Ng Siu Cho v. The Incorporated Owners of Jardine Court

DCPI 976 /2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 976 OF 2005

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BETWEEN

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Coram:  Deputy District Judge S. T. Poon in Court

Dates of Hearing: 8^{th –} 9^th May 2006

Date of Handing Down Judgment: 6^th July 2006

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JUDGMENT

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Introduction

1.The Plaintiff (“P”) was employed by the Defendant (“D”) as a caretaker at Jardine Court (“the Premises”), a residential development situated at Jardine’s Lookout.

2.P alleged that, while he was on duty at the Premises on 22^nd January 2002, he slipped on the stairs and hurt his right arm and right knee.  At that time he was carrying a bucket of water for the purpose of watering some plants within the Premises.  P’s case is that watering those plants was part of his duty under the employment with D.

3.P sues D for negligence, breach of employment contract and breach of statutory duty under the Occupiers’ Liability Ordinance, Cap. 314  (“OLO”).

4.D disputes both liability and quantum.

Background

5.P had been serving for D since 1988, at the time of the accident he was 63 years old and now he is 67.  He usually started his shift at 7:30 pm and finished at 7:30 am the next morning.  Apart from being on guard at the main entrance of the Premises, his duties included also routine patrolling and watering plants.  There was another caretaker employed by D for the day shift and also a worker doing the cleaning works.

6.According to P, he had to water everyday the plants at the main entrance and also those situated at the corridors between different blocks.  In performing the latter duty, he had to fill up buckets of water from a water tap on the wall of a small lawn adjacent to the main entrance and carry them to the corridors.  As can be seen from photographs showing the said water tap and the main entrance, P had to descend 2 steps of stairs after filling up a bucket.

7.P said that he slipped at the time when he was descending the stairs and hit his arm against the frame of the gate causing his arm injured. P also said that the stairs were wet and slippery at the time and there was also some moss growing on it.  The accident happened at around 7:00 a.m.

8.After the accident, P went off duty at 7:30 a.m. and returned home.  He went to the hospital at about 9:30 a.m. and was seen by the doctor at the Accident and Emergency Department at about 10:00 a.m.

9.Upon examination, P’s right elbow was found to be swelling with tenderness and there was abrasion on the right knee.  X-ray taken on P’s right elbow showed fracture of the right head of radius.  P was treated conservatively and had to wear a long arm cylinder.

10.According to P, he had informed the day-shift caretaker of D of his injury by phone when he was admitted to the hospital.  P said the secretary of D, Mr. Chan (“Chan”), then made a phone call to the hospital and talked to him about the accident.

11.As there was no other worker to take his place, P returned to work 2 or 3 days after the accident with the arm cylinder on.  Chan told him to just sit at the office when on duty.

12.The arm cylinder was taken off after a week.  P continued working as the caretaker for the Premises until he was dismissed on 30^th July 2004 for reasons unrelated to this accident.  At that time D had already contracted out the management of the Premises to Stanhill Properties Ltd.  P was dismissed by them.

13.D disagreed that P’s duty included watering the plants at the corridors.The owners of those plants were individual residents of the Premises rather than D.  P was required under the employment only to water the four plants placed on top of the pillars at the entrance of the Premises and he had been instructed to use the water hose installed at the entrance to water those plants. 

14.D queried whether the accident did occur at the time and place and in the manner as alleged.  D also maintained that there was no negligence on D’s part and the accident was caused and/or contributed by P’s own negligence.

Finding of facts

15.Mr. Chan, counsel for D, submitted that P is not a reliable witness and his evidence is loaded with inconsistencies.  He set out under paragraphs 2(a) to 2(l) in his written final submission various areas of P’s evidence that he submitted would render P’s evidence unsatisfactory and unreliable.

16.I share the view of Mr. Chan to the extent that there are indeed quite a number of inconsistencies in P’s evidence.  However, the inconsistencies complained of are mainly between the evidence given by P in court and what was stated in the pleadings and solicitors’ letters of P, in relation to the details of what had happened on the material day (e.g. there were 2 steps or 3 steps on the staircase, the size of the bucket used, P hit his arm on the door or the frame and etc.).

17.I have observed P giving his evidence in court.  P impressed me as an unsophisticated witness who was ready to give a straightforward answer to whatever questions posed to him.  Leaving aside the abovementioned inconsistencies as to details, his physical injuries are consistent with his account of the accident.  To suggest that P had invented the accident would be a mere speculation without evidential support.

