DCPI2473/2009

A A DCPI 2473/ 2009 B B IN THE DISTRICT COURT OF THE C HONG KONG SPECIAL ADMINISTRATIVE REGION C PERSONAL INJURIES ACTION NO. 2473 OF 2009 D D E _________________ E F F BETWEEN G RAI PABITDARA Plaintiff G and H H VEGETABLE MARKETING ORGANIZATION Defendant I I J _________________ J K K Coram : Deputy District Judge A. Kot in Court L L Date of Hearing : 1st to 3rd December 2010 and 6th December 2010 M Date of Judgment : 23rd December 2010 M N N _________________ O O JUDGMENT P P _________________ Q Q INTRODUCTION R R 1. The Plaintiff claims damages for personal injuries arising out S of 2 accidents occurred on 17 October 2006 and 16 December 2007 S respectively at the Cheung Sha Wan Wholesale Vegetable Market (“the T T Workplace”) against the Defendant, her former employer. U U V V  - 2 - A A 2. The Plaintiff alleged that she sprained her back whilst lifting a B basket of garbage weighed 55 to 60 kg onto a trolley on 17 October 2006 B (“the 1st Accident”). She resumed work with the Defendant after her sick C C leave and she sprained her back again on 16 December 2007 whilst moving D a stack of baskets (“the 2nd Accident”). The Plaintiff said that the accidents D occurred due to the negligence of the Defendant as an employer who has E E also been in breach of its statutory duties under the Occupational Safety F and Health Ordinance and its Regulation. F G G 3. The Defendant denied liability and denied the weight of a H H basket of garbage would be as much as alleged and also denied knowledge of the 1st Accident. As for the 2nd Accident, the Defendant denied it was I I the Plaintiff’s duty to move the stack of baskets in question. And in its J J Defence, it also stated that should the accidents did occurred, it is due to K the negligence of the Plaintiff instead. K L L 4. Mr. Sakhrani, counsel for the Defendant, in his final M submission focused on the point that the Plaintiff had given inconsistent M evidence as to how the alleged accidents occurred. He asked the court to N N disbelieve the Plaintiff and dismiss her claim accordingly. O O THE WITNESS P P 5. The Plaintiff is the only witness for her case whilst the Q Defendant called its supervisor, Mr. Lee Shu Man (“Mr. Lee”) and Mr. Q Poon Sum Kwai (“Mr. Poon”) to testify. The statement of Mr. Wong Chiu R R Hung Lester (“Mr. Wong”) is agreed and admitted as evidence at the S S hearing. T T U U V V  - 3 - A A UNDISPUTED FACTS 6. The Plaintiff started working with the Defendant as a general B B labourer since 1 May 2006 earning an average income of $7104.28 per C C month. Her duties include cleaning and sweeping of the floor, collecting garbage with baskets and transporting the baskets of garbage to the garbage D D pool using a wheel barrow. These were her routine daily work duties. At E E the time of the two accidents, the Plaintiff was on duty at the Workplace. F The basket involved in both accidents is of 17 inches (430mm) in width, 24 F inches (610mm) in length and 11.5 inches (290mm) in height and 6 lbs in G G weight. H H 7. The Plaintiff was granted 3 periods of sick leave, namely from I I 17 October 2006 to 24 October 2006, from 16 December 2007 to 22 J J January 2008 and from 15 April 2008 to 10 September 2009. She had not resumed her employment with the Defendant thereafter. A sum of K K $152,193.50 was being paid to the Plaintiff by the Defendant in answer to L L her claim for employees’ compensation for the 2nd Accident. M M THE 1st ACCIDENT N N 8. The Plaintiff, in her evidence, said that she was told to load 4 O baskets of garbage full of vegetable wastes onto a wheel barrow at the time O of the 1st Incident. It was her duty to fill basket with waste and she can P P determine how much to be put in one basket and she was instructed to hold Q 25 to 30 kg at most which is easy for her. However, the 4 baskets in Q question were filled by another co-worker. The first one was of usual R R weight but for the second one, she realised it was in fact doubled the usual S weight when she lifted it up, i.e. about 55 kg. She carried on to load it onto S the wheel barrow and sprained her back as a result. She looked into the T T basket and found there were winter melon and other rubbish in it. She then U U V V  - 4 - A A told a supervisor called Ah Chung of the incident since Mr. Lee had already B gone off duty. B C C 9. Mr. Lee testified that he had never been told of the 1 st D D Accident and having worked for the Defendant for about 30 years, he had E never come across a basket of waste up to 55 to 60 kg and it would not be E possible for a worker to handle a basket of that weight. According to Mr. F F Lee, a basket will usually hold waste of about 10 catties and when being G filled up like what is shown on the photo (page 145 of Bundle) is at the G most of 20 to 25 catties. Even with winter