Liu Cairong v. Parker Cleaning Services Company Ltd

HCPI 189/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 189 OF 2013

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JUDGMENT
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Introduction

1.This action arises out of an accident at work (“the Accident”) in which the plaintiff, who was employed by the defendant as a cleaning worker, lost her balance and fell from some stairs from a rear staircase on 13 March 2010. As a result of the Accident, the plaintiff’s left wrist was fractured. The defendant denies liability and disputes quantum.

Liability

2.The defendant provides cleaning service for Kings Park Villa, a residential development situated in Ho Man Tin, Kowloon (“the Villa”). The plaintiff, then aged 52, only started her employment with the defendant at the Villa on 1 March 2010, less than two weeks before the Accident. She just came from the Mainland in January 2010 to settle in Hong Kong for good. Previously she had been a farmer in the Mainland.

3.At the time of the Accident, the plaintiff was all by herself and thus she is the only eye-witness of the Accident. Both parties agree that she had a fall at the rear staircase but they differ in the circumstances leading to and the actual manner of her fall. This difference is indeed of key importance to the issue of liability.

4.This factual dispute very much hinges on the credibility of the plaintiff. To have a proper assessment of her credibility, it is imperative to examine all the matters placed before this court as well as her evidence.  I start with her pleadings.

5.In her statement of claim, the account of the Accident was contained in paragraph 3:

“On 13^th March 2010 at about 11:30 a.m., the plaintiff was in the course of employment with the defendant working at the premises as a cleaning worker and was instructed to carry out some heavy manual cleaning works including but not limited to sweeping and mopping floors and cleaning walls and/or ceilings at height thereat at backstairs of the premises. At the material times, the plaintiff was engaging the cleaning works on stairs at the premises by carrying a long stick with clothes and a bucket of water together with other cleaning tool(s). In the course of cleaning the wall, the plaintiff tried to raise up her heel to clean the said wall and ceilings while carrying the said tool(s) and she suddenly fell onto the ground from height (about 3-4 steps in height) on her outstretched left hand. As a result, the plaintiff sustained serious injuries over her left wrist.”

6.In answer to Request for Further and Better Particulars of the said paragraph, the plaintiff stated that since the walls and/or ceilings at height at backstairs of the premises at the material times of the Accident was very dirty, the plaintiff needed to carry a 3-foot long stick with clothes/towel with both hands and raised her heels to apply greater force to clean the said walls and ceilings. The plaintiff further averred that the defendant instructed her to obtain the long stick in a storage room where the cleaning tools provided by the defendant were stored.

7.On this basis, the plaintiff claims that the defendant was in breach of its safety-related implied terms of the employment contract with the plaintiff and its statutory duties. The plaintiff also relies on negligence and breaches of common duty of care on the part of the defendant.

8.In paragraph 7 of her witness statement, which she adopted as part of her evidence in chief at trial, she provided a similar and brief account of the Accident. It reads:

“On 13^th March 2010 at about 11:30 a.m., I followed the defendant’s instructions … held clothes, a bucket of water and a long stick to conduct cleaning work at the backstairs. In the meantime, I had to follow the instructions to conduct duties including cleaning the high walls and ceilings, etc. When I used the long bamboo stick (with clothes on the top) to clean the high wall and ceiling, since there was no space for putting a ladder between the stairs, I had to hold the long bamboo stick with my both hands and point my tip toes and raise up (sic) my heels and heads (sic) so as to clean the hard-to-reach areas. The defendant did not provide any labour assistance or safety belts or other safety equipments (sic) to me. In the process of cleaning, I suddenly fell down from the stairs (about 3-4 steps in heights) on my outstretch (sic) left hand and blacked out immediately.”

9.Dr Lo of Kwong Wah Hospital (“KWH”) in her medical report dated 23 February 2011 (“the Report”) reported that the information she obtained when she saw the plaintiff on 18 March 2010 was that the plaintiff had been tripped on a staircase and fallen on her out-stretched left hand.

