Tse Sin Yee v. Wing Wah Cake Shop Ltd
Read the full judgment text of DCPI 1618/2010 on BabelCite. This District Court judgment was delivered on 19 July 2011.
1. The Plaintiff Miss Tse Sin Yee (“Miss Tse”) claims against the Defendant, her former employer, for damages incurred due to an injury to her right thigh and back sustained in the course of her employment on 16 April 2006. Her claim against the Defendant is based on the breach of common law duty of care and/or a breach of statutory duty of care and/or a breach of implied term in her employment contract.
Cited by 4 cases · Cites 5 cases
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DCPI 1618/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 1618 OF 2010 ------------------
------------------ Transferred from the Court of First Instance of the Coram : Her Honour Judge H.C. Wong in Court Dates of Hearing : 3 – 6 and 11 May 2011 Date of Handing Down Judgment : 19 July 2011 ------------------ JUDGMENT ------------------ 1.The Plaintiff Miss Tse Sin Yee (“Miss Tse”) claims against the Defendant, her former employer, for damages incurred due to an injury to her right thigh and back sustained in the course of her employment on 16 April 2006. Her claim against the Defendant is based on the breach of common law duty of care and/or a breach of statutory duty of care and/or a breach of implied term in her employment contract. 2.The Defendant Wing Wah Cake Shop Limited (“Wing Wah”) is a limited company incorporated under the laws of Hong Kong. 3.Miss Tse was first employed by the Defendant as a shop assistant and cashier on 27 September 2004 to 31 March 2005 to work at Shop 1A Shatin Station of KCR East Rail Line. On 1 September 2005, she was re-employed as a shop assistant and cashier; she was assigned to work at the East Tsim Sha Tsui Station, Shop 11 in Tsim Sha Tsui Kowloon (“the Shop”) on 1 November 2005. 4.On 16 April 2006, at around 11 a.m., Miss Tse met with an accident at the Shop when shelving cakes from plastic trays delivered that morning to the Shop onto the display shelves and warming cabinets. 5.The Defence accepted that Miss Tse sustained injuries by accident in the course of work on 16 April 2006, but it denied the accident happened in the way described by Miss Tse. 6.Miss Tse lodged an employees’ compensation claim in 2008 under DCEC 250 of 2008 relating to the accident on 16 April 2006, she accepted the sanctioned payment into the Court from the Defendant on 17 August 2009. The employees’ compensation claim concluded upon her acceptance of the payment in. She lodged a second claim in respect of a second accident at work in August 2006 under DCEC 251 of 2008; the 2nd ECC claim was dismissed on 7 June 2010 by His Honour Judge Leung. 7.The Defendant denies it was negligent and/or in breach of statutory or contractual duties. Alternatively, the Defendant claims the Plaintiff was guilty of contributory negligence wholly or partly. Furthermore, the Defendant claims the Plaintiff’s injury suffered at the accident was due to a pre-existing condition of the Plaintiff which should be taken into consideration in the award of damages. The Issues
The Plaintiff’s case 8.Miss Tse reported for duty shortly before 10 a.m. on 16 April 2006. Around 10 a.m., two of her colleagues left for a special workshop at the Chatham Road branch of the Defendant, leaving Miss Tse and another colleague Miss Lam to tend to the Shop. Shortly after, Miss Lam went out to buy breakfast, leaving Miss Tse alone in the Shop. Before Miss Lam returned to the Shop, trays and boxes of cakes were delivered to the Shop, they were deposited outside the Shop entrance. So as not to block the entrance, Miss Tse single-handedly moved some of the cake trays into the storeroom and was shelving cakes at the Shop front when Miss Lam returned with her breakfast. Miss Lam went into the storeroom to finish her breakfast while Miss Tse continued shelving cakes by herself. As she was lifting 2 to 3 trays of ‘old lady cakes’ 「老婆餅」 from the floor, placing them onto the trolley of shopping baskets before loading them into the warming cabinets, she injured her back and right thigh. 9.Feeling the pain on her back and right thigh, she went into the storeroom and told Miss Lam of the accident. After she and Miss Lam finished shelving the cakes at the Shop, she called the Shop’s assistant head Miss Wu and Mr. Lau, the supervisor, to inform them of the accident. She was told to take a rest at the storeroom. When the pain deteriorated, she was taken by a colleague to Princess Margaret Hospital’s Accident and Emergency Department for treatment later that morning. She was given one week’s sick leave by the doctor at the hospital. She returned to work on 23 April 2006. 