melon, the weight of a basket H H should only be 30 catties but there was different procedure for winter I melon waste which would rarely be put in the basket. I J J THE 2nd ACCIDENT K K 10. The Plaintiff said in evidence that she was handling a stack of L baskets at the material time. She was moving a stack of basket on a trolley L at Lane 5 and the stack inclined to a tilted position with the two or three M M baskets on the top of the stack fell out. The Plaintiff then used both of her N hands to push the stack back to an upright position and felt pain on her N back. She confirmed it was not a case that the whole stack of baskets O O collapsed on her whilst she was stacking them up to the 25th basket. P P Q 11. As for the 2nd Accident, Mr. Lee said that on the material day, Q when he went on duty at 3am, the Plaintiff told him that she hurt her waist R R whilst stacking the baskets at Lane 6. He allowed the Plaintiff to go off S duty and he checked Lane 6 and found everything in order. As for Lane 5, S it was a place reserved for a supplier called Kwan Ti and baskets within T T Lane 5 should be stacked up by staff of Kwan Ti and not the U U responsibilities of the employees of the Defendant. V V  - 5 - A A 12. Mr. Poon was the team leader of the Plaintiff on the day the B B nd 2 Accident occurred. According to him, the Plaintiff’s duty on that day C C included stacking and checking of baskets at Lane 6 and at 1am, the Plaintiff should be working alone. Mr. Poon denied ever instructed the D D Plaintiff to stack up 25 baskets and neither had he ever seen the Plaintiff E E done so. It was the usual practice for 10 odd numbers of baskets to be F stacked up together but Mr. Poon had seen staff of the suppliers stacked up F 20 baskets. Upon seeing this, Mr. Poon had warned the supplier and had G G told them to put the excess ones down. H H SAFETY ASPECT I I 13. The Plaintiff agreed that she was assigned to work with a more J experienced worker when she joined the Defendant but this only lasted for J 7 days. And she was never told what to do concerning work safety except K K be careful in carrying baskets but never shown how. L L M 14. Both Mr. Lee and Mr. Poon said that the Plaintiff had been M assigned to work with an experienced worker for half a month when she N N first joined the Defendant. Mr. Lee said he had told each worker the work O procedure and what to pay attention to whilst Mr. Poon said he had told the O Plaintiff to be careful about safety aspect and if there was any problem, he P P should be consulted. Yet the Plaintiff had never sought assistance from Q him. Q R R MEDICAL OPINION S 15. The Plaintiff was jointly examined by Dr. Chun and Dr. Wong S on 21 January 2010. Dr. Chun had also examined the Plaintiff on 23 T T October 2008. Both experts agreed that there was certain degree of over- U expression of symptoms and signs by the Plaintiff and the discs desiccation U V V  - 6 - A A and facet joint hypertrophy noted on the MRI could be pre-existing. It is B also agreed that the condition of the Plaintiff had reached maximal medical B improvement and no further treatment is required. C C 16. Dr. Wong opined that the Plaintiff had sustained a soft tissue D D sprain injury to her back and the symptoms and signs were attributable to E the two accidents and the disc protrusion could have been aggravated by E the same incidents. In view of the disc desiccation and protrusion, the F F Plaintiff’s low back pain and numbness would not resolve completely. Dr G Wong believes the Plaintiff did have genuine pain and tenderness as G recorded by various medical staff on many occasions and the sick leave H H granted was reasonable. Since the Plaintiff’s job demand involved frequent I standing and squatting and heavy manual work, Dr. Wong is of the opinion I that the Plaintiff would have to switch to cleaning jobs of lighter nature J J such as cashier or car park attendant. He assessed the Plaintiff’s loss of K earning capacity is about 5%. K L L 17. Dr. Chun opined that the Plaintiff’s complaint of continuous M M pain at the low back was inconsistent with the alleged injury and the N Plaintiff had exaggerated her pain and disability. The likely diagnosis was N that she had a recurrent attack of per-existing low back pain. The MRI O O done on 20 June 2008 only showed degenerative change without any nerve P root compression and these changes were not caused by the 2 accidents. P Sick leave granted beyond 22 January 2008 is unreasonable since further Q Q sickness is most likely related to the recurrent nature of the low back pain. R The Plaintiff is independent with her activities of daily living and is able to R return to work with the Defendant and the risk for returning to work is low. S S The loss of earning capacity is assessed at 1%. T T U U V V  - 7 - A A 