10.The plaintiff filed a Form 2 for the purpose of the plaintiff’s employees’ compensation proceedings and it was dated 26 March 2010. Ms Ng Kit Yan, Manager of the defendant, gave the information contained in the Form 2. Her source of the information is unknown though. There, it was stated that the plaintiff got injured when cleaning stairs and handrails at the backstairs of Block 1 of the Villa.

11.Some photographs depicting the locus of the Accident in the presence of the plaintiff (and her counsel) taken shortly before this trial are adduced by consent. These photographs disclose the following undisputed information. Firstly, in the rear staircase of Block 1 of the Villa, there are about 15 steps on each flight of stairs. Each step is 10 inches in depth and 6 inches in height. The lower portion of the walls is covered by mosaics and the rest is painted apparently with white paint.

12.The plaintiff is about 58 inches (4 feet 10 inches”) tall. There is also a photograph showing the plaintiff holding a bamboo stick (without any cloth/towel on its tip) touching the ceiling of the rear staircase. She faced the landing above her and her feet were well within the 3^rd step from the landing behind her. Apparently she was showing how she worked before the Accident.

13.Some video clips recently taken by the plaintiff’s legal representatives were played at trial to show the location of the Accident and the manner in which the plaintiff attempted to clean the ceiling of the rear staircase with her tiptoeing on a step.

14.In the witness box, the plaintiff added further information about her job and the Accident in her evidence in chief. At the material time, the foreman Bo Xie (寶姐) (“Bo”), who was her supervisor, instructed her to clean the rear staircase of Block 1 of the Villa. The Villa comprises 6 blocks. There are 20 floors in each block. The plaintiff was responsible for the cleaning work at Block 1.

15.The plaintiff was adamant that her usual duties included cleaning the high walls and the ceilings of the rear staircase in addition to the steps, landings and handrails. On a fair reading of her pleadings, this is her case.

16.Pausing here, I note that this is a factual dispute calling for my resolution. The defence says that the plaintiff was not required to clean the ceilings and high walls of the rear staircase as her routine cleaning duty. She only needed to clean the steps and landing of the staircase and wipe the handrails.

17.The plaintiff stated that at the material time it was the first time she had performed the cleaning duties at the rear staircase. To undertake the cleaning task at the rear staircase, the plaintiff had with her a mop, a towel and a bucket of water. She worked alone without any supervision. She started from the topmost floor and went downwards to clean each floor step by step.

18.The plaintiff gave more details about the Accident in a piecemeal and haphazard manner under cross-examination. In summary, the plaintiff testified that when she reached between the 2^nd and 3^rd floors, she noticed that there was a black stain on the ceiling. It was a cobweb clung to the wall and its size together with its dangling fabrics was similar to that of an opened-up A4 box file (she pointed at the trial bundle). She decided to go back to the storeroom behind the reception area at the lobby on the ground floor.  Bo had previously instructed her that she could find a bamboo stick, a clip and a towel there and she could use these things to clean such areas above her head. When she tiptoed on the 3^rd step facing the landing on the top and brushed with force the black spot with her makeshift cleaning tool after dismantling the cobweb, she fell and fractured her left wrist. She lost her consciousness and when she came round she found her forehead broken too.

19.There are some red herrings cropping up at trial. Nevertheless, on the evidence, I have little difficulties in making these two key factual findings:

(1) The plaintiff was not instructed to clean all the high walls and ceilings of the rear staircase on the material day.

(2) The plaintiff was not cleaning any black spot and cobweb as alleged at the material time before the Accident.

20.I have come to the foregoing conclusions for the following reasons.

(1) I accept the evidence of Madam Tang, the only defence witness who now works as a foreman of the defendant but took leave on the date of the Accident, that the cleaners of the defendant are not required to clean the high walls and the ceilings at the rear staircase of the Villa with a bamboo stick and a towel, dry or wet, on a usual basis. I find it inherently improbable that the defendant finds it necessary to routinely clean such places, which are out of reach of the residents of the Villa and hence would give such instructions to its cleaners including the plaintiff, even given the fact that the Villa is a luxurious development. I accept the evidence of Madam Tang that the cleaning workers of the defendant including the plaintiff are required as a general duty to clean the steps and landing of the staircase and wipe the handrails only at the rear staircase.