18.Whilst I note the importance of pleadings in a civil dispute and the significance of solicitors’ pre-trial letters, there are possibilities of miscommunication between P and his solicitors in the course of preparation of this litigation, given the limited educational background and relatively old age of P. 

19.I am of the view that P is an honest witness.  I am satisfied that the accident was happened in a manner as described by P in his evidence in court.

20.I have heard also the evidence of Mr. Sze and Mr. Yu giving evidence for D.  Mr. Sze was and is the chairman of D, Mr. Yu is an officer of Stanhill Properties Ltd.  I am also satisfied that they are honest witnesses.  However, as regard whether P has a duty under the employment to water the plants at the corridors, the evidence of Mr. Sze is different from that of P.  

21.Mr. Sze said that his main purpose of taking up the post as chairman of D was to supervise the major renovation on the Premises.  He spent little time in the matters concerning the work of the caretakers and did not know what expenses D had to pay for the plants in the Premises.  These matters were the responsibilities of Chan.

22.I am of the view that Mr. Sze was not familiar with the routine operations of D including the duties of the caretakers.    In so far as whether P has a duty under the employment to water the plants situated at the corridors is concerned, I prefer P’s evidence to Mr. Sze’s.

23.As regards Mr. Yu’s evidence, I am also of the view that he was uncertain about whether watering the plants situated at the corridors was part of P’s duty under the employment.  According to Mr. Yu, he would only visit the Premises for checking occasionally.  In his statement he said he learnt that the relevant plants belonged to the residents but he did not explain how he learnt about this.

24.I find that watering the plants at the corridors was part of P’s duty under the employment with D.

Liability

25.The particulars of D’s negligence and breach of duties are set out under paragraph 5 of the Statement of Claim which are as follows:-

(1) causing or permitting the Plaintiff to carry the bucket of water manually when it was too heavy for the Plaintiff to do so;

(2) causing or permitting the Plaintiff to carry the bucket of water down the stairs when the Defendant knew or ought to have known the same was slippery or otherwise hazardous for the Plaintiff walking on them;

(3) failing to take any or any sufficient steps to ensure the stairs would not be in slippery and hazardous condition;

(4) failing to provide and/or maintain the stairs as a safe means of access;

(5) failing to warn the Plaintiff about the danger of carrying bucket of water manually when watering the plants of the Development;

(6) failing to provide any or any sufficient safety measure or device to prevent the Plaintiff from getting injuries when watering the plants of the Development;

(7) failing to devise, institute and operate an adequate system, if at all, of inspection or maintenance of the Development whereby the risk or hazards associated with the stairs could have been identified and remedied before the accident happened; and

(8) exposing the Plaintiff to danger or slipping hazards and foreseeable risk of injury.

26.P had been using the same method to water the relevant plants for some period of time.  According to P, there were also many domestic helpers using the same way to carry water to wash cars.

27.D should have appreciated the risk that in the course of carrying the water through the stairs, the stairs would be made wet and slippery. D ought to have provided better devices, for instances, extended water hose, another water outlet, or relocating the water outlet to avoid such risk.  Besides, D should have instructed P not to fill up and carry water in this way.  Having failed to do the above, D was in breach of its duty as an employer under the implied term of the employment agreement and/or in law.

28.Besides, by allowing the stairs to have moss growing on it, D as an occupier was in breach of its duty owed to all lawful visitors including P.

29.Having found that D was negligent on its part, however, I am of the view that P should also be blamed for his own negligence.

30.According to P, he was well aware of the fact that the stairs were always wet with moss growing on them.  He could have taken precautionary measures to prevent himself from sliding.  He could have removed the moss.  There was a water hose readily for use to water the plants at the entrance.  P could have used that hose to fill up the buckets to avoid using the stairs when carrying water.  He was the best person to tell what weight he can properly lift.  He could have used a smaller bucket.

31.I conclude that P is 25% liable to his injuries.

Quantum

32.It is the common opinion of medical experts for parties that P suffered a serious pre-existing condition on the right elbow.  P admitted that he hurt his elbow when he was 6 years old falling from a tree.  The medical experts agreed that this previous accident caused a severely altered bony anatomy and the permanently dislocated ulnohumeral and radio-humeral joints in P’s right elbow.  The experts opined that P sustained only soft tissue injury to his right elbow and there was no fracture caused by the present accident.

33.The experts were however different in their opinions as to whether the present injury of P aggravated the pre-existing condition of his right elbow. 

