselves are not in dispute, and I shall not lengthen this judgment by setting them out here in any detail. In my judgment, based on the above findings and assumptions, before the notional compulsory retirement, there was a period of about 8 months (April to November 2001) in which the Plaintiff would be on sick leave and in the absence of permission from the Defendant, she would not be entitled to travel benefits. However, it was only for a period of 8 months, and this should not affect her annual entitlement to one round trip economy air ticket. All that one would be concerned with is her loss of concessionary tickets at a 90% discount (based on the evidence) for a period of 8 months. Thereafter, based on what I said above, she ought to have joined the rehabilitation program (in December 2001) and suffered no loss in travel benefits until her (notional) compulsory retirement in May 2002.

68.Furthermore, since in my assumptions above, the Plaintiff ought to have been retired by the Defendant on medical ground, she should not have lost totally her travel benefits after retirement. Rather, the annual free ticket would be lost and depending on her marital status, the travel benefits of her spouse/immediate family members would be more restricted, and the benefits would only last for a period of 10 years.

69.Again it is extremely difficult to actually calculate the loss, both past and future, in this type of situations, particularly when only the prices charged by Cathay Pacific for tickets supplied to the travel agents, but not the market prices of these tickets charged by the travel agents for sale to the public, have been adduced as evidence by the Plaintiff. A lot of guesswork is involved here. But I am satisfied that some past as well as future losses are involved.

70.Before I do the best I can to quantify the loss, there is one further complication. The Plaintiff as a matter of fact retired of her own volition as from January 2003. By doing so she is not entitled to any travel benefits after resignation at all. So if one simply compensates her for the difference in travel benefits as if she had been compulsorily retired on medical ground by the Defendant in May 2002, she would be under-compensated, because as a matter of fact, she resigned voluntarily and is now not entitled to any travel benefits at all. If this fact is ignored, it would result in a windfall, as it were, to the Defendant.

71.Having heard arguments from both sides, I am of the view that this would neither be fair nor necessary on the evidence and on principles. I would not conclude that the Plaintiff was unreasonable in choosing to resign from the Defendant shortly after the conclusion of the employees' compensation trial but before judgment was handed down. It was her case that she could no longer return to active flight duties. Her doctors and experts told her so. She was heavily criticized by counsel during trial in the District Court that she failed to look for another job. She was in litigation with her own employer who (wrongly) insisted that she could return to her flying duties. There was by then no further offer of any rehabilitation programme.

72.All in all, I am of the view that it was not unreasonable for her to have resigned by notice after the trial in the District Court. In those circumstances, I am of the further view that compensation for loss of travel benefits should not be calculated by reference only to the difference in benefits but by reference to the benefits themselves, given that retirement on medical ground in May 2002 was just a notional one and as a matter of fact, the Plaintiff resigned with no travel benefits whatsoever.

73.Doing the best I can, I would quantify the travel benefits in the sum of $30,000 per year for the pre-trial period (May 2002 to present). Add the partial loss of travel benefits for 8 months (of sick leave), I would assess a global figure of $60,000 as her total pre-trial loss.

(f) Pre-trial medical expenses

74.So far as medial expenses that have not already been reimbursed by the Defendant are concerned, I doubt the usefulness of some of the consultations, particularly given that the Plaintiff's condition has become permanent for some time. I would assess a global sum of $1,000.

(g) Pre-trial transportation expenses

75.As for the transportation expenses, bearing in mind the figures and my view on the usefulness of some of the consultations, I would assess a total sum of $6,000.

(h) Custom-made insole

76.As for the custom-made insole, which was bought upon Dr Brockwell's advice , I would allow it in the sum of $780.

(i) Loss of future earnings

77.As regards future loss, I would adopt a multiplier of 5, bearing in mind in particular the pre-existing knee injury and therefore susceptibility to accidents in any event, the high drop-out rate of cabin crew members (out of the 556 cabin attendants employed in 1994, 279 had left by 2002), and the retirement age of 45.

78.As for the multiplicand, I am not satisfied on the evidence that the Plaintiff would have been promoted to a higher rank had she not met the accident, given her performance in the past, given the promotion criteria adopted by Cathay since 1998, given the competition for promotion, given the economic situation and the change of Cathay's policy in terms of expansion, and given the Plaintiff's own pre-existing problem and the high drop-out rate.

