Limbu Jas Maya v. H K Scafframe System Ltd
Read the full judgment text of DCPI 2790/2008 on BabelCite. This District Court judgment was delivered on 20 May 2010.
1. The Plaintiff (“ Limbu ”) was a general labour of the Defendant (“ the Company ”) when the trip-and-fall accident happened on 21 March 2006. As a result, Limbu has suffered head and shoulder injuries. For those, she commenced the present action claiming for damages. Both liability and quantum are in dispute.
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DCPI 2790/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 2790 OF 2008 ____________ BETWEEN
____________ Coram: His Hon Judge Leung in court Date of hearing: 18-20, 23 November 2009; 25 January 2010; 8 February 2010 Date of judgment: 20 May 2010 J U D G M E N T 1.The Plaintiff (“Limbu”) was a general labour of the Defendant (“the Company”) when the trip-and-fall accident happened on 21 March 2006. As a result, Limbu has suffered head and shoulder injuries. For those, she commenced the present action claiming for damages. Both liability and quantum are in dispute. Background 2.The Company at the material time carried on and still carries on the business of supplying metal scaffolds for use in construction sites. Limbu is a Nepalese. At the time of the accident, she was 57 years old and had been working as a general labourer for the Company for about 8 years. Limbu does not speak Chinese. Her co-workers called her by her Chinese nickname ‘肥媽’ (or ‘Fat Mom’). They had been co-workers for years. 3.The Company has a storage yard at Yuen Long, New Territories. The storage yard occupies a vast open area. On one side, there was a container that has been adapted and used as an office. People and vehicles could make use of an unpaved driveway to get to the inner part of the yard. Along both sides of the driveway, metal scaffold parts and accessories, including frames and jacks, were stored in piles. At the end of the driveway is a shed under cover. 4.Inside the shed, there were some containers including one that has been used by the workers to take rest in. The female workers also used that as a changing room. Different works on the scaffold parts and accessories were carried out in the shed. 5.Due to their heavy nature, the scaffold parts and accessories would be transported to and from the storage yard by the Company’s own trucks or the contractor’s trucks. These were normally trucks with crane. The scaffold parts consisted of, among other things, jacks for the scaffold structures. A jack is a metal rod with screw grove and a metal plate at one end. They were either head jacks or base jacks. The jacks were normally returned in lots with each lot tied onto a wooden pallet. Accessories such as the connection pins were normally contained in bags. 6.At the material time, 4 workers worked in the shed regularly. Limbu and another female worker, Tai Kam Lan (“Lan Tse”), as a team mainly worked on the jacks. Kwok Yiu Tong (“Kwok”) and Yeung Wai Hung (“Yeung”) carried out sawing and welding work. 7.It was the job of Limbu and Lan Tse to sort the scaffold parts and accessories returned from the construction sites. Jacks that were bent or stuck with concrete would be hammered to their proper shape and condition. Lubricant and paint would be applied. The processed jacks would then be stacked orderly layer after layer on another wooden pallet for storage or hire. Each lot of processed jacks on a pallet should consist of 250 jacks. As to the connection pins, they would be inspected, counted and repacked into bags. Parts and accessories that were beyond repair would be set aside for sale as scrap. 8.During the trial, the above background facts did not appear to be in real dispute. Considering the evidence, I find them to be the facts in any event. Issues in dispute 9.According to the pleading, the following are in dispute:
How the accident happened The pleaded case 10.In accordance with her pleaded case, Limbu has to prove that the accident happened like this:
11.Limbu’s case is that accident happened when she was tripped when she walked over the scaffolding materials scattered on the ground. She had to do so because the ground was fully covered by the materials. In other words, there was practically no access into the shed at the time. This is the major factual dispute between the parties. Limbu 12.According to Limbu, there was no empty space or passageway into the shed. In court, she added that the jacks were scattered all around and piled up to her knee. The area covered by the scattered jacks extended to about 6 feet into the shed. Therefore she had to walk over the jacks in order to get to where she worked inside the shed. She was carrying jacks in both of her hands and each jack weighed 3 to 4 kg. She set her left foot on the pile of jacks and continued by raising her right foot. In the course of that, she was tripped and fell forward onto the jacks. In court, Limbu said that she fell on the jacks and then onto the ground. Thapal 13.Limbu called her then colleague Madam Thapal as witness. Her employment was terminated in 2007. She basically corroborated Limbu’s evidence that the shed was full of scattered scaffold parts at the material time. 14.Thapal did not witness how the accident happened. Upon being alerted about the accident, she went to check on Limbu. According to her statement, Limbu was lying unconsciously on the jacks. Like Limbu, Thapal also changed to say in court that Limbu was in fact lying on the ground and surrounded by the jacks. 