Lam Shui Ngan v. Global Cheer Ltd and Another
Read the full judgment text of DCPI 2530/2007 on BabelCite. This District Court judgment.
1. In this action the Plaintiff claims damages for personal injuries she sustained in an accident against the Defendants; in turn the Defendants claim against the Third Party for indemnity against any award made in favour of the Plaintiff against them.
Cites 2 cases
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DCPI 2530/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 2530 OF 2007 -------------------- BETWEEN
-------------------- Coram : H.H. Judge Chow Date of Hearing : 27th, 28th, 29th July, 11th September, 2009 Date of handing down Judgment : 16th December, 2009 ________________________ JUDGMENT ________________________ 1.In this action the Plaintiff claims damages for personal injuries she sustained in an accident against the Defendants; in turn the Defendants claim against the Third Party for indemnity against any award made in favour of the Plaintiff against them. 2.The 1st Defendant was a cleaning company engaged by the 2nd Defendant to carry out cleaning works on the premises situate at Golden Lion Phase I, Nos. 5-7 Chui Tin Street, Shatin, New Territories (“the Site”), whereas the 2nd Defendant was the property manager of the Site. The Plaintiff was the employee of the 1st Defendant at the material time. The Plaintiff’s evidence 3.On 12.12.2004, the Plaintiff was in the employment of the 1st Defendant as a general cleaning worker. She was responsible for all general cleaning duties which included the cleaning and removal of garbage on all floors of Block B at the Site (“the Works”). The Site has 6 blocks. Each block has 29 floors: 25 residential floors and 4 floors of car park. The Plaintiff was only required to do the Works on the 25 residential floors. She had to pick up and transport black bags (provided by the 2nd Defendant) into a garbage dispenser next to the main entrance of Block B by using a transportation trolley (“the Works”). Block B had 2 staircases, and at each staircase there was a rubbish bin with a black plastic garbage disposal bag (“black bag”) fitted in. Residents disposed their garbage into the rubbish bin. The garbage was contained in white plastic bags provided by the 2nd Defendant. The Plaintiff had to tie up the tops of the black bags and transported them to the front of the lift. Each black bag (when containing garbage) weighs about 7 to 8 catties. 4.The black bags were taken into the lift floor by floor. Then they would be transported to the ground floor, and she would bring them one by one onto a trolley situated right outside the lift on the ground floor. On each occasion about 6 black bags would be placed onto the trolley. Then she would transport the trolley to the large garbage dispenser situated right outside the lobby. The garbage dispenser was about 4 feet high. She would pick them up one by one and put them into the garbage dispenser. She would bend her knees and use both hands to pick up the black bag. She would use one hand to hold the tie and the other hand to hold the opposite angle of the bag in horizontal position. Then she would raise the bag up and throw it into the garbage dispenser by raising and stretching both of her arms. 5.At about 11:00 a.m. on 12.12.2004, she picked up a black bag (“the Black Bag”) for the purpose of throwing it into the garbage dispenser. When she was raising it up, she noticed a leak on the top side of the Black Bag (near the edge and opposite to her body). Fearing that the Black Bag would break open and the garbage inside it would spill out, she immediately tried to embrace the Black Bag with her arms in order to prevent it from breaking open and the garbage inside it from spilling out. In the course of doing so, she sprained her back. Then she sat on the floor. The Black Bag had broken open and the garbage inside it had spilled out and spread on the floor (“the Accident”). The Plaintiff said that the Black Bag (when containing garbage inside it) was about 6 catties in weight. 6.There is no evidence to contradict the Plaintiff’s evidence. I find that the Accident did happen in the way described by her. 7.Before the Accident the Plaintiff had experienced the breaking open of black bags. This happened when they were being lifted up from the rubbish bin or in the course of transportation. But on this occasion the Black Bag broke open when it was being thrown into the large garbage dispenser. This is the first time of such incident. The complaints relating to the quality of the black bags 8.Since early 2001, the 2nd Defendant commenced to place black bags at the back staircases of each floor. The black bags provided at that time were of good quality and seldom broke open. In mid 2001 the black bags became easy to break open, causing the garbage inside them to be spilled out onto the floor, and the cleaning ladies had to clean it up. The Plaintiff and other cleaning ladies related this matter to Madam Ng Sai Mui (“Ng”) of the 1st Defendant and a Madam