18. I preferred the evidence of the Defendant’s expert, Dr. Chun to B that of the Plaintiff’s expert. There is nothing in Dr. Wong’s opinion to B justify as to how he came to the conclusion that the Plaintiff’s injury was C C attributable to the two accidents. The fact that Dr. Wong also opined that D the Plaintiff had exaggerated her signs and symptoms casts doubt as to how D Dr. Wong can rely upon the complaint by the Plaintiff to the other medical E E personnel as to her condition. As rightly pointed out by Dr. Chun in his F report, “doctors cannot tell who is having back pain or how severe the back F pain is by the use of image studies” (page 219 of Bundle). And Dr. Chun, G G who had the opportunity of watching the surveillance recordings, should be H considered having the opportunity to observe the Plaintiff in her normal H daily life instead of just at the joint assessment session like Dr. Wong. I I J J LIABILITY K 19. Having heard the evidence, I do not find the evidence of the K Plaintiff reliable. The account given by the Plaintiff in her testimony of the L L two accidents are different with the one pleaded in the Statement of Claim M and her witness statement prepared for this proceedings as well as the M statement to the loss adjuster after the 2nd Accident. No satisfactory N N explanation had been given to explain the inconsistent account. O O 20. As far as the 1st Accident is concerned, it was pleaded in the P P Statement of Claim that the Plaintiff was instructed to move garbage bags Q Q approximately 55 to 60 kg each from the market to the loading bay and in the course of so doing, sustained back injury. What is being pleaded in the R R Statement of Claim gives one the impression that she was instructed to lift S S and carry baskets of 55 to 60 kg. But it is the Plaintiff’s evidence that her T duty included collecting of garbage into baskets and she used to fill up to a T weight that she can comfortably carry. She was instructed to hold 25 to 30 U U V V  - 8 - A A kg and this was her practice before the 1st Accident and such a weight was B easy for her. B C C 21. When being cross-examined that she was the one to determine D how much weight to be put in one basket, the Plaintiff then for the first D time said that the 4 baskets of garbage she was instructed to load onto the E E wheel barrow were in fact filled by another co-worker who had gone off F duty leaving the unfinished work to the Plaintiff. And it was the second F basket she handled that was in fact doubled the usual weight. The fact that G G the basket in question was not filled by the Plaintiff but by another co- H worker was never mentioned in the Statement of Claim or her witness H statement in this proceedings. She explained such fact was being missed I I out due to her ability to explain things clearly. I am not impressed with the J Plaintiff’s explanation and the fact that she volunteered the answer upon J cross-examination rendered her explanation unsustainable. K K L L 22. The shift in the Plaintiff’s description of the 2nd Accident M further demonstrated that the Plaintiff is not a reliable witness. There are 3 M different versions of the 2nd Accident. In the Statement of Claim and her N N witness statement in this proceedings, she described the accident occurred O whilst she was stacking the baskets to about 2 meters high and the whole O stack of basket collapsed on her (page 3 and 89 of Bundle). In her P P statement to the loss adjuster dated 30 May 2008, the description was “I Q started stacking that empty basket (the 25th one) into that column. During Q such, my both hands holding that empty plastic basket was slightly fell R R backward. At that time I sprained my back when I was still holding that S empty plastic basket with my both hands.” (page 242 of Bundle) In her S evidence in court, the Plaintiff categorically denied the accident occurred T T whilst she was stacking the baskets. Instead, she said whilst she was U U moving a stack of basket from one place to another, the whole stack V V  - 9 - A A inclined and 2 or 3 baskets fell from the top. She used both of her hands to B push back the stack and hurt her back. B C C 23. The 3 versions described by the Plaintiff involved totally D different causes that are simply irreconcilable. Had the Plaintiff been D telling the truth, there should not be different versions of the accident. The E E Plaintiff had tried to excuse herself by saying that when she told her lawyer F of the incident, all she had in mind was the baskets hence she described the F incident in a wrong manner. But she cannot deny the fact that both the G G Statement of Claim and her witness statement had been read to her before H she signed the Statement of Truth. When this was pointed out to her in H cross-examination, she said the low back pain affected