(2) Mr Sakhrani, counsel for the plaintiff, in his cross-examination of Madam Tang, rightly pointed out that there might be occasions where the defendant as a cleaning service provider finds it necessary to clean those places at height in the event of vandalisms by the use of crayons. I, however, accept Madam Tang’s explanation that these are only special occasions and under such unusual circumstances, specific instructions would be given to its more experienced workers to deal with the same. It should be noted that on a fair reading of the pleaded case, the plaintiff’s contention is that, rather than a special duty, she had to clean the ceilings at the rear staircase pursuant to Bo’s general instructions and in doing so she fell. This I cannot accept.

(3) It is also noteworthy that on her own evidence the plaintiff had to stop her work and take the elevator to get to the ground floor so as to fetch the bamboo stick at the storeroom so as to clean the black spot on the 2^nd floor. If she had actually been instructed to clean the high places including the ceilings at the rear staircase of Block 1, it is only inexplicable why the bamboo stick was not with her right at the outset when she started working from the 20^th floor and she did not find it necessary to use the same until she reached the 2^nd and 3^rd floors. Indeed, under cross-examination, the plaintiff agreed with Mr Lim, counsel for the defendant, that she did not find it necessary to clean the high walls and the ceilings of all the floors above the 2^nd floor. She started working at the rear staircase at 9:00 a.m. on the 20^th floor to mop the steps and wipe the handrails only.

(4) The plaintiff’s evidence is also that Bo only demonstrated to her how to clean the high walls of the lift lobby and not at the staircase during the brief induction exercise in the first three days of her employment. From the photographs, it can be seen that the walls of the lift lobby are covered by marble instead of being painted.

(5) That said, if the plaintiff had really seen a black spot with a cobweb on the ceiling which apparently could be removed by her easily, I would accept that it was her duty to remove the same as far as she could manage. Nevertheless, I am unable to accept her evidence in this respect. In particular, I reject her allegation that she had to tiptoe on the 3^rd step to remove a black spot with a cobweb on the ceiling. The plaintiff did not mention the black spot and the cobweb on the 2^nd floor in her pleadings and her witness statement at all. She burst out a reference to the black spot and the cobweb out of context in the course of answering a top-up question in her evidence in chief. However, her counsel did not follow that up. It was not until the cross-examination by Mr Lim that the plaintiff gave a full account of the Accident including some graphic details of the cobweb. She managed to recall the actual size and the condition of the cobweb. It is indeed inexplicable why she did not mention about all these in her pleadings and her witness statement.

(6) In re-examination, she attempted to explain away her omission. Her last answer was that she did relate all those matters about the black spot and the cobweb to her legal advisors but they simply failed to include them in her pleadings and witness statement. I cannot accept her explanation. I cannot understand why her legal advisors would have made such a glaring omission when her claim is wholly based on her allegation that she fell in the course of cleaning the black spot and the cobweb on the ceiling.

(7) In addition, if the black spot and the cobweb had prompted her to tiptoe on the 3^rd step to brush the ceiling of the 2^nd floor and caused her fall, this must be very pertinent to her account of the Accident. I fail to understand why her counsel did not lead such evidence in her evidence in chief to remedy this important omission in her witness statement and why she left it until cross-examination to give this court all the details. I have little hesitation to reject her account.

(8) I should highlight that this omission cannot be regarded as an excusable failure to give more particulars of an accident. Underpinning her claim is the allegedly dangerous duty to clean at height and this duty arose only because she purportedly saw the black spot and the cobweb on the 2^nd floor. She did not have to tiptoe on the step to clean the high walls and the ceilings before seeing the black spot and the cobweb on the 2^nd floor. This is central to her claim and is just too material to be omitted.  

(9) The first and the only mention of a cobweb was in fact made in the witness statement of Madam Tang. There she only suggested that in the event that it appeared to be a cobweb at the corners of the high walls at the rear staircase, the defendant’s cleaners only need to remove it with a feather duster. I conclude that the black spot and the cobweb were mere fabrications by the plaintiff. This severely dents her credibility.