10.While at work on 1 May 2006, she suddenly felt numbness on her leg and pain around the back of the waist. After reporting the condition to her superior at the Shop, she was escorted by a colleague to the Accident and Emergency Department of Princess Margaret Hospital on the same day. She was given sick leave up to 7 May 2006. As the pain failed to subside, on 7 May 2006 she sought treatment at the Accident and Emergency Department of Prince of Wales Hospital (‘PWH’) in Shatin. She was referred to and received physiotherapy treatments at the PWH. She returned to work on 15 May 2006 while she was still being treated at the physiotherapy department of the PWH. Because of the requirement of her duties at the Shop, she was not given leave to attend the physiotherapy treatments though she was able to continue with the follow-up treatments at the PWH. She had also sought treatments at various clinics including Pok Oi Hospital in Yuen Long, Shatin Hospital, Shatin Lek Yuen Health Centre and Nethersole Hospital in Tai Po. Furthermore, she attended private clinics including the Union Hospital, general medical practitioners and Chinese herbalists for treatments. She was given 24 months of sick leave by the doctors after the accident between 16 April 2006 and 15 April 2008. 11.She admitted she received sick leave payments from the Defendant up to April 2008. The Defendant settled the Plaintiff‘s employees’ compensation claim under DCEC No. 250 of 2008 by a sanctioned payment of $171,313 which was accepted by the Plaintiff on 17 August 2009. The Defendant’s case 12.The Defendant adduced evidence from four witnesses who were co-workers and supervisors of Miss Tse. It is not disputed that none of Miss Tse’s co-workers witnessed the accident on 16 April 2006. Miss Lam, who was working at the Shop on the morning of 16 April 2006 since 8 a.m. that day, had gone to buy breakfast sometime between 9.55 to 10.15 a.m. When she returned, she found a stack of trays with cakes had been delivered to the shop. She admitted because Miss Tse had told her to finish her breakfast before unloading the cakes, she went into the storeroom to eat her breakfast. By the time she returned to the shop front to work, Miss Tse had finished loading all the warming cabinets. As there were ‘old lady cakes’ 「老婆餅」 left in the trays, these were pushed into the storeroom for storage after the trays were placed on the tray trolley. While she was shelving tin biscuits onto the display shelves, Miss Tse came out of the storeroom, stood in front of the door, muttered a curse and told Miss Lam she had injured her leg. Miss Lam told her to take a rest, she saw as she looked inside the storeroom the tray trolley and trays inside the storeroom and that the storeroom floor was dry and flat. Later, she overheard Miss Tse calling the shop head Miss Wu to report the accident. A male colleague, Mr. Fong, later came to escort Miss Tse to seek medical treatment. 13.According to the evidence of Mr. Lau Yat Ming, the supervisor in charge of the five Tsim Sha Tsui branches of the Wing Wah Cake Shop in 2006, he would take turn with the head of the shop「店長」 to man the Tsim Sha Tsui East Train Station shop. Together with the head, the assistant head, and two shop assistants, there were altogether 5 staff working three daily shifts at the Shop. About 13 – 15 trays of fresh cakes and biscuits were delivered daily from Wing Wah’s Yuen Long factory to the Shop between 10 a.m. and 12 noon. Trays of cakes and cartons of biscuits would be left at the entrance of the Shop and the shop staff would place the cakes on the shelves or into the warming cabinets, the remaining cakes would be stored in the storeroom. On the day of the accident, 16 April 2006, a total of 13 trays of cakes and one carton box of biscuits were delivered to the Shop after 10 a.m. They consisted of individual wrapped cakes and around 8 trays of unwrapped cakes including puff pastries such as「老婆餅」. Each tray with 30 ‘old lady cakes’「老婆餅」has a total weight of 5.63 kg. The staff at the Shop was responsible for taking delivery of the cakes and biscuits delivered. The cakes would be pushed into the shop next to the warming cabinets and the Shop staff would take the trolley from the storeroom, put it next to the stack of cake trays, put the cakes from the trays onto the shelves before stacking the empty trays onto the trolley. After filling the shelves and the warming cabinets in the Shop, the staff would put the remaining trays of cakes on the trolley and push the stack of trays into the storeroom for storage. 14.It was Mr. Lau’s evidence that puff pastries such as the ‘old lady cakes’「老婆餅」are placed in the bottom trays of the stack delivered and shelving should begin from the top. Consequently, the「老婆餅」and other puff pastries would only be placed in the warming cabinets after all the cakes were shelved. During the course of the day, the Shop staff is required to replenish the warming cabinets from the storeroom and bring out trays of puff pastries such as「老婆餅」into the shop front. 15.According to the evidence of Mr. Lau, Miss Leung, Miss Lau and Miss Lai, there was no need for any of the shop assistants to carry 2 to 3 trays of cakes and training was given to each new staff in the first month of their employment at all Wing Wah shops. As each Wing Wah shop has a different size and layout, each staff upon entry at a new shop is required to learn from the head of the shop the daily routine of taking delivery, shelving and storage of cakes. 