15.According to her statement, Ng, the foreman, asked the workers to summon the ambulance. It was upon their refusal that Ng did so. Ng then instructed the workers to clear the ground of the jacks. That the workers managed to do before the ambulance arrived. 16.Thapal further stated that on the day after the accident, Yeung instructed the workers that upon being asked by the Labour Department officer about the accident, they were to say that the ground was at the time clear and unobstructed. In court, Thapal changed to say that it was Ng, not Yeung, who gave such instruction. She suggested that Limbu’s lawyers probably made a mistake in her statement. Lan Tse 17.The Company called Lan Tse as a witness. She confirmed that normally she and Limbu worked together on the scaffold jacks returned from the construction sites. It was she who usually monitored the unloading of the returned scaffold parts. She would not allow the scaffold parts to be unloaded in a way that would obstruct the entrance to the shed. In case too many lots of jacks were returned, they would be stored in the open on both sides of the driveway leading to the shed. There was always space between piles of jacks in the shed that allowed workers to pass through to enter and to leave the shed. 18.Lan Tse did not witness how the accident happened. But she was apparently the last person who saw Limbu prior the accident. She remembered seeing Limbu in that afternoon while she was on the driveway fetching some wooden pieces for making a pallet. She saw Limbu walk from the direction of the office holding a 2-litre plastic bottle of water. Limbu passed by her heading towards the shed. Subsequently, when she walked back to the shed, she found Limbu lying on the ground. There she somehow kicked what she believed to be the bottle of water that Limbu was bringing towards the shed earlier on. To reach Limbu, she did not have to walk over the jacks. Kwok 19.At the time of the accident, Kwok was doing welding work at the inner part of the shed. He could gain access from outside to where he worked on the day without having to walk over the jacks. When asked in court, Kwok estimated that the path he took was about 1 to 2 feet wide. In any event, it was enough for him to pass through without having to walk sideway. 20.Kwok did not witness how the accident happened. Upon being alerted, he went to see what happened. He discovered Limbu lying on the ground. To reach Limbu, he too did not have to walk over the jacks from where he was working. Ng 21.Ng was the Company’s foreman and at the storage yard. Upon being alerted, he went to the shed and found Limbu lying on the ground near to the entrance to the shed. In court, he testified that he frequently went inside the shed to check out Kwok’s work. He never had to walk over the jacks. He would ensure that there was always an unobstructed passageway of about 1 metre wide as access to and egress from the shed. Whilst he admitted summoning the ambulance at the time, he denied doing so only after the workers had refused to make the call. He also denied what Thapal said about his instruction to the workers on the day of the accident and the day after. Evaluation 22.Mr C Wong pointed out the apparently different versions of how Limbu came to fall as recorded in her declaration to the Labour Department, the accident report of the Department, the medical reports and the medical expert report. In these documents, it was recorded that Limbu was either tripped by the scaffold materials on the ground or simply lost her balance on level ground. There was no suggestion that she walked over the jacks and was tripped and fell in the course of that. 23.These are valid observations. Nevertheless, considering Limbu’s background, I am more inclined to consider and to place more weight on the evidence of the witnesses that I managed to see testify in court than to take what these documents have recorded. 24.In her evidence, Lan Tse could not tell the time gap between seeing Limbu pass by her with the bottle of water and discovering Limbu lying on the ground. In this respect, Limbu did not deny having dealt with the bottle of water at one time during lunchtime. But the accident happened after 2 pm. Therefore, what Lan Tse said does not suffice to contradict Limbu’s evidence that she was carrying 2 jacks in her hands when she walked or started to walk over the jacks immediately prior to the accident. 25.According to Limbu, when she left the shed after work on the day before the accident, she already had to walk over the jacks in order to leave the shed. According to Thapal, she worked outside the shed on the day before the accident. But in order to get to the rest place (i.e., the container inside the shed), she had to step on the jacks. Their evidence in this crucial respect is contradicted by that of the other workers. 26.In court, Lan Tse was not able to recall various details of what happened and what she did on the day of the accident and the day before. She could not recall whether there was any unloading of scaffold parts on those 2 days. She also appeared to be unable to recall whether she had gone into the inner part of the shed during those 2 days. 27.Nevertheless, Lan Tse confirmed that she did get changed into her work clothes on those days. In my view, she must have done so and this could only have happened inside the container in the shed. She was clear that she did not have to walk over the jacks in order to get to the container. 