Leung (“Leung”) of the 2nd Defendant. However both Defendants failed to replace the black bags. 9.In about early 2004, a quantity of black bags were found to be too thin and could not be used. The Plaintiff and other cleaning ladies complained to the Defendants about this. The Defendants made a large scale replacement of the black bags. 10.In or about July or August, 2004, the Defendants supplied to the cleaning workers a quantity of black bags. But they were too thin and were easy to break open. The Plaintiff and other cleaning workers made complaint about this, but the Defendants did not make any replacement of these black bags. The Plaintiff recalled that the Black Bag involved in the Accident belonged to this quantity of black bags. Training provided to the cleaning workers 11.The Plaintiff was provided with a few days of on-the-job training when she joined the 1st Defendant in April, 2000. The training was to follow other cleaning workers and to learn from them the working skills and procedures. That was the only training she had. There was no training on when to split up the garbage by using 2 black bags or what should be regarded as the safe or appropriate weight of garbage for each black bag to hold. The evidence of Madam Mak Fung Hing 12.She is the witness called by the Plaintiff. She was a cleaning worker of the 1st Defendant. She said that before mid 2001 the black bags were very strong, but after mid 2001, they became easy to break open, causing garbage to spill onto the floor. She related the matter to Ng of the 1st Defendant. But there was only one occasion from 2001 to 2004 on which the black bags were replaced because of the complaints of the cleaning workers. 13.In her experience, the black bag would break open about once a month. This happened when she was raising the black bag with garbage from the rubbish bin, and when the black bags with garbage were transported from the rubbish bin to the large garbage dispenser. 14.She is an honest witness. I accept her evidence. The evidence of Ng Sai Mui (“Ng”) 15.Ng was the cleaning supervisor of the 1st Defendant at the material time. Formerly she was a cleaning lady, and was promoted to the position of a supervisor. According to her, the usual weight of the garbage contained in each black bag was about 7 to 8 catties. She said that only a few days of on-job training was provided to each newly recruited cleaning lady. There was no instruction relating to the proper weight of garbage to be contained in each black bag. 16.In early 2004 the cleaning ladies complained that the black bags were too thin. She found that this was true and she related this matter to Fok Hon Wai of the 2nd Defendant. She recalled that on one occasion after this incident, she found that the size of black bags were smaller than usual. She informed the 2nd Defendant about this matter, but there was no replacement of the black bags. The evidence of Mr. Fok Hon Wai (“Fok”) 17.Fok was the witness for the 2nd Defendant. He has been the estate manager of the 2nd Defendant since 2000. He said that the management works of the Site have been handled by the 2nd Defendant whilst the cleaning works of the Site have been handled by the 1st Defendant since 1987. The 2nd Defendant is a subsidiary company of the Chinachem Group. He placed orders for black bags through a Mr. Kwok Wah Fung, a manager of the Chinachem Group. Since August 2003 until the date of the Accident, all the black bags were provided by the 3rd Party. 18.The 2nd Defendant made a random check of the black bags. For each lot of 150 packs of 15,000 black bags provided by the 3rd party, the supervisors would randomly open a few packs and inspect the black bags inside. For each pack of black bags opened, the supervisors would pick out a few black bags for inspection. The size and quantity of the black bags would be checked. He said that the quality would also be checked. But he did not demonstrate how the quality was checked. Fok said that the random check was for safety reason because accidents might break out and injuries to the cleaning ladies might be caused if the black bags broke open because of inferior quality. He also stated that the spillage of garbage might cause injuries to the cleaning workers. 19.From 2001 to the date of the Accident he was only informed of complaints by the supervisors on one occasion in March 2004 on the inferior quality of black bags. This caused a large scale replacement in March 2004. The evidence of Chan Yuk Tong (“Chan”) 20.Chan was the supervisor of the 2nd Defendant. He would spend about 15 minutes on each occasion for random check of the black bags. He and a Madam Leung (another supervisor of the 2nd Defendant) were responsible for the random check of the black bags. For each quantity of black bags, by using a cutter he would open up 1 or 2 packs of black bags for inspection. For each pack he would pick out a few black bags for inspection for the quality. After the incident in March 2004 (the occasion when cleaning ladies complained that the black bags