16.It is the Defence case that Miss Tse had failed to follow the proper procedure explained to her when she first joined the Shop, it resulted in her injuries. Findings (1) How did the accident happen on 16 April 2006? Was it at the front of the Shop or inside the storeroom? 17.According to the evidence of Miss Tse, she was lifting 2 to 3 trays of puff pastries「老婆餅」from the floor, placing them on top of the trolley of shopping baskets to facilitate the transfer of cakes into the warming cabinets at the Shop front when she felt pain on her back and right thigh. She went into the storeroom to inform Miss Lam who was having her breakfast. She claimed she was doing exactly what the other colleagues were doing when she lifted 2 to 3 trays of cakes and she was never told she should only lift 1 tray of cakes at one time. She also claimed there was no proper training at the Shop to speak of, she was merely shown how the Shop operated on her first day at the Shop and she followed what other colleagues were doing. 18.Contrary to the evidence of Miss Tse, Miss Lam, Mr. Lau and Miss Leung claimed the way to load the warming cabinets was to take the base plate from the warming cabinet, clean it and place the cakes onto the plate before returning the plate of cakes into the warming cabinets. Mr. Lau admitted he did not orally explain to Miss Tse what she should look out for when shelving cakes and replenishing the warming cabinets. He claimed he did demonstrate to Miss Tse the proper way to lift weight and told her to ask for assistance when required. He further claimed that he had never witnessed Miss Tse lifting 2 to 3 trays of cakes at the Shop. According to Mr. Lau, the proper way to replenish the warming cabinets is to take the base plate from the warming cabinets into the storeroom, cleaned it before placing the cakes from the plastic trays in the storeroom and return the plate to the warming cabinets at the shop front. He further said that puff pastries such as「老婆餅」and「蓮蓉酥」would be removed from the plastic trays into paper boxes inside the storeroom for storage in the warming cabinets. According to the evidence of Miss Leung and Miss Lam who were staff at the Shop, they would remove the base plate from the warming cabinet and placed it on top of the plastic tray, fill the base plate with cakes then return the plate to the warming cabinet. The empty plastic trays together with the remaining cakes would then be placed on the trolley and pushed into the storeroom for storage. 19.On the day of accident, Miss Tse said she did not make use of the tray trolley inside the storeroom because it had trays with cakes left over from the day before. It was her practice to place 2 to 3 trays of old lady cakes on top of the shopping baskets when replenishing the warming cabinets. As she was lifting the trays from the floor, she turned to put them on top of the shopping baskets when she injured her back and thigh. 20.Miss Lam admitted she did not witness the accident. She was shelving tins of biscuits onto the shelves on the left side of the storeroom door when Miss Tse emerged from the storeroom after storing the stack of trays into the storeroom. Miss Lam said she looked into the storeroom as Miss Tse talked to her with the door half opened and she could see through the half opened door that the floor of the storeroom was level and dry and there was no obstruction in the passageway. 21.I find Miss Lam’s evidence on what she could see and notice inside the storeroom when Miss Tse told her of the accident contrived. Judging from Exh. D5, the photograph of the area in front of the storeroom door and Exh. D3 (the sketch plan), it was impossible for Miss Lam to have seen the inside of the storeroom to ascertain if the storeroom floor was level or dry or whether there was any obstruction at the passageway through the half opened door from the spot Miss Lam indicated where she was standing. She also said Miss Tse had told her she had ‘sprained her leg’ (扭傷隻腳). It is possible Miss Lam had misheard what Miss Tse said or Miss Tse might have mentioned ‘leg’ when she meant the thigh, which is part of the leg. 22.The Defence relied on Miss Lam’s version of how the accident must have happened, while Miss Tse claimed she was injured while lifting trays of cakes at the shop front, that she told Miss Lam about her injury when Miss Lam was still having her breakfast inside the storeroom. Page 404 of the trial bundle is the Form 2 filed by the employer on the accident, it is dated 29 April 2006 and completed by the manager named Mr. Tse Chi Hang (謝志亨). At paragraph D, it stated: “員工想把貨物 (老婆餅) 搬運至貨架上，在搬運途中，扭傷腰部及大腿筋。” The statement clearly indicated the employer had accepted Miss Tse’s version of the accident that she had injured her waist and thigh while she was transferring cakes onto the shelves. There was no explanation at the trial from the Defendant as to why it reversed its stance after filing Form 2 when it accepted Miss Tse’s version on how she had sustained her injuries. 