28.Kwok’s evidence was relatively straightforward. Referring to the situation depicted in the photographs taken by the Department during the investigation 3 months after the accident, Kwok stated that the situation on the day of the accident was more or less similar, though he was fair enough to acknowledge that there was bound to be some difference. 29.Kwok had to have access to his regular work place inside the shed. He had to pass the entrance of the shed to get there on the date of the accident. According to him, to get to the toilet, he had to walk out of the shed. Yeung, his co-worker, would be close to his workplace whenever Yeung came to work in the shed. Whether his estimate of the width of the passageway that he described was accurate or not, Kwok was clear that he could pass through without having to walk sideway. Likewise, when he came out of his workplace to check out Limbu after the accident, he did not have to walk over any scaffold parts on his way to reach her. 30.Lan Tse and Kwok confirmed that they found Limbu lying on the ground, not on the jacks. As Mr C Wong pointed out, if Limbu had fallen forward onto the extensive pile of jacks in front of her, one would have expected Limbu to suffer injuries to various parts of her body as a result of the rugged and protruding parts of the jacks. The fact was that apart from the minor laceration to her forehead and the dislocated right shoulder, the hospital’s medical report recorded no other injury, not even abrasion or laceration, to other parts of Limbu’s body. 31.It was only in court when Limbu said that she fell onto the jacks and then onto the ground. In other words, all witnesses now confirmed that Limbu was on the ground. This must mean that the ground next to the jacks that tripped Limbu was sufficiently spacious to accommodate Limbu’s body. Any suggestion that there happened to be such empty space about the size of Limbu’s body within the pile of jacks, but no other space for one to pass through into the shed, is not particularly convincing. 32.Ng’s evidence was criticised. I too doubt his evidence in respect of his instruction to the truck drivers and the workers to keep a passageway into the shed of about 1 metre. Seeing him give evidence, I could not help feeling that this part of the evidence was self-serving. Having said that, I do not find that this compromises my observation about the credibility of the evidence of Lan Tse and Kwok discussed above. Ng’s evidence that there was no occasion on which he had to walk over jacks in order to enter the shed to check on the work of Kwok was actually in line with the evidence of Kwok and Lan Tse in this respect which I accept. 33.Much was said about the loose jacks on the ground. I do not think there is really much dispute about the existence of loose jacks on the ground every now and then. Loose jacks were bound to exist. But the factual basis for the claim in the present case is that the ground was fully covered by jacks to a height of one’s knee that blocked the entrance to the shed. This caused Limbu to walk over the jacks and hence the accident happened. In the circumstances, Mr C Wong described the reference to loose jacks at the same time is a red herring. I agree. 34.The dispute as to whether Ng was at first reluctant to summon the ambulance also does not have a direct bearing on the crux of the present case. The fact was that it was indeed he who summoned the ambulance. No particularly material suggestion with reference to this episode was made during the trial. 35.Thapal gave evidence that Ng instructed the workers to clear the scene of the jacks after the accident. She also gave evidence that Ng instructed her to effectively lie to the Labour Department about the true state of the shed if asked. The implication is that Ng was concerned about the possible legal consequence of the accident to the Company. 36.Lan Tse and Kwok denied that they were so instructed by Ng at the time. Though Thapal did not leave the Company until 2007, she could not tell whether other workers had received similar instruction from Ng to lie to the Labour Department about the state of the shed. Lan Tse and Kwok denied that Ng had given them such instruction. According to Lan Tse, Ng was not seen to be too concerned about what she was about to tell the Department during the investigation. The Department actually did not interview Thapal but the other workers during the investigation in 2006. There is no suggestion that Limbu was prevented from telling the truth to the Department either. I reject Thapal’s evidence in this respect. 37.The crux of the matter is whether the ground of the entrance to the shed at the time of the accident was fully covered by the scaffold materials so that there was no access to the inner part of the shed. It is in this crucial respect that I find objectively the evidence of the witnesses for the Company is more credible than that of Limbu or Thapal. 38.To conclude, I find that the ground was at the time not fully covered by the scaffold materials. I find that there was indeed space or passageway as access from the entrance to the inner part of the shed at the time. Limbu however chose to walk over the jacks. She was the only worker who did that on the day of the accident. Whether the Company was in breach 39.According to the pleading, the Company was in breach of the following duties:
40.In closing, Mr K Wong did not seek to rely on the alleged breach summarised under (4) above. The particulars of breach in respect of each of the remaining causes above are essentially similar. 41.I find that the ground of the shed was not fully covered by scaffold materials as alleged. I also find that there was in fact access to and egress from the inner part of the shed at the material time. Limbu chose to walk over the jacks to get to where she needed to work. It was because of that the accident happened. Was the Company in breach of its duty in these circumstances? 42.It was suggested that a passageway should have been designated and kept clear of obstruction at all times. Instead, the Company let the path in and out of the shed be dictated by how the scaffold materials happened to be placed from time to time. Therefore it was only reasonable for the workers to find that taking such a path would be troublesome and inconvenient. Worker might also trip over the materials along the path. Workers like Limbu would therefore take the risk of walking over the jacks for the purpose of her work. 43.There are numerous hurdles to the above argument. Strictly speaking, the factual basis of Limbu’s pleaded case does not really permit an alternative case on the basis that there was access to and egress from the shed at the material time but the same was unreasonable. In any event, in terms of width of the access into the shed at the material time, I find that there was in fact enough room for the workers to pass through during work. There is also no evidence that the access was unreasonable in terms of its safety. On the face of it, walking over the jacks must be relatively more dangerous than taking an inconvenient passageway. 44.If workers such as Limbu chose to walk over the jacks out of convenience, as Mr K Wong actually put to Lan Tse during her cross-examination, Limbu’s pleaded case that she had to walk over the jacks out of necessity fails. 45.Should the workers have been warned against the danger of walking over the jacks? To be under such a duty, the Company would have to appreciate the danger. There is no suggestion or evidence that such accident has happened before. These workers, including Limbu, had been working there for many years. They had years of experience and could be left to decide how to carry out their work. There is no basis to suggest that the Company should have foreseen that walking over the jacks was somehow incidental to their work so as to warrant the warning. Limbu and Thapal admitted in court that they have never made any complaint to the boss about the need to do so. They never suggested that walking over the jacks was the norm when they carried out their work. Whilst the danger of tripping by the scaffold materials on the ground during work might have been contemplated, Limbu’s duties were precisely those to clear them and to arrange their storage in an organised manner. 46.I come to the conclusion is that Limbu fails to prove breach on the part of the Company. Liability is not established. Contributory negligence 47.Assuming that the Company is somehow liable notwithstanding the above finding of facts, I proceed to consider whether Limbu is to blame for contributing to the occurrence of the accident in the circumstances. 48.Mr K Wong referred to Munkman on Employer’s Liability (14th ed) at para.6.37:
49.Mr K Wong submitted that there should be no finding of contributory negligence if the risk taken by the employee was caused by the employer in the first place. In principle, I agree. But in the circumstances of the present case, what Limbu chose to do could hardly be excused entirely. Indeed Mr C Wong submitted that even assuming that the access into the shed was inconvenient; the risk that Limbu chose to take was disproportionate to the trouble of following the path that she wanted to avoid. I agree. 50.I doubt whether movement within the shed of its size, even in a meandering manner, should take more than a minute or two. In choosing to walk over the jacks and holding the jacks in both hands at the same time, Limbu admittedly did not give any thought at all to the risk of tripping or loss of balance. There is no suggestion or evidence that she was under any real pressure to finish her work by a tight or particular deadline. The fact was that she had been working on the jacks there since the day before the accident. 51.What Limbu chose to do in the circumstances was extraordinary. This contributed to the occurrence of the accident. Mr C Wong submitted that she should be half to blame in the circumstances. I agree. Quantum 52.Again for completeness, I proceed to assess the quantum of damages assuming liability is established. Injuries, treatment and post-accident condition 53.After the accident, Limbu was sent by the ambulance to the hospital. She was found to be conscious all along. A 3-cm laceration was found over her right forehead with bruising. There was no neurological sign or fracture. Examination revealed anterior dislocation of her right shoulder. After closed reduction, Limbu was discharged the following day. She was given a shoulder immobiliser that she had eventually worn for 4 months. 54.Examination during follow-up a week later revealed fracture at greater tuberosity without intra-articular involvement. She was discharged and had subsequently been given 15 sessions of physiotherapy and 7 sessions of occupational therapy. Sick leave was given for 148 days until 15 August 2006. Her condition was said to be static with residual shoulder stiffness. 55.In March 2007, Limbu had a stroke, presenting sudden onset of right sided-weakness and slurring of speech, right facial weakness and decreased limb power. Orthopaedic expert opinion 56.On 6 May 2009, Limbu was examined jointly by Dr Lee Kin Man and Dr Lam Kwong Chin, the orthopaedic experts engaged on her behalf and on behalf of the Company respectively. The experts produced their joint report dated 23 May 2009. 57.During the examination, Limbu still complained about soreness at right forehead, right shoulder; right-sided weakness and numbness; low back pain and diabetes mellitus. 58.The experts agreed on the following diagnoses and prognoses:
59.Dr Lam found that the present range of motion of Limbu’s right shoulder was even worse than that recorded in August 2006. In his opinion, this was not consistent with the natural course in similar cases of frozen shoulder (which should gradually improve). He opined that the deterioration and persistent stiffness were probably affected by Limbu’s stroke in March 2007. 60.Dr Lee found that the present right shoulder range was comparable or slightly worse than those documented by the occupational therapist. But he opined that the present stiffness and weakness was largely present before Limbu’s stroke and therefore mainly due to the injury in March 2006. 61.The experts agree that the shoulder condition should not significantly affect Limbu’s daily activities except for overhead activities with her right upper limb. Pain suffering and loss of amenities (PSLA) 62.The gap between the parties in respect of the award for PSLA has narrowed down at the end of the trial to HK$200,000 claimed by Limbu and HK$130,000 suggested on behalf of the Company. 63.Mr K Wong referred to Lau Kwok Chiu v Senfield Ltd t/a Tsui Wah Restaurant, HCPI 246/2006 (8 March 2007); Limbu Muni Parsad v Hyundai Engineering and Construction Ltd, HCPI 1167/2003 (19 August 2004); and this court’s judgment in Chan Ching Yuk v Otis Elevator Company (HK) Limited & Anor, DCPI 248/2005 (11 September 2007). 64.Mr C Wong referred to the relatively older cases of Lam Man Yin v Choy Tak Fu, HCA 4248/1982 (22 January 1985) and Ip Ah Chiu v Wong Chun Fai & Anor, HCA 7100/1984 (13 March 1987). 65.It cannot be said that the cases cited are, and probably not intended to be, close comparables. Taking into account the court’s discussion of the facts in those cases and the circumstances of Limbu, I award HK$160,000. Loss of earnings 66.The pre-accident monthly income of Limbu is agreed at HK$5,900. 67.The experts agree that the sick leave given up to mid-August 2006 were appropriate. But they hold different views on Limbu’s capacity to resume her pre-accident job after the sick leave. Dr Lam opined that if only the right shoulder injury were considered, Limbu should be able to resume her pre-accident job with some diminution in efficiency and endurance after the sick leave. Dr Lee opined that Limbu obviously could not resume her pre-accident job. 68.Considering the degree and the repetitive nature of the labour required in handling the scaffold parts and accessories, I would not underestimate the difficulty and discomfort Limbu would have felt, if she had resumed her pre-accident job after the sick leave. Dr Lee was silent about whether Limbu should manage other kinds of general labour after the sick leave. Yet even assuming that she should, I still have to give credit to the time required for Limbu, at her age and with her background, to locate such an alterative job. Chances were that Limbu would have been unable to find herself an alternative job soon after the sick leave period. 69.The experts agree that even if Limbu had not met her accident in March 2006, she would have had to quit the job after the stroke in March 2007. All her circumstances taken into account, Limbu should have retired by now. 70.In the circumstances, I am satisfied that Limbu should be entitled to compensation for loss of income since the accident until her stroke, which was roughly a year’s income. 71.The loss of earnings and MPF benefits, at 5%, was therefore HK$5,900 x 1.05 x 12 months = HK$74,340. Miscellaneous special damages 72.Miscellaneous special damages are agreed at HK$6,260. Summary 73.In summary, the award will be as follows:
74.Interest on general damages from the date of writ (23 December 2008) to today at 2% p.a.:
75.The total award is HK$(240,600 + 4,533.33 + 13,444.08) = HK$258,577.41. This should be discounted for 50% contributory negligence to become HK$129,288.71. 76.Credit shall be given to the employees’ compensation received in the sum of HK$54,960. The final award is therefore HK$(129,288.71 – 54,960) = HK$74,328.71. Order 77.The claim is dismissed. I make a nisi order that the Company shall have the costs of this action, including any costs reserved. Costs shall be taxed, if not agreed. To avoid doubt, I certify the engagement of counsel. Limbu’s own costs shall be taxed according to legal aid regulations. This nisi order shall become absolute in the absence of application within 14 days.
Mr Kevin C W WONG instructed by Messrs Lee & So for the Plaintiff upon the assignment of the Director of Legal Aid Mr Charles T C WONG instructed by Messrs W H Chik & Co for the Defendant |
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