were too thin), he would pick out a few more black bags for inspection. The evidence of Tang Sheung Ngor (“Tang”) 21.Tang testified for the Third Party. The 3rd Party supplied black bags for use by the 2nd Defendant from 2003 to May 2008. It supplied black bags of size and thickness as requested by the Chinachem Group. If the black bags ordered were thicker, the price would be higher. There was one occasion in March 2004 on which the 2nd Defendant complained that the black bags were too thin and they were replaced. Liability 22.At common law an employer is under a general duty to take reasonable care of his employees in the course of their work. Such duty includes the provision of a safe system of work. This includes the provision of safe equipment for carrying out the work, and the giving of adequate provision for the safety of the employees. The black bags were provided by the 2nd Defendant to the 1st Defendant. They were the tools for the Plaintiff to remove the garbage from the back staircase to the large garbage dispenser outside the lobby. It was significant for the black bags to have the qualities fit for this purpose. This turns on the thickness, the rigidity and the size of the black bags, which would have to commensurate with the weight of garbage to be contained in each black bag. If the black bag was too thin to hold the garbage, it would simply break open, for being unable to stand against the pressure exerted by the garbage on it. 23.According to the evidence of Ng, Fok and Chan, there was a complaint that the black bags were too thin. As a result there was a large scale replacement of the black bags in March 2004. Ng further recalled that in early 2004 the black bags were improperly manufactured: the size of the black bags were smaller than usual. She informed this matter to the 2nd Defendant, but the black bags in question were not replaced. 24.There was only a few days of on-the-job training for the cleaning ladies. The Plaintiff just followed what her colleagues did in the past. There was no training on the appropriate weight of garbage each black bag could safely contain. There was no training on personal safety, including the training on how to handle the black bags (with garbage inside) or how to protect oneself should the black bags break open. After the implementation of the system of using plastic rubbish bin and black bags at the back staircase for the collection of garbage, Ng gathered up all the cleaning ladies once, and she advised them that if the garbage inside the black bag was too heavy, they should divide the garbage into 2 black bags. But she did not advise them on what was the appropriate weight of each black bag with garbage. The decision was left to the cleaning ladies. This could not be right. They must be told in the first place how much weight of garbage each black bag could safely hold, so that they could decide, in the course of working, whether to divide the garbage into 2 black bags. 25.The Defendants aver that the Plaintiff adduced no expert evidence to prove that the black bags ordered by the 2nd Defendant were too thin for the purpose of disposal of household garbage. Since November 2000, the 2nd Defendant ordered black bags from Wing Shing Trading Company. The specification for the bags is ‘PE 36” x 48” x 0.06’. So each bag is 0.06 mm thick. Then from August 2003 onwards, the 2nd Defendant placed the orders with the Third Party instead. The specification for the bags is ‘PE 0.05 mm x 36” x 48”’. Each bag is therefore 0.05 mm thick, but it was 0.01 mm thinner than before. According to Mak and the Plaintiff, the black bags broke open several times a year. On various occasions the cleaning ladies complained to the Defendants. 26.There was one large scale replacement of the black bags in March 2004, because of the thinness of the black bags. This shows that the Defendants were alerted that the quality of the black bags at that time was problematic. The question is: did the Black Bag broke open on 12.12.2004 because of its inferior quality, and as a result the Plaintiff sprained her back? 27.There are only three possibilities relating to the breaking open of the Black Bag in the Accident. One is that the hole on the bag was caused by a sharp object inside the black bag; as a result, the Accident has nothing to do with the quality of the black bag. But there is no evidence to show that this is the case. The other possibility is related to the size of the garbage. This cannot be the case, because each black bag was tied up on its top at the rear staircase. If there was any problem with the size of the garbage, it would have caused a hole to be made at the time the black bag was tied up. The third possibility is that due to its thinness, the weight of the garbage inside the Black Bag produced a great tension on the surface of the Black Bag when it was being lifted up and put into the garbage dispenser. The pressure created caused the surface of the Black bag to be torn open, thereby creating a hole on it. I find that the Accident did occur in this way. The Defendants say that the Plaintiff did not adduce expert evidence in this regard. It is sheer commonsense that the hole must have been created because the thin surface of the black bag could not withstand the pressure of the weight of the garbage inside the Black Bag and consequently, it was torn open. Such knowledge does not require to be proved by an expert. 