23.Miss Lam joined Wing Wah on 1 November 2005 while Miss Tse had worked at the Wing Wah Shatin shop for 6 months before she was re-employed on 1 September 2005. Miss Tse being the more experienced staff had probably assumed a responsible role at the Shop at the time. 24.It was the evidence of Miss Leung, the head of the shop, that Miss Tse was a responsible employee who was eager to do the work at the Shop. She was hard working and had a good understanding of what she was shown and was able to pick up the work quickly while other staff may take longer to learn. She said Miss Tse learned to do the work at the Shop within the first day of her transfer, while it might take three or more days for other staff to learn. 25.Miss Tse claimed it was the practice of her colleagues to carry two or more trays in one go and she was told by her colleagues to do the same. This was denied by the Defendant’s witnesses. Both Mr. Lau and Miss Lai claimed that if they saw Miss Tse carrying more than one tray at a time, they would have told her not to do so, but both admitted they had never seen Miss Tse doing that. The Shop staff operated in 3 daily shifts, the delivery time for the shop was between 10 a.m. and 12 noon each day, a time when the Shop was less busy and there were usually only two staff on duty. It is therefore unlikely for Mr. Lau who was in charge of 5 to 6 shops in Tsim Sha Tsui or for Miss Leung to be present at the Shop at the same time when trays of cakes were unloaded at the Shop by Miss Tse. Furthermore, the Defendant admitted there was no staff training manual informing the staff the proper method of handling cakes delivered to the shop. Though there was training workshops given to the staff by the Defendant, according to the documents disclosed in the trial bundle, these related to customer relationships and knowledge on products rather than on safety procedure at work and the proper way to handle weighty merchandise at the shops. 26.I noticed from the photographs exhibited, the Shop was fitted with a large number of wall shelves. In the centre of the Shop, there were more cabinets and display shelves installed, thus leaving little room for staff and customer passage. Miss Tse indicated she had wanted to dispose of the stack of cake trays delivered without waiting for Miss Lam to finish her breakfast to assist her. This is understandable when the stack of cakes delivered was blocking the entrance to the Shop. She also claimed because of the narrow aisles in the Shop, removal of the stack of trays to the storeroom was difficult to manoeuvre. 27.After assessing the evidence of both the Plaintiff’s and the Defendant’s witnesses, the lay-out and the dimension of the Shop, the quality of evidence given, I find Miss Tse to be a truthful witness and her evidence on the incident that she injured her thigh and her back while lifting trays of cakes at the shop front credible. The Defendant’s objectivity was probably affected by Miss Tse’s second ECC claim on an accident in August 2006 and the dismissal of that claim by HH Judge Leung on 7 June 2010. The two accidents are totally unrelated. (2) Was the accident caused by Wing Wah’s negligence and/or breach of statutory duty or contractual duty for failing to provide a safe system of work, proper instructions, training and risks assessment? 28.An employer’s duty to the employee is set out in Clark & Linsell on Torts, 20th Edition para. 13-03 at p.848-849:
29.The Plaintiff further claims under the Occupational Safety and Health Ordinance, Chapter 509 of the Laws of Hong Kong, Section 6(1), (2)(a), (b) and (c), that the employer is responsible for the safety and health of the employee at work, Section 6 provides:
30.The Plaintiff accuses the Defendant for failing to discharge its duty of care as an employer exposing Miss Tse to the risk of injury because the Shop lacked:
The aforesaid are the requirements under Section 6 of the Occupational Safety and Health Ordinance, Chapter 509. An employer who failed to comply with Section 6(1) requiring the employer to ensure the safety and health at work of all the employees would have committed an offence and on conviction liable to a fine of $200,000; and if an employer intentionally or knowingly or recklessly committed the offence, he is liable on conviction to a fine of $200,000 and imprisonment for 6 months (Section 6(4)). 31.On the question of whether the work process was unsafe, it relates also to proper adequate instructions, training, supervision, manpower and whether the employer had provided a safe system of work, and whether the employer had conducted risks assessment on the work process and the environment of the workplace. Training and instructions 32.All of the Defendant’s witnesses claimed they gave ‘on the job’ training after the training on the employee’s first day at the Shop. Miss Tse denied there was any training given to her at all when she first joined Wing Wah at the Shatin shop or when she later returned to Wing Wah’s employment in September 2005 or on 1 November 2005 when she was transferred to the Tsim Sha Tsui East shop. She specifically denied any of her supervisors had showed her the correct posture when lifting heavy goods; neither did Wing Wah put her on a training course on industrial safety. 