34.Dr. Richard Poon, medical expert of P, opined that the soft tissue injury aggravated the pre-existing condition of P’s right elbow and caused it to become symptomatic with residual pain and paraethesia.  The soft tissue also caused weakness in P’s right forearm and hand and the existing range of motion of P’s right elbow was further limited as a result.  The wasting of muscles of the right hand and the pain at the ulnar aspect possibly was due to the soft tissue scarring and the right thumb weakness and inability to make a fist was caused by the injury of the tissue.

35.On the other hand, Dr. H. K. Lau, medical expert of D, opined that the pain, stiffness and decrease in the range of movement of P’s right elbow are entirely related to the severe injury at childhood and has nothing to do with the mild soft tissue injury resulting from the present accident.  Dr. Lau did not agree with Dr. Poon that P’s right upper limb was functioning reasonably well prior to the present accident. 

36.I am of the view that P’s right upper limb must have functioned reasonably well before the present accident.  Given that P had been working for D for nearly 20 years, should there be any significant weakness or limitation of movement occurred on P’s right arm, someone of D must have noticed it and testified as such in court.

37.I accept P’s evidence that he had worked at a Chinese style barbecue stall before and was able to use a heavy chopper to chop food everyday.  I accept also that he was able to perform lion dance and practice martial arts before the present accident.

38.As regard the post-accident condition of P’s right arm, P gave evidence that he can no longer function well with his right arm, now he cannot even cut food or use chopsticks with his right hand. Dr. Poon has the opinion that “the subject accident caused only soft tissue injury, adding mild pain, further stiffness, increased weakness and vague sensory deficit to the existing disability.”

39.According to Dr. Lau’s report, he found P performed submaximally at the examination because the range of movement of the right elbow should have been improved rather than deteriorated as demonstrated by P.  Dr. Lau opined that “the decrease in the range of movement of his right elbow is entirely related to the severe injury at childhood.” He did not go so far as to say that P was malingering.  On the contrary, it seems to me that Dr. Lau accepted that the range of movement of P’s elbow is decreased.

40.I accept that the range of movement of P’s elbow was substantially decreased after the present accident.

41.Mr. Lo, counsel for P, referred me to several cases on damages for pain, suffering and loss of amenties (“PSLA”).  However, P’s injuries are obviously less serious than that suffered by the plaintiffs in those cases.  Taking into account P’s injury on his right arm resulting in a limitation of movement and inability to take part in activities like martial arts and lion dance, I am of the view that an award of HK$150,000 is appropriate.

42.For pre-trial loss of earnings, as I accept that P was dismissed not because of his injuries, I do not see any such loss on the part of P consequential upon his injuries.  Although P was unemployed since after his dismissal, there is no evidence to suggest that he was unemployed because of his injuries.  I would award nothing under this head.

43.For similar reasons, I would also not award anything under the head of post-trial loss of earnings.  However, given the limited range of movement of P’s right arm, I am prepared to grant him awards for loss of earning capacity.  Considering the fact that P is of a relatively senior age, an award of HK$25,000 is in the circumstances appropriate.

44.For special damages, P did not adduce any evidence to substantiate his claims.  I would however award a reasonable sum on tonic food and traveling expenses.  I consider HK$3,000 is a reasonable amount for tonic food and HK$500 for traveling expenses.

45.The total amount of damages suffered by P would be HK$150,000 + HK$25,000 + HK$3,000 + HK$500 = HK$178,500.

46.As D is 75% liable to the damages, the award against D should be HK$183,000 x 75% = HK$133,875 and interests.  Interests will be awarded for general damages for pain suffering and loss of amenities at 2% p.a. from the date of the Writ to judgment.  Interests on special damages and loss of earning capacity will be awarded at half judgment rate from the date of the accident until judgment.

47.The amount of HK$125,418.94 already paid by D under the Employee Compensation Ordinance Cap.282 shall be deducted from the above award and judgment be entered against D accordingly.

48.Costs should follow the event.  There will be a costs order nisi that D pays the costs of P’s action to be taxed if not agreed, with certificate for counsel.  P’s own costs be taxed in accordance with the Legal Aid Regulation.  This order nisi will become absolute upon the expiry of 14 days from the handing down of this judgment.

Mr. Anthony Lo instructed by Messrs Ho, Tse, Wai & Partners for the Plaintiff.

Mr. Daniel K. K. Chan instructed by Messrs Waller Ma Huang & Yeung for the Defendant.