(10) Mr Sakhrani urged me to give sufficient consideration of the plaintiff’s personal background, her education level (only 2 years of primary education on the Mainland) and her psychiatric problems suffered as a result of the Accident. I have taken into account all such matters and given the plaintiff maximum allowance. However, I am still far from convinced that the plaintiff has told this court the genuine cause of the Accident. I am of the firm view that her account of cleaning the ceiling (with or without the cobweb) using the bamboo stick is not truthful and I must reject her evidence in this regard accordingly.

(11) Lastly, on the whole, the plaintiff hardly impressed me as a truthful and reliable witness at all. For example, she alleged for the first time under cross-examination that as a result of her fall, she lost her consciousness for about half an hour (as opposed to a brief moment as stated in her pleadings). She also asserted for the first time that her forehead was broken and there were blood lines emerging. This is, however, not borne out by medical evidence at all.

21.Since I reject the plaintiff’s account of the Accident, the video clips and the photographs do not assist to advance her case. Having said that, I should make it clear that the distinct impression I have after examining them is that, despite the plaintiff’s unnatural acting in the footages, she should have been able to clean the fictional black spot with ease. She might be required to raise her heels a bit but the major part of her feet should still be landed on the step. It does not appear to be a dangerous maneuver to me at all even if she had to clean a black spot on the ceiling with the bamboo stick.

22.For completeness, I should deal with three contentions of Mr Lim. First, Mr Lim relies on the Report and contends that the account stated therein truly reflected the real cause of the Accident. I cannot accept this submission. The plaintiff’s evidence as to what she actually told Dr Lo about the cause of her fall is rather confusing and uncertain. Even if the plaintiff only told Dr Lo that she had tripped on the stairs without mentioning her cleaning work, I cannot accept that it could be cogent rebuttal evidence of the occurrence of the Accident. Her account given to Dr Lo served a different purpose and I do not think her failure to tell Dr Lo the full account of the Accident can be held against her. Furthermore, her reference to tripping on the stairs might arguably cover her allegation of losing her balance when brushing the ceiling.

23.Secondly, Mr Lim also relies on the Form 2. As rightly pointed out by Mr Sakhrani, it was not put to the plaintiff that she related to the cause of the Accident to Ms Ng, who filled the Form 2, and the cause stated therein was the genuine cause. Moreover, Ms Ng did not testify to explain why she made such a statement in the Form 2. In the circumstances, I cannot accept that the Form 2 can in any way assist the defence case.

24.Lastly, Mr Lim draws my attention to the fact that the plaintiff only fractured her left wrist, indicating that she fell on her out-stretched hand. In his submission, this was consistent with either her tripping on the stairs or slip and fall forward. Had the Accident taken place as alleged, the plaintiff could not have sufficiently reacted to stretch her arm out.

25.Interesting though it sounds, I cannot accept this submission. The plaintiff could have lost her grip of the bamboo stick by her left hand before she reached the ground or even let go the bamboo stick altogether when she lost her balance. In the premises, I do not think I can draw the inference suggested by Mr Lim.

Conclusion on Liability

26.After all, the plaintiff has the burden to prove the occurrence of the Accident on the balance of probabilities. The mere fact that the plaintiff fell from the staircase in the course of her employment with the defendant could not attach any liability to the defendant in this action.  Though this court is still uncertain as to why and how exactly the plaintiff fell and got injured, having rejected the plaintiff’s account of the Accident including her allegation that she was then performing cleaning job at height, this court has no alternative but to dismiss her claim.

Contributory Liability

27.Given my conclusion on liability, strictly speaking, the issue of contributory negligence does not arise. For what it may be worth, I agree with the fall back position of the defence that the plaintiff should be held to be 33% liable for her loss and damage as a result of the Accident for the following reasons.

28.First, the plaintiff claims to have a fear of heights. All the more, she should have properly assessed her risk of cleaning at height. Further, if she had had the time to go to the storeroom to fetch the bamboo stick, she should have taken the opportunity to ask for help or advice from her supervisor or other colleagues.