33.According to Miss Leung, the head of the Shop, because each of the Defendant’s shop has a different layout and size, each member of staff in their first month would be explained the daily routine of the work of the particular shop including shelving arrangements, checking of merchandise delivered, cleaning of shelves and equipments, performing cashier duties, replenishing merchandise, and the end of month inventory checking of the storeroom. 34.All of the Defendant’s witnesses referred to the correct posture of lifting weight at the shop in their witness statements, all of them denied there was a need to carry more than one tray of cakes at a time at any of the shops. This was denied by Miss Tse who claimed she was shown by other Wing Wah staff to carry more than one tray of cakes at a time to save time and no one had ever told her otherwise. 35.Mr. Wong, counsel for the Defence, referred to the dictum of Lord Kilbrandon in Brown v. Allied Iron Founders [1974] 1 WLR 527 at p.533D-F:
36.While it is true that the employer cannot be there to check if all his employees would move a weight they could manage, the employer should have given adequate warning, guidelines and instructions to the employee to ensure the safety of the employee at the workplace. 37.All of the Defendant’s witnesses referred to a particular method of lifting heavy weights in their respective witness statements. Their evidence on transferring trays of cakes, shelving cakes and lifting goods were remarkably similar and identical. If it was not necessary to carry more than one tray of cakes when replenishing the warming cabinets or when cakes were transferred into the storeroom, there was no need for all of the Defendant’s witnesses to emphasize the correct way of lifting weights insisting it was what all employees were told on their first day of duty. Such meticulous description of the correct posture to lift weights, I believe is a reaction to and an answer to Miss Tse’s claim in these proceedings. 38.Upon examining carefully the layout plan of the Shop on page 2012 of bundle 2, with a scale of 1:50, the frontage and width of the shop should be about 10 feet. Taking into account the warming cabinets on either side (of the Shop) and the movable display cabinets in the middle, the aisles on either side of the centre display cabinets measured less than 2½ feet (0.75 meters) wide. As the stack of the 13-15 plastic trays delivered to the Shop daily by the factory (with a size of 55 mm x 48.4 mm with a height of 12.7 mm each) had to pass through one of the aisles into the storeroom, the staff pushing the stack of trays into the storeroom would find a space of 10 cm or less on either side of the stack as it was pushed into the store. It is also noted that the left hand aisle beyond the warming cabinets and the cashier counter would be too narrow for the cake trays to pass through for the width of the aisle between the cashier counter and the central display cabinets in the Shop was even narrower. 39.According to Miss Tse, she had cleared the Shop front, moved the stack of trays of fresh cakes into the storeroom by herself and began replenishing the warming cabinets before the accident. She was working by herself unsupervised as the senior staff had already left before 10 a.m. for the Chatham Road branch. Because of the particular size and layout of the Shop, and the need to replenish the warming cabinets located in the lower cabinets, Miss Tse was handling the work by herself the best she could and as quickly as she could manage. I am satisfied Miss Tse had been performing her duties largely unsupervised with inadequately training in a tight environment at the Shop. 40.I further find, based on the evidence of the Defendant’s witnesses, contrary to Section 25 of the Occupational Safety and Health Regulation, Chapter 509, there was no risks assessment conducted by the Defendant at the workplace. Section 25(1) provides:
41.Furthermore, risks assessments should have been made in accordance with Schedule 3:
42.Not only was there no staff manual other than a one page document on uniform, tidiness and punctuality of staff, there was no specific manual on handling operations for goods delivered at the Shop and the transfer of heavy stacks of trays laden with cakes into the storeroom or on shelving of cakes and handling of weights in accordance with Schedule 3 above. (3) Was Miss Tse guilty of contributory negligence? 43.Wing Wah had provided no staff manual, no proper supervision and risks assessment of the transfer of trays of cakes delivered at the Shop based on the size and the layout of the Shop or on the daily transfer of the stack of cake trays to the storeroom. I am satisfied Miss Tse had tried to accomplish her tasks swiftly and efficiently when she moved trays of cakes onto the trolley to replenish the warming cabinets after moving a stack of cake trays out of the way from the Shop front when she met with her accident. 44.In the case of Ho Kwai Sang v. Yeung Ling Tsz & another HCPI 1300 of 2000, Mr. Justice Sakhrani held at para. 32:
45.In the CFA case of Cathy Pacific Airways Ltd. v. Wong Sau Lai (2006) 2 HKLRD 586, the head notes of the report provided a summary of the judgment:-