79.Again there is much guesswork here. I take into account the discretionary bonus and profit sharing, which are not necessarily payable every year, according to the evidence before me, as well as the medical/other benefits here. I also bear in mind the varying nature of the Plaintiff's income as a flight attendant in general on the one hand, and the exigencies of the labour market on the other.

80.On the evidence, I would work on a figure of $21,000 per month as the Plaintiff's (notional) post-trial income if the Plaintiff had still been working with Cathy as a cabin attendant. I would therefore adopt an average multiplicand of $7,000 per month for the first year (when notionally her income should increase from $12,000 to $16,000) and $5,000 per month for the remainder of the multiplier of 5.

81.Therefore the loss is:

$7,000 x 12 + $5,000 x 12 x 4 = $324,000

(j) Loss of future travel benefits

82.As for loss of future travel benefits, if the Plaintiff had worked until 45, she would be entitled to limited travel benefits for the rest of her life. (And there are several other possible scenarios if she had left earlier.) Again there are quite a number of unknown elements here, which I will seek to reflect in the choice of multipliers. I have also alluded to the unsatisfactory state of evidence regarding ticket prices above.

83.Doing the best I can, as I said, I would adopt $30,000 per year as the annual loss for the rest of the time that the Plaintiff ought to have remained in employment with the Defendant, and a figure of $25,000 per year at a multiplier of 10 for post-retirement benefits. In other words, I use a total multiplier of 15 for the Plaintiff who is now 33. Thus the loss is:

$30,000 x 5 + $25,000 x 10 = $400,000

(k) Loss of retirement benefits

84.As for the loss of retirement benefits, bearing in mind the figures I adopted above, particularly in relation to the Plaintiff's notional earning capacity of $16,000 as a legal secretary and the retirement benefits that she has already received from Cathay and would receive from her notional job, and bearing in mind that in any event in calculating this sort of loss of retirement benefits, a very substantial discount will have to be made to take into account accelerated receipt, uncertainties of life and so forth, I would assess a lump sum of $300,000 here. Given the number of unknown factors and the substantial discount for accelerated receipt etc., the loss is simply not capable of sophisticated calculation in any meaningful way. In my view, the claim of over $600,000 by the Plaintiff in her Amended Revised Statement of Damages is far-off the mark.

(l) Future medical and transportation expenses

85.As for future medical and transportation expenses, given my views on the actual condition of the Plaintiff, I would simply assess a nominal sum of $5,000.

(m) Interest

86.Finally, as regards interest, subject to the reduction and deduction of damages (see below), I would award interest at 2% per annum for the award of pain, suffering and loss of amenities from the date of writ (8 February 2002) up to the date of judgment and thereafter at the judgment rate. Likewise, I would also award interest at half the judgment rate for pre-trial losses from the date of accident (17 November 2000) up to the date of judgment, and thereafter at the judgment rate.

(n) Summary of gross damages

87.The above assessment, subject to reduction and deduction (see below), may be summarized thus:

(1)	PSLA	$150,000
(2)	Loss of congenial employment	$120,000
(3)	Loss of pre-trial earnings	$254,644
(4)	Loss of pre-trial travel benefits	$60,000
(5)	Pre-trial medical expenses	$1,000
(6)	Pre-trial transportation expenses	$6,000
(7)	Custom-made insole	$780
(8)	Loss of future earnings	$324,000
(9)	Loss of future travel benefits	$400,000
(10)	Loss of retirement benefits	$300,000
(11)	Future medical and transportation expenses	$5,000
		$1,621,424
		=========

(o) Reduction and deduction

88.The total award has to be halved to take into account my finding of 50% contributory negligence. The reduced figure is $810,712. Further, the employees' compensation received in the total sum of $23,612 should be deducted from the reduced total, resulting in a net sum of $787,100.

Order

89.I order that judgment be entered on the Plaintiff's claim in the sum of $787,100, together with interest as indicated above. (For calculating interest, the employees' compensation should be treated as having been deducted from the special damages as reduced).

90.As for costs, I make an order nisi that the costs of this action be paid by the Defendant to the Plaintiff, to be taxed if not agreed; and the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91). Unless either party applies to vary it within 14 days after this judgment is handed down, the costs order nisi shall become absolute upon the expiry of the 14-day period.

91.Finally, I would like to thank counsel on both sides for their helpful assistance.

Representation:

Ms Christina Lee, instructed by Messrs K F Chan & Co., assigned by Director of Legal Aid, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs Stevenson, Wong & Co., for the Defendant