29.Second, if the plaintiff really found that she had to tiptoe on a step to reach the ceiling with the 3-foot bamboo stick, she should have sought alternative means for carrying out the cleaning task. For example, she accepted that the wooden pole of the mob she had with her was much longer than the bamboo stick, there is no reason why she did not use it to reach the ceiling. Of course, it was unpleasant to hold on to the wet part of the mob but there were many ways to avoid direct contacts with the wetness. To start with, she could have reduced the wetness of the mob head by rinsing the same. Wearing plastic gloves or covering the mob head with a plastic bag could be an easy solution that should have crossed her mind.

30.In coming to this conclusion, I have taken into account the inexperience of the plaintiff as a cleaning worker. I do not think that the plaintiff needed related work experience to avert the Accident given the simplicity of her task.   

Quantum

31.I shall proceed with the assessment of the quantum of damages on the basis that the plaintiff is 33% contributorily negligent.

(1) Injuries and Treatment

32.The plaintiff attended the Accident & Emergency Department of KWH. X-rays showed her fractures of the distal radius and ulna styloid process. She was managed conservatively and her left wrist was immobilized by a plaster of Paris cast for four weeks. The follow up X-rays showed an intra-articular wrist fracture without displacement.

33.The plaintiff received physiotherapy in KWH till 30 July 2010 and she was assessed on 25 August 2010 after twelve sessions of treatment. It was reported that she had 70% improvement. There was still mild left wrist pain with mild swelling. The plaintiff also received occupational therapy till 15 November 2010.

34.There was a joint examination of the plaintiff by Dr Wong See Hoi for the plaintiff and Dr Lam Kwong Chin for the defendant on 25 October 2011 when the plaintiff was on sick leave. The two doctors agreed that there was no muscle wasting of his right hand and the left wrist had no gross external deformity or swelling. X-rays showed that the fracture at the right distal radius has healed and there were also features of non-union at the ulnar styloid and slight separation of the distal radio-ulnar joint.

35.Both Dr Lam and Dr Wong agreed that the physical condition of the plaintiff was a stable one and further treatment was not required. They opined that the plaintiff could be regarded as having maximal medical improvement (MMI) from the Accident.

36.Dr Lam opined that by August 2010, the plaintiff could carry load of 35 Ibs for 100 meters and she should be able to resume pre-injury work as a cleaning worker. The permanent adverse effect should be mild.  

37.Dr Wong opined that with fracture left distal radius healed with  mild collapse and residual pain, weakness and stiffness, the plaintiff is expected to encounter difficulty on exertion that is required for her pre-injury job. She may also suffer inconvenience when mopping floors and climbing a ladder. On that basis, also given her age, Dr Wong opined that jobs of a sedentary nature such as watchman or carpark attendant are more suitable for her.

38.Dr Lam concluded that the plaintiff suffered a 2% permanent impairment of the whole person and the loss of earning capacity was assessed at 2%.

39.Dr Wong opined that the plaintiff suffered a 6% permanent impairment of the whole person and the same percentage for her loss of earning capacity.

40.The plaintiff has also adduced medical evidence of her psychiatric and/or psychotic problems. She was referred from KWH by a letter dated 3 February 2014 written by Dr Chan Wai Chung. Dr Chan recorded in the letter that the plaintiff has history of depression and has been seen by Integrated Mental Health Program in July and August 2013. Allegedly she was suicidal and once even went to a roof of a building.

41.There is also a medical report dated 19 June 2014 by Dr Pao. Dr Pao stated that the plaintiff was first known to the West Kowloon Psychiatric Centre in February 2014 because of low mood after the Accident. She was diagnosed to have a depressive episode secondary to he1r physical pain. Dr Pao opined that full recovery is expected if she continues to attend her follow-up sessions and if her pain is under control, there should not be any permanent disability resulting from her psychiatric problem.

(2) PSLA 

42.In the first place, I note that there is no contrary evidence adduced by the defence to disprove the psychiatric problems of the plaintiff. Whilst I agree with Mr Lim that generally the plaintiff is prone to exaggeration, I cannot reject her medical evidence altogether and cannot refuse to accept her diagnose of depression.