28.I adjudge that the 1st Defendant was in breach of the employer’s duties in not providing black bags of quality commensurating with the weight of garbage contained inside the Black Bag, and in not providing safety measures and precautions to the cleaning ladies so that they could guard against any risks created when they were handling the black bags with garbage inside. The 1st Defendant was negligent under common law in not providing black bags of sufficient quality for the purpose for which they were used, and not providing training on personal safety to the cleaning ladies, so that they could know what to do when a black bag broke open. The liability of the 2nd Defendant 29.According to section 3 of the Occupiers Liability Ordinance (“the Ordinance”), the 2nd Defendant was an occupier of the Site, because as a manager it had actual control of the Site. Under section 3 of the Ordinance, an occupier of premises owes the common duty of care to all his visitors. This duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which be is invited or permitted by the occupier to be there. The Plaintiff was a lawful visitor of the Site within the meaning of the Ordinance. The 2nd Defendant was under a duty to ensure that the Plaintiff would be safe in using the Site for the purposes of carrying out the Works at the Site. 30.The 2nd Defendant entrusted the tasks of ordering the black bags to its head company Chinachem Group. There is no evidence that Chinachem Group imposed any monitoring system to ensure that the quality of the black bags was fit for the purposes they were used. The Black Bag used in the Accident was not of sufficient quality for the purposes it was used. If its quality had been sufficient when being used, it would not have broken open. Before the supplier of black bags was changed to the 3rd Party in August 2003, the black bags had a specification of 0.06 mm x 36” x 48”. But after August 2003, the bags had a specification of 0.05 mm x 36” x 48”. It was 0.01 mm thinner. Thinner black bags are cheaper. This change was intentional, and must have been done to save money. Apart from this, there is no justification to order black bags of a different specification. Because the black bags were 0.01 mm thinner, the quality must have been reduced. Their elasticity could not be as good as the former thicker black bags. The possibility of the surface being torn open (thus forming a hole) was enhanced. 31.The 2nd Defendant carried out no check on the quality of the black bags used by the Plaintiff. It also did not provide any safety precautions or training to the cleaning workers on what they should do when a black bag broke open. It did not make any assessment of the proper weight of each black bag with garbage to be transported by the Plaintiff. So it was in breach of the common duty of care as an occupier of the Site under section 3 of the Ordinance. 32.The Defendants argued that even assuming that the black bags provided for use by the Plaintiff were of inferior quality and/or were too thin in its texture, it was not reasonably foreseeable by them that this would cause personal injuries loss and/or damage to the Plaintiff in the way as alleged. The black bags were provided to the Plaintiff for use as garbage containers. If the quality of the black bags was not compatible with the weight of the garbage contained inside each black bag, it is obvious that it would break open. When it breaks open, the garbage inside would spill out, and if this is not prevented, the garbage may come into direct contact with the body of the cleaning worker, and may cause injury to the cleaning worker. In the course of preventing the garbage from spilling out from the black bag, the cleaning worker may react very fast as a natural response. In doing so, the cleaning worker may injure himself/ herself in the circumstances, such as twisting his/her leg or spraining his/her back. This is an injury indirectly caused by the breaking open of the black bag. All this is reasonably foreseeable. The Defendants should have envisaged that the inferior quality of the black bags would raise safety concerns. Fok rightly said that it was foreseeable that accidents and injuries might be caused to the cleaning ladies if the black bags broke open, due to their inferior quality. 33.The large scale replacement of black bags in March 2004 shows that the Defendants were aware of what the quality of the black bags was at that time, otherwise it would not have made such a replacement. The problem with the black bags at that time were that they were too thin. As a result they would easily break open. If there was no replacement there might be situations that the black bags would break open in the course of their being used. This includes the course of transportation of the black bags. Mak was involved in the daily garbage disposal works. She said that there might be situations when the black bags would break open in the course of transportation. 