her mental ability. I I Yet, this was not supported by any of the medical evidence she adduced. J Never in her history of medical consultation had any doctor concluded that J her cognitive ability had in any way been impaired. As for the statement to K K the loss adjuster, the Plaintiff had initially denied saying those words but L eventually she admitted she may have said so. The Plaintiff is evasive in L her explanation. M M N N 24. Considering the Plaintiff’s evidence on the whole, I do not find O her to be a truthful or reliable witness and I am not satisfied that the O Plaintiff had sustained injuries in the manner she asserted so as to give rise P P to any claim against the Defendant. In the premises, the Plaintiff’s claim Q shall be dismissed. Q R R QUANTUM S S 25. Just in case I am wrong on the question of liability, I will deal T with the issue of the quantum of damages for completeness sake. T U Pain, suffering and loss of amenities U V V  - 10 - A A 26. At the time of the accident, the Plaintiff was 37. She is now B aged 38. She enjoyed good health before the accident. As rightly pointed B out by Mr. Sakhrani, the Plaintiff resumed work after both accident and C C only complained of mild pain to the medical officer after the 2 nd Accident D (page 1138 of Bundle). And there is no evidence from the Plaintiff as to D why there is an aggravation of pain after mid-April 2008. Given these facts, E E I found the pain suffered by the Plaintiff would not be great otherwise she F would not be able to continue performing her duty after the 2 accidents and F her injury is far from serious. I considered an award of $60,000 as G G conceded by the Defendant is more than adequate for the Plaintiff’s pain, H suffering and loss of amenities. H I I Pre-trial loss of earnings 27. There is no dispute regarding the Plaintiff’s pre-accident J J earnings of $7,104.28. I did not accept that the Plaintiff would have been K K promoted to the position of supervisory labourer by December 2008. There L is no evidence to substantiate such a contention and the Plaintiff had also L confirmed in the witness box that she got no ground in support. M M N 28. As far as the 1st Accident is concerned, there is no dispute N that the Plaintiff did receive 80% of her salary during the sick leave period. O O So the only loss of earnings is the remaining 20% of her salary, i.e. P $1989.19 ($7104.28 x 8/30 x 105%). P Q Q nd 29. As for the 2 accident, I accept the opinion of Dr. Chun that R any sick leave beyond 22 January 2008 is unreasonable. There is nothing R to explain why the Plaintiff should require sick leave after resumption of S S work for over 2 months. I found damages payable under this head should T T be $9448.69 ($7104.28 x 38/30 x 105%). U U Loss of earning capacity V V  - 11 - A A 30. I accept the opinion of Dr, Chun that the Plaintiff should be B able to resume her pre-accident employment with the Defendant. Even if B she is not able to do so as a result of the accident, the Plaintiff had C C experience of working in a salon and in Chinese restaurants. She can take D up these jobs or work as a security guard. The fact that the Plaintiff had D not joined her husband for the training as a security guard sheds light on E E the Plaintiff’s willingness to look for a job. She cannot put up any F reasonable explanation as to her failure to do so. I am not satisfied that the F Plaintiff had suffered any loss of earning capacity or disadvantaged in the G G labour market and there shall be no damages awarded under this head. H H Future loss of earnings I I 31. For the same reason sets out in the preceding paragraph, I J decline to make an award under this head. J K K Loss of MPF L 32. This has been included in the calculation of pre-trial loss of L earnings. M M Special damages N N 33. I am of the view that the figures suggested by the Defendant in O its Answer for medical expenses, tonic food and travelling expenses are O reasonable in view of the nature of the injury. It is assessed at $3,000. P P Q Q Total award R 34. The total award for the Plaintiff, if she had succeeded on the R issue of liability is : S S PSLA $60,000 T Pre-trial loss of earnings $11,437.88 T Special damages $ 3,000 U U $74,437.88 V V  - 12 - A A The Order 35. The Plaintiff’s claim be dismissed. B B 36. I see no reason why costs should not follow the event. I make C C a cost order nisi that costs of this action be to the Defendant to be taxed if D not agreed, with certificate for counsel. This is an order nisi to be made D absolute upon expiry of 14 days. E E F F G G H H I I (Angela Kot) J J Deputy District Judge K K L L M M Mr. Kenneth Leung instructed by Messrs M.C.A. Lai & Co. for the N Plaintiff N Mr. Ashok Sakhrani instructed by Messrs Winnie Leung & Co for the O Defendant O P P Q Q R R S S T T U U V V