46.The issue is whether the employer has taken reasonable care for the employee’s safety or provided a safe system of work in the performance of her duties at the Shop. The Defendant’s witness Miss Lam demonstrated how a plate from the warming cabinets would be taken out with a corner resting on the side of a stack of cake trays when replenishing the plates from the warming cabinets. The cake display warming cabinets were located in the two lower cabinets. The employee, after loading the cakes from the plastic trays, was required to squat down to insert plates of cakes into the warming cabinets. On the day of the accident, Miss Tse placed 2 – 3 trays of cakes (weighing 11.26 kg – 16.89 kg) on top of the shopping basket trolley before the replenishing. Whether she was using the trolley from the storeroom or the one holding shopping baskets is not the issue, the real issue is whether Miss Tse was working in a safe environment with sufficient room to manoeuvre when she carried one tray or 2 to 3 trays of cakes inside the Shop, and whether a safe system of work was provided by her employer when she was required to replenish the warming cabinets. 47.The Defence witnesses gave two different versions of cake replenishing. The first version came from Mr. Lau. He claimed the staff was required to fill the plates from the warming cabinets at the storeroom and return the plates full for cakes into the warming cabinets at the shop front. The second version was to replenish the warming cabinets from cake trays delivered in the morning before they were stored in the storeroom; that was the version Miss Lam demonstrated in Court. The first version is probably the safer of the two because the storeroom had more space for the staff to do her work. The second version was presumably done upon the morning arrival of freshly baked cakes for the warming cabinet display before the remaining cakes were stored. It is not disputed that the 13 to 15 trays of cakes arriving at the Shop each morning were simply pushed or slid into the Shop because, the Defendant claimed, the shop floor was smooth. They were not loaded onto the tray trolley from the storeroom. After some of the cakes were shelved, the remaining cakes would be stored at the storeroom on the tray trolley. The two practices described both required the staff to lift trays of cakes for shelving and replenishing from the 13 or 15 trays of cakes delivered. I find the system described either by the Defendant’s witnesses or Miss Tse simply inadequate to protect the safety of the staff at the Shop. I am not convinced by the evidence of the Defendant’s witnesses that instructions on safety and a safe method of lifting weights formed part of the training given to Miss Tse either at the Shatin shop or at the shop at Tsim Sha Tsui East Station. I believe the Shop staff were left to deal with the delivery and replenishing of cakes in whatever manner they find convenient, and they could be as diverse as the two versions described by Mr. Lau and Miss Lam. I find Miss Tse not guilty of contributory negligence. The Defendant had failed in its duty to provide a safe system of work for its employees. I am satisfied the Defendant is liable to compensate Miss Tse. (4) Quantum
The Plaintiff’s injuries 48.Miss Tse was admitted into the Accident and Emergency Department of Princess Margaret Hospital on 16 April 2006, she was diagnosed with a sprained back and right thigh. Her present complaints included lower back pain, numbness over thigh and calf, depressive disorder and phobia. According to the joint expert orthopaedic report of Drs. Lam and Cheng, it was their opinion that:
49.According to the joint psychiatric report of Drs. Chung and Ho, it was their opinion that:
It was Dr. Chung’s opinion that the accident had exacerbated Miss Tse’s mental problems. (Page 356 & 360 of Bundle 1). Pain, Suffering and Loss of Amenities 50.Mr. Kwok, Counsel for the plaintiff, relied on the case of Chan Chung Keung v. Greenroll Ltd. t/a Conrad Hong Kong HCPI 275 of 2005, where the plaintiff who fell on the wet floor on his buttocks was found to suffer from soft tissue contusion of the lower back. The Court held that he was suffering no more than a soft tissue injury which exacerbated a pre-existing weakness caused by natural ageing process. The condition had caused the plaintiff certain degree of psychological problems leading to depression. The Court awarded $180,000 for PSLA. The Court considered there was a real element of exaggeration of symptoms by the plaintiff in that case. 51.In the case of Fung Lee Hung v. The Spastics Association of Hong Kong DCPI 1112 of 2005, the plaintiff was found to be suffering from a mild form of depression caused and exacerbated mainly by the pre-existing physical symptoms sustained from injury at the accident followed by social and financial problems since the accident. The Court also found a slight element of exaggeration of her symptoms. She was awarded $200,000 under PSLA. 52.The third case relied on by the Plaintiff is Tam Kwok Man v. The Kowloon Motorbus Company (1993) Limited HCPI 775 of 2001. The judge awarded the plaintiff $150,000 in PSLA after having found his injury was a minor contusion of the back leading to residual pain for some months, although there was no permanent or structural damage, bone or disc damage. The Court accepted the plaintiff did suffer from depression from his inactivity rather than as a result of the accident. 