34.Under the circumstances of the present case it is reasonably foreseeable to foresee that there is a real risk of accidents and injuries caused to the Plaintiff when a black bag breaks open because its quality does not commensurate with the weight of garbage contained in it. This must be within the reasonable contemplation of the Defendants. Therefore the Defendants’ arguments cannot succeed. Contributory negligence 35.The Defendants pleaded the following contributory negligence on the part of the Plaintiff:-
36.The 1st Defendant only provided on-the-job training to the Plaintiff when she joined the 1st Defendant as its employee. She was simply adopting the usual procedures in her work. There is no evidence to show that she would, just before the Accident, foresee that the Black Bag would break open. She was not given instruction as to what weight of garbage each black bag could safely contain. There is no yardstick for her to decide whether the garbage inside the Black Bag was too heavy (thereby making the Black Bag too thin to hold the garbage). How could she be accused of failing to avoid overloading the Black Bag! How could she be accused of failing to discover that the Black Bag was too thin! It is wrong to accuse her of not carrying out the garbage disposal task safely, and to have discovered that the black bag in question was not reasonably safe for use. Paragraphs (a) to (d) have no merits. 37.When the Plaintiff noticed that there was a small hole on the black bag she intended to stop it from breaking open so that the garbage inside it would not spill out and dirty the ground. She must have thought that it was necessary to do that in order to achieve that result. It cannot be said that this was unnecessary. If she successfully did that without spraining her back, would the Defendants still accuse her of doing something unnecessary? Her decision to hold the black bag tightly was made within a very short time. It cannot be suggested that within that short span of time she would have reasonably appreciated any possible risk or injuries which might be involved. There is no evidence to show that just before the Accident that she knew that some risk and injuries might be involved if she grasped the black bag. So paragraph (e) to (f) cannot stand. 38.Based on the above-said, I conclude that there is no contributory negligence on the part of the Plaintiff. Liability relating to the 3rd Party 39.I have made a finding that the Black Bag must have broken open due to the weight of the garbage inside it which exerted pressure on its surface, causing a hole to be formed. There is no evidence to show that the quantity of black bags (which included the Black Bag) sold by the 3rd Party to the 2nd Defendant did not meet the specifications required by the 2nd Defendant. There is no evidence to show that the 2nd Defendant required the 3rd Party to sell to it black bags each of which was able to hold safely a certain weight of garbage. The 3rd Party did not know how much weight of garbage each black bag is to hold. The Black Bag broke open because the garbage was too heavy for the thickness of the Black Bag to endure. It was defective merely because it could not stand against the weight of the garbage inside it when it was being used. This is out of the control of the 3rd Party. How much garbage is to be put inside each black bag is a matter entirely up to the Defendants. The 3rd Party had no knowledge and no control over this. As a result it cannot be liable for supplying black bags of inferior quality to the 2nd Defendants. There is simply no basis for the 3rd Party to be held liable for the Plaintiff’s injuries. I dismiss the claim against the 3rd Party. Quantum of damages Pain, suffering and loss of amenities (“PSLA”) 40.The Plaintiff complains that she is still suffering from persistent low back pain. The physical disabilities found by Dr. Y.K. Lam and Dr. Johnson Lam generally conform with each other’s finding. In his medical report dated 27.3.2008, Dr. Johnson Lam found that the Plaintiff was suffering from: -
41.The report dated 7.2.2007 complied by Dr. Hung Kei Ching, of Prince of Wales Hospital (“PWH”), states:
42.According to the report dated 7.2.2007 of Dr. Ng Wai Hung of PWH, the Plaintiff was in satisfactory general condition, and there was tenderness on the lower back. 43.The report dated 26.2.2007 of Dr. Fung Kwai Yau of Tai Po Hospital says that “X rays of the spine showed normal alignment” and the Plaintiff “was able to walk independently”. 44.The physiotherapy report dated 22.2.2007 of PWH says, “After 18 months of treatment, she reported 80% improvement. There was mild occasional back pain. Her trunk mobility improved to end of range with minimum residual pain. Sensation was normal. She was able to walk for 1 hour.” 45.The Employees’ Compensation (Ordinary Assessment) Board (“the Board”) on 18.10.2006 assessed that the Plaintiff suffered 4% loss of earning capacity. On review on 21.3.2007 this assessment was upheld. Obviously the injuries suffered by the Plaintiff were not very serious. 46.In Chan Chung Keung v. Guerwall Limited trading as Conrad Hong Kong (HCPI 275/2005), the Plaintiff fell and landed on his buttocks. He suffered soft tissue injury with persistent back pain, left wrist pain and numbness in his left leg/thigh. He was diagnosed to have soft tissue contusion of the lower back which exacerbated a pre-existing weakness caused by natural aging process. The injury caused the Plaintiff to suffer from some psychological problems leading to impression. But he was able to carry out all activities of daily living and there was a real element of exaggeration of symptoms. The court awarded $180,000 for PSLA. 47.In Khan Shafiq v. Cheng Hip Ming DCPI 1378/2007, the Plaintiff was instructed to unload cartons of yearns from a go-down and load them onto a truck located a few metres away. In the course of lifting up a carton of yarns, the edge of the carton struck a wooden pellet on the ground, and his back was sprained because of that. The medical finding of examination on him is that he is expected to have mild residual back pain possibly with exacerbation from time to time upon heavy exertion or prolonged walking. The Court award him $200,000 under PSLA. 48.The Plaintiff’s injuries are more serious than the above 2 cases. However her claim of $360,000 for PSLA is excessive. The appropriate award should be $230,000. I grant the Plaintiff this amount for PSLA. Pre-trial loss of earnings and MPF 49.The Plaintiff was granted intermittent sick leave from 12.12.2004 to 30.7.2007. She was claiming compensation for 793 days. Dr. Johnson Lam in his report opined that the duration of sick leave issued by her treating doctors who assessed her from time to time was appropriate and should be endorsed. But Dr. Y.K. lam opined that generally speaking for soft tissue sprain injury, sick leave around 6 months should be reasonable. He considered sick leave to June 2005 to be reasonable. But he was referring to the sick leave generally given to patients suffering from soft tissue sprain injury, and not referring specifically to the situation of the Plaintiff; so I attach no weight to his comment for sick leave. The sick leaves granted to the Plaintiff were made by doctors who examined her from time to time. They were in the best position to decide whether sick leaves should be given to her. Unless it can be pointed out that a specified period of sick leave should not be given, I would not discount the sick leaves given to the Plaintiff. 50.The loss of pre-trial earnings and MPF of the Plaintiff at $170,608.20 ($272,600 - $110,116 + $8,124.2) for 793 days of sick leave was claimed. The Plaintiff resigned in early August 2007 after working for 1year. According to her, her back pain deteriorated. She could not stand the work. So she left employment with the 1st Defendant in August, 2007, by giving 7 day’s advance notice. Subsequently she issued the Writ in December 2007. I have to make a finding as to whether her back pain detericorated, and if so, whether it deteriorated to such an extent that she had to leave her job. According to the Trial Bundle, the last sick leave certificate granted is dated 27.7.2007. She was granted 4 days’ sick leave from 27.7.2009 to 30.7.2007. If the condition on her back was so serious that she had to leave employment, one would have expected her to receive medical treatment shortly thereafter. But there is no such evidence. 51.She resumed employment on 2 occasions. She resumed light duty with the 1st Defendant on 19.10.2006. She had low back pain and she attended the Shatin Clinic on 20.10.2006, and was given 3 days sick leave. She was admitted to PWH for a number of times from October 2006 to July 2007 for low back pain. She terminated her employment with the 1st Defendant in August 2007 by giving 7 day’s notice on 1.8.2007. Her last working date was 7.8.2007. 52.In early September 2008, she got a job as a security guard. But after working for 2 days she ceased working because of back pain. It must be such a pain which she could not stand up with. So she had to leave this job. But there is no evidence to show that she had any medical examination shortly after she had left this employment after working for 2 days. I final that the reason for leaving this job because of back pain is not genuine. 53.Dr. Johnson Lam opined that the Plaintiff should not be able to return to the full duties of her job that required at least medium physical demand on her back. As an alternative, she should be able to work in job requiring light physical demand on her back. Examples include being a salesperson selling light goods or a toll collector. Dr. Y.K. Lam opined that she is not expected to resume her pre-accident job because she may have difficulty in handling heavy objects. She will be more suitable for light duty jobs such as cashier, security guard or car park attendant. 