43.The plaintiff struck me as an unreliable witness. In her testimony, she was perfectly coherent and clear-minded on the whole. She sometimes managed to talk back. I also observed her discussion with her daughter, Madam Heung, in the public gallery when Madam Tang testified in the witness box. She actually looked attentive and responsive. However, sometimes she looked very miserable and even could not understand simple questions of her counsel. I feel that she might be acting. I have serious doubt about the purported severity of her psychiatric problems. I also refuse to accept the evidence of Madam Heung about the psychiatric condition of the plaintiff. She appeared to be biased and exaggerating. I could not believe that she gave up her job to take care of the plaintiff. On the medical evidence, the plaintiff could take care of herself independently.

44.I have reviewed the authorities cited to me by both Mr Sakhrani and Mr Lim. They included: Sin Sau Mui v Yuen Sai Kwong and Ors, unreported, HCA11319/1993, 4 November 1996, Tang Shu Shek v Leung Chi Kit trading as Leung Pui Form Mould Works and Anor., unreported, HCPI 219/2002, 13 May 2004, Chan Mei Ling v Wong Wing Kwong,  unreported, DCPI 675/2012, 16 September 2013, Lam Kwok Ling v Lam Kwok Wing and Ors, unreported, DCPI 529/2011, 18 June 2013, Yu Yixin v Leung Chi Tin Andy, unreported, DCPI 1306/2007, 13 March 2008 and Law Muk Yau v So Cheuk Po t/a Po Kee Logistics, unreported, DCPI 852/2011, 6 August 2012.

45.However, I am unable to derive much assistance from these authorities. None of them involved psychiatric injuries at all.

46.I am of the view that the wrist injury is a minor one and the plaintiff has more or less fully recovered from it. Her psychiatric problem does not appear to me a serious one to me on the evidence. I assess the award for damages as PSLA in the present case in the sum of HK$200,000.

(3) Loss of Earnings

47.The plaintiff was aged 52 at the time of the Accident and is now 57. She is presently unemployed. Mr Sakhrani helpfully draws my attention to the admissions by the defence in its Answer that her pre-injury monthly salary was HK$6,100 and that after the implementation of the minimum wage pay on 1 May 2011, her monthly salary would have been HK$9,000 had she stayed on with the defendant. After the second stage of implementation from 1 May 2013, her salary would have been HK$11,000 per month.

48.The treating doctors stopped the plaintiff’s sick leave in October 2011. Mr Lim submits this court that I am not bound by sick leave certificates granted by the treating doctors and must make my own assessment in light of all the available evidence including medical evidence before this court on the authority of Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at §18 per Le Pichon JA.  His submission is clearly right.

49.Dr Lam opined that the plaintiff recovered well in November 2010 already and should then be able to return to her pre-injury work. Dr Wong on the other hand agreed with the sick leave granted by her treating doctors till 12 January 2011 though he agreed that she did not require further treatment.

50.I am prepared to accept Dr Wong’ s evidence and the cut-off date should be one month after January 2011. I, however, do not accept that the plaintiff could not return to her pre-injury work after end of February 2011 despite the further sick leave certificates granted by the plaintiff’s treating doctors subsequent to the joint examination.

51.I agreed with Dr Lam’s opinion that the plaintiff should be able to return to her pre-injury cleaning job albeit with reduction in work efficiency. I am unable to accept the plaintiff’s evidence that she quitted her job with the defendant in September 2010 because of the acute pain she felt when doing the cleaning work at the Villa. Her account was not supported by any medical evidence.

52.I do not accept Dr Wong’s opinion that the plaintiff could only work part-time as a watchman or car park attendant. In any event, such jobs are not more suitable for the plaintiff solely because of her injury. Her lack of fitness and her age are also contributing factors.

53.My assessment of her pre-trial loss of income including MPF having taken into account the four months from May to September 2010 she worked again for the defendant during her sick leave period:

HK$6,100 x 105% x 5.5 = HK$35,227.50

54.The plaintiff indicated that she intended to continue to work as a cleaning worker until at least 65 and she had no retirement plan at all. For the reasons given above, I do not think the plaintiff would suffer any post-loss of income owing to the Accident and so I refuse to allow any damages under this head.