53.Mr. Wong, Counsel for the Defendant, relied on the surveillance video of Miss Tse in early April 2008 and early August 2008. These videos showed Miss Tse going out shopping and walking home, taking public transport carrying a number of bags of shopping, walking up and down staircases in the process. I agree the videos showed Miss Tse to have appeared entirely normal while engaged in her daily activities. 54.The joint orthopaedic report of Drs. Lam and Cheng of 1 June 2009 at paragraph 34 assessed for the purposes of employees’ compensation, stated that Miss Tse may be suffering from discomfort, fatigue or some pain during work and she suffered from 1% to 2% whole person impairment. They also considered her loss of earning capacity to be 1% to 2%. (Page 336 of Bundle 1) 55.Mr. Wong relied on the case of Cheng Liu Nei Su v. Clare Environmental Services Limited DCPI 842 of 2008 (date of judgment 30 July 2009), one of my judgments where I awarded the plaintiff cleaner the sum of $175,000 under PSLA. The plaintiff suffered from soft tissue contusion injury of the back with residual pain. 6 months after the accident, she developed mental depression which affected her sleep and well being. The medical experts found she suffered from a mild form of adjustment disorder with depressed mood. 56.The second case referred to by Mr. Wong is the case of Tam Kwok Man v. The Kowloon Motorbus Company (1993) Limited, a case also relied on by the Plaintiff. In that case, the Court found the sick leave of 9 to 12 months to be reasonable and accepted the plaintiff had suffered from depression. 57.Mr. Wong submitted that the award under PSLA to Miss Tse should not be more than $100,000 because the injury suffered by her was a minor back sprain with no trauma involved. Furthermore, her psychiatric problems with residual impairment was said to be mild to very mild, it was expected to be resolved with a further 12 months course of therapy at the time of interview by the two psychiatric experts. 58.I have taken into consideration the pre-existing condition of Miss Tse which was in remission before the accident on 16 April 2006 and the joint experts’ opinion that the accident was an exacerbation of her mental condition caused by the stressors of physical symptoms and the later problematic relationship with her co-workers and the litigation. (Paragraph 35 at Page 356 of Bundle 1). It is Dr. Chung’s opinion that Miss Tse’s mental complaints after the accident were compatible with an adjustment disorder with mixed anxiety and depressed mood. It was characterized by the development of emotional or behavioural symptoms in response to identifiable stressors. At Paragraph 36, Page 356 of Bundle 1, the report stated:
59.At paragraph 37 of the report at page 357 Dr. Chung said:
And at paragraph 38.3 he said:
60.At paragraph 44, Dr. Ho said:
At paragraph 45, Dr. Ho agreed with Dr. Chung that the exacerbation of her symptoms of adjustment disorder was caused by the stressors of the physical symptoms after the accident, the problematic relationship with her co-workers and the litigation. Even though she had a past psychiatric history and a positive family history that her mother had also received psychiatric treatment which made her vulnerable to develop psychiatric problems upon stressors, Dr. Ho agreed her panic disorder with agoraphobia was largely in remission at the time of the accident on 16 April 2006. 61.Therefore, the conclusion I draw from the experts’ reports is that Miss Tse because of her pre-existing condition is more vulnerable to suffer from an adjustment disorder with mixed anxiety and depressive mood. That the exacerbation of her symptoms of adjustment disorder is caused by the stressors of the physical symptoms after the accident. Judging from the video surveillance tapes, if not for the stresses she encountered at work, Ms Tse obviously can and has been living a normal life. It is unfortunate that the Plaintiff had a pre-existing condition that could be triggered by stressors such as the accident on 16 April 2006 and the difficulties she faced after returning to work albeit as a part time employee. On the aforesaid basis, I award her under PSLA the sum of $175,000. Pre-trial loss of Earnings 62.Miss Tse claims a sick leave period of 609 days during the period 16 April 2006 to 15 April 2008. She resigned on her own accord from the Defendant’s employment on 10 April 2009. She claimed a monthly average earning of $7,300, consisting of a basic salary of $6,800 and an annual bonus of $5,500. The Defendant disagreed the bonus of $5,500 per annum should be taken into account. 