54.She did not attempt other jobs involving light duties, which only require light physical demand on her back, such as a cashier. There is no explanation for this. There is no demonstration that she was not able to do jobs of this nature. In any event, she resumed employment with the 1st Defendant for 1 year, taking up light duties. For jobs which require even lighter physical demand on the back (for example, a cashier), she should be able to work longer. Because she has not made such attempts, there is no evidence to show that she was simply forced to cease her employment with the 1st Defendant due to the situation of her back. Hence her claim for loss of future earnings must be dismissed. 55.I rule that the alleged loss of earnings from August 2007 to the trial date cannot succeed. Her length of unpaid sick leave prior to August 2007 is 728 days. The award for the claim of pre-trial loss of earnings is $114,053.33 (728/30 x $4700). The MPF on $114,053.33 is $5702.66 ($114,053.33 x 5%). The total award is $119,755.99 ($114,053.33 + $5702.66). Post-trial loss of earnings and MPF 56.As said above, the Plaintiff did not try out jobs which do not require heavy exertion of physical force on her back. She resigned after resuming employment on 2 occasions. But there is no medical evidence to show that the conditions on her back were such that she could not bear the work and had to leave her job. The burden is on her to show that because of the condition of her back she was not able to do any work. She has not discharged that burden. Therefore no award is made under this head. Loss of earning capacity 57.As an alternative claim to loss of future earnings, the Plaintiff is claiming for a sum of $100,000 to represent the risk that she will lose her employment at some future time during her working life, and she will suffer financial loss because she will suffer disadvantage in the labour market due to her disabilities on the low back. 58.In Moeliker v A Reyrolle & Co. ltd [1977] 1 WLR 132, the Court said: -
59.Dr. Johnson Lam assessed the amount of loss of earning capacity related to the back injury to be 14%, and that the back injury should carry 11% whole person impairment. Dr. Y.K. Lam assessed the total impairment to be 4%. The Board confirmed on review its assessment that the Plaintiff suffered from 4% loss of earning capacity. There is no appeal on this assessment. I am bound by the finding made by the Board. 60.The Plaintiff has not been working for years. I simply cannot conclude that she will have to face of the risk of losing her job in the future, because there is no job to be lost. Secondly, her injury is not very serious. According to her medical expert, she could take up jobs which would not have much exertion on her back, such as a cashier. But she did not try this out. There cannot be any substantial risk that she will lose her job. So no award should be made under this head. Medical expenses 61.The sum of $1,523 claim by the Plaintiff under this head is not challenged by the Defendants. So I award the Plaintiff this figure. Travelling expenses 62.The Plaintiff claims $15,120, being taxi fares to and from PWH. She did not produce any receipt to support this claim. She agreed that she did not taxi to the hospital on each occasion. She did take mini-bus from time to time. So the claim is exaggerated. I would only award $10,000 for this claim. Tonic Food 63.The Plaintiff claims $5,000 under this head. There is no explanation offered as to why tonic food was required for back injury. I would award $3,000 under this head. Awards 64.The awards made by this court are summarized as follows:-
65.I order that the 1st and 2nd Defendants do pay to the Plaintiff, within 14 days from today, the sum of $364,278.99 with interests thereon: interests on the sum of $230,000 at 2% p.a., commencing from 12.12.2004 to 15.12.2009; interest on the sum of $134,278.99 at ½ judgment rate commencing from 6.12.2007 to 15.12.2009. Commencing from 16.12.2009 until satisfaction, interest on the sum of $364,278.99 at judgment rate. The 1st and 2nd Defendants do bear the liability to pay the Plaintiff at equal shares. Costs 66.I make an order nisi, to be made absolute within 14 days, that the Defendants do pay the Plaintiff costs of this action, to be taxed, if not agreed, with certificate for Counsel, and that the Defendants do pay the 3rd Party costs of this action, to be taxed, if not agreed, with certificate for Counsel. The Defendants do bear the liability to pay the above-said costs at equal shares.
The Plaintiff: represented by Mr. Danny Ng Pak Kin, instructed by M/S Tung, Ng, Tse & Heung, Solicitors. The 1st and 2nd Defendants: represented by Mr. Jenkin Suen, instructed by M/S Li, Kwok & Law, Solicitors. The 3rd Party: represented by Mr. Albert Cheung, instructed by M/S Huen & Partners. |
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