(4) Loss of Earning Capacity

55.I take into account her age, her limited education and lack of skills when assessing the plaintiff’s loss of earning capacity. She has a good chance to fully recover from her psychiatric problems too and there is no evidence how her psychiatric problems affect her work ability. I agree that given her satisfactory recovery, the global award under this head should be modest. In my judgment, HK$30,000 is the appropriate amount.

(5) Loss of Congenial Employment

56.In his opening submission, Mr Sakhrani makes it clear that the plaintiff is prepared to abandon her claim under this head. I see no reason why an award should be made accordingly.

(6) Future Medical Expenses

57.Both Dr Lam and Dr Wong opined that the plaintiff had reached MMI and she needed no further treatment in respect of her wrist injury.

58.In her Revised Statement of Damages dated 17 January 2014, the plaintiff did not claim any future medical expenses for her psychiatric illness. Now Mr Sakhrani on her behalf asks for the sum of HK$5,000 for public sector treatments. I am satisfied that the plaintiff has received such treatment in the public clinics and I agree that Mr Sakhrani’s suggested sum is reasonable in all the circumstances.

(7) Special Damages

59.The plaintiff claims HK$44,200 as special damages. Mr Lim raises objections to three items under cross-examination. First, he questioned the sum of HK$3,000 allegedly paid to ReenPro Health Care. The plaintiff managed to produce certificates issued by the said company to evidence the physiotherapy treatments she had received therefrom. I see no reason why this sum should not be allowed.

60.Next, Mr Lim questioned the validity of her claim of HK$15,000 as tonic food expenses. The plaintiff explained that she felt dizzy after consuming the medicine prescribed by her bone-setter and so she required tonic food to strengthen her body. There is no evidence of the effectiveness of such medicine to assist the healing of the wrist injury. Nor is there any evidence of their dizzy side effect. I cannot also be convinced that tonic food was necessitated to reduce such alleged dizziness. The plaintiff even could not produce any evidence as to what tonic food she had allegedly consumed. In the premises, I agree that at most this court can allow HK$3,000 under this head.

61.Lastly, Mr Lim takes issue with the claim of HK$8,000 as travelling expenses. It is indeed on the high side and I believe HK$4,000 should suffice to cover all the travel expenses.

62.All in all, I allow a total sum of HK$28,200 as special damages.

(9) Value of service of caregiver

63.Madam Heung testified that the value of the caretaking service rendered by her to the plaintiff is not less than HK$5,000 per month and she claims to have served the plaintiff for 18 months. 

64.I do not think the injury of the plaintiff necessitated the service purportedly rendered by Madam Heung. The medical evidence showed that the plaintiff was able to take care of herself and perform daily activities on her own even with her fractured wrist. I would only agree to allow a nominal value of the service of a care giver in the sum of HK$5,000 to cover the period from the Accident to May 2010 when she resumed her work with the defendant.

(10)   Interest

65.I would award interest on damages for PSLA at the rate of 2% per annum from the date of service of the Writ until the date of judgment and on damages on pre-trial loss of earnings and other special damages at the rate of 4% per annum from the date of the Accident until the date of payment of employees’ compensation.

(11)   Summary of Award

66.My assessment of quantum is as follows:

PSLA	HK$200,000
Loss of Earnings	HK$35,227.50
Loss of Earning Capacity	HK$30,000
Value of Service of Caregiver	HK$5,000
Future Medical Expenses	HK$5,000
Other Special Damages	HK$28,200
Less 33% for contributory negligence
Interest	To be assessed
Less: Employees’ Compensation received by the plaintiff (HK$126,674.83)

Conclusion and Order

67.For the reasons given above, I dismiss the claim of the plaintiff.

68.There is no reason why the plaintiff should not be ordered to pay the costs of the defendant of this action and I so order. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

69.Lastly, I thank Mr Sakhrani and Mr Lim for their able assistance in this matter.

Mr Ashok Sakhrani, instructed by L & L Lawyers for the plaintiff

Mr Patrick Lim, instructed by Leung & Lau for the defendant