63.On the basis that Ms Tse was granted sick leave by the doctors for 609 days between 16 April 2006 to 15 April 2008, and on the basis that she did try to return to work on a part time basis, it demonstrated she was conscientious and had wanted to resume working for the Defendant. On the day of examination by psychiatrists Drs. Chung and Ho in July 2009, it was obvious Miss Tse had been consulting psychiatrists at the Hospital Authority. Both doctors agreed she would benefit from and should continue with her treatment. Dr. Chung considered she would need long term psychiatric treatments for the pre-existing mental problem (Paragraph 43 at page 360 of Bundle 1); Dr. Ho, on the other hand, considered Miss Tse’s treatment for the mental problems caused by the accident required one year (Paragraph 54 at Page 364 of Bundle 1). Dr. Chung considered the sick leave period granted by the HA psychiatric doctors to be appropriate, while Dr. Ho considered from a psychiatric perspective, she would require a total leave period of about four to five months during the more intense phase of her mental problem since the first incident (Paragraph 65 at page 366 of Bundle 1). I accept the 609 days of sick leave given to Miss Tse by doctors at both the public and private sectors in the two years after the accident between 16 April 2006 to 15 April 2008 was appropriate. 64.On the dispute of the monthly wage she was earning before the accident, her basic monthly salary was $6,800, she claimed a bonus of $5,500 at the end of the year. Mr. Wong, Counsel for the Defendant, referred to an agreement at the time of the ECC claim that her monthly wage was set at $6,800. This is found at paragraph 63 of H.H. Judge Leung’s judgment of 7 June 2010 in DCEC 251 of 2008 (Page 741 of Bundle 2). 65.In Miss Tse’s witness statement, paragraph 8 at page 145 of bundle 1, she claimed that her basic pay was $5,500 plus an allowance of $1,300 making a total monthly payment of $6,800. She did not mention an annual bonus of $5,500. I cannot find any supporting evidence for the $7,300 per month claimed in her Statement of Damages. My assessment is therefore based on the monthly salary of $6,800 as follows: $6,800 x 609 days ÷ 30 days = $138,040 MPF 5% = $6,902 Future medical expenses 66.Miss Tse asks for compensation on future psychiatric and psychological treatments recommended by Dr. Chung, it was estimated at $14,000 as an appropriate sum for medication and treatment for one year. The Defence objects to the claim for private psychiatric care because Miss Tse had been receiving treatments at the Hospital Authority clinics. The Defence further pointed out that the recommendation was for one year of treatments, it has been almost two years since Drs. Chung and Ho’s medical report in 2009, whether she had already received the 12 months treatment and medication is unknown. 67.From records exhibited, Miss Tse had been followed-up at the Hospital Authority Prince of Wales Hospital clinic in Shatin. Since the accident on 16 April 2006, she had also received treatments at the Orthopaedic and Traumatic Surgery Department of Princess Margaret Hospital, Prince of Wales Hospital, Union Hospital and the Lee Ka Shing Specialist Clinic as well as from private practitioners. Some of these clinics and hospitals such as the Union Hospital are privately run and she was required to pay for these treatments. I am well aware that it would be inconsistent and illogical if Miss Tse should give up the follow-up clinics at the Prince of Wales Hospital for her psychiatric problems. However, taking into account the special needs of a person with a history of depression, that from time to time Ms Tse may require extra care as she had done before particularly when she was feeling depressed or not able to sleep and had to seek private medical care on an emergency and/or need-to basis, it is reasonable to make special allowances. For this reason I award her the sum of $10,000. Special damages 68.Miss Tse claims special damages in the sum of $29,520.40. The sum is supported by documentations including receipts from various clinics and hospitals, the sum also included travelling expenses. They are set out in the Statement of Damages at pages 70 to 73 of bundle 1. Expenses on the Hospital Authority treatments were not included because they had been waived by the Hospital Authority when Miss Tse was unemployed. The Defence disputes the sum of hospitalization at Union Hospital of $10,335, I find the hospital expenses and other miscellaneous expenses were reasonably incurred by Miss Tse. I allow the sum of $29,520.40 in total. Summary
Interests 70.Interests on general damages at 2% per annum from the date of writ to date of judgment, interests on special damages at half judgment rate from the date of accident to date of judgment, thereafter at full judgment rate until full payment. Costs 71.Costs to follow the event. I make a cost nisi order that costs of the action shall be borne by the Defendant, to be taxed if not agreed, with certificate for counsel. Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. Should there be no application on costs within 14 days from the date of this judgment; the order will be made absolute.
Parties : Mr. Tim Kwok instructed by Messrs. Lo, Chan & Leung assigned by Director of Legal Aid for the Plaintiff. Mr. Melvin Wong instructed by Messrs. Paul C.K. Tang & Chiu for the Defendant. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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