區域法院（人身傷害）Deputy District Judge Liu Man Kin15/11/2015
DCPI2109/2013
A A
B B
DCPI 2109/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E PERSONAL INJURIES ACTION NO 2109 OF 2013 E
F F
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G BETWEEN G
CHEUNG YUEN YING Plaintiff
H H
and
I INTEGRATED DISPLAY TECHNOLOGY LIMITED Defendant I
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J J
K Before: Deputy District Judge Liu Man Kin in Court K
Dates of Hearing: 28-30 October 2015
L L
Date of Judgment: 16 November 2015
M M
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N N
JUDGMENT
O ------------------------- O
P P
INTRODUCTION
Q Q
1. This is a personal injuries claim by the plaintiff (“Madam
R R
Cheung”) against the defendant (“IDT”), in relation to an accident (“the
S Accident”) happened at the Hong Kong Convention and Exhibition Centre S
in Wanchai (“the Exhibition Centre”) during the Hong Kong Electronics
T T
Fair 2010. IDT participated in that exhibition and had an exhibition
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A A
B B
counter (“the Exhibition Counter”) in the Exhibition Centre, in which there
C was a booth (“the Booth”). The Accident occurred on 13 October 2010 at C
about 9:30 am. At the time of the Accident, Madam Cheung was employed
D D
by IDT to work as a cleaner at the Exhibition Counter.
E E
2. A photo (“the Photo”) and a layout plan (“the Layout Plan”)
F F
exhibited to the witness statement of Madam Lo Yuen Kam (“Madam Lo”,
G IDT’s administrative manager) as “LYK-2” and “LYK-3” respectively G
would illustrate the Exhibition Counter and its environment. For ease of
H H
reference, the said photo and layout plan are annexed to this judgment as
I Annex 1 and Annex 2. I
J J
3. As shown in the Photo and in the Layout Plan, the Booth was
K inside the Exhibition Counter and had 2 floors. There were some display K
showcases inside the Exhibition Counter and around the Booth. The lower
L L
floor of the Booth was elevated from the ground. The height of the
M elevated platform (“the Platform”) was about 4 inches. There was M
concealed light (“the Concealed Light”) under the Platform. There was a
N N
pantry on the 2nd floor of the Booth.
O O
4. On 13 October 2010, just before the occurrence of the
P P
Accident, Madam Lo instructed Madam Cheung to clean the showcase
Q marked as Y (“the Showcase”) on the Layout Plan by using a designated Q
cloth. Madam Cheung at that time stood at the position marked as X. I will
R R
set out my finding on the exact location of X later in this judgment. Having
S received the instruction from Madam Lo, Madam Cheung turned around to S
move towards the Platform to go to the Pantry to get the cloth. Madam
T T
Cheung fell at the edge of the Platform. The position where Madam
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A A
B B
Cheung fell is marked as Z on the Layout Plan. This is the Accident.
C C
MADAM CHEUNG’S CASE
D D
E 5. Madam Cheung’s claims that the Accident was caused or E
contributed by the negligence, the breach of common duty of care under
F F
the Occupier’s Liability Ordinance, breach of statutory duties under the
G Occupational Safety Health Ordinance, and/or breach of implied terms of G
contract of employment by IDT. The essence of all these claims is that the
H H
Platform was unsafe. According to Madam Cheung’s case, the Platform
I was unsafe because it was “an elevated platform of about the (sic) 4 inches I
high which had not been made conspicuous and distinct in the exhibition
J J
counter designed or set up by the defendant” – as per paragraph 4(d) of the
K statement of claim. K
L L
6. As per the revised statement of damages, Madam Cheung
M claims the following damages:- M
N N
HK$
O (a) PSLA $350,000.00 O
(b) Pre-trial Loss of Earnings $361,633.24
P P
(c) Post-trial Loss of Earnings $510,678.00
Q (d) Loss of Earning Capacity $100,000.00 Q
(e) Future Medical Expenses reserved
R R
(f) Special Damages $188,890.60
S ___________ S
Sub-total $1,511,201.84
T Less: Employee’s Compensation T
Received $218,468.60
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A A
B B
___________
Total $1,292,733.24
C C
7. Madam Cheung expressly waived any amount of damages to
D D
be awarded which exceeds HK$1 million to give this court jurisdiction to
E hear her claim. E
F F
IDT’S CASE
G G
H
8. IDT denies liability. IDT’s case is that the Platform itself was H
brown and the floor of the exhibition counter was covered by green carpet.
I I
The Exhibition Counter was well lit. The Concealed Light was on. The
J Platform was firm and secured. The Exhibition Counter was well spaced. J
Madam Cheung tripped because she was not paying attention to where she
K K
was walking and was oblivious of the environment at the Exhibition
L Counter. L
M M
9. As an alternative, IDT claims that the Accident was caused
N materially or contributed by the negligence of Madam Cheung. N
O O
10. On the question of quantum, as per IDT’s answer to the
P revised statement of damages, IDT claims that even if IDT is entirely liable, P
the quantum should not be more than the followings:-
Q Q
R HK$ R
(a) PSLA $80,000.00
S S
(b) Pre-trial Loss of Earnings $12,453.38
T (c) Post-trial Loss of Earning Nil T
(d) Loss of Earning Capacity Nil
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A A
B B
(e) Future Medical Expenses Nil
C (f) Special Damages $5,000.00 C
_________
Total $97,453.38 plus interest
D D
E THE EVIDENCE E
F F
11. Each party has called 1 factual witness. Madam Cheung’s has
G
given evidence in support of her case. IDT’s factual witness is Madam Lo. G
H
Apart from the evidence from these witnesses, the documents in the agreed H
trial bundles, including 2 joint medical reports prepared by Dr Ko Put Shui,
I I
Peter (“Dr Ko”) appointed by Madam Cheung and Dr Tsoi Chi Wah,
J Danny (“Dr Tsoi”) appointed by IDT dated 15 July 2013 (“the 1 st Joint J
Report”) and 22 August 2015 (“the 2 Joint Report”) respectively, and the
nd
K K
video footages (“the Video Footages”) produced by IDT showing the
L environment of the Exhibition Counter in the afternoon on 13 October L
2010 and on 14 October 2010, are also evidence before this Court.
M M
N 12. Both Dr Ko and Dr Tsoi are specialists in Orthopaedics & N
Traumatology. I accept that both of them are qualified to give expert
O O
evidence in this case.
P P
13. The gist of Madam Cheung’s evidence is as follows:-
Q Q
R (a) Madam Cheung began to work in IDT on 31 July 2007 R
as a cleaner on contract terms.
S S
(b) One week before the Hong Kong Electronics Fair 2010,
T Madam Lo instructed Madam Cheung to go to the T
Exhibition Centre on 13 October 2010, which was the
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A A
B B
first day of the exhibition, to clean the Exhibition
C Counter and to serve clients with tea. C
D D
(c) On 13 October 2010, Madam Cheung arrived the
E Exhibition Counter at around 8 am and started the E
cleaning work there. This is accepted by IDT.
F F
G (d) Before she finished the cleaning work, at around 8:45 G
am, the boss of IDT arrived and Madam Cheung had to
H H
prepare coffee and tea for everyone. Reporters and
I clients came one after another at 9:20 am. There were I
around 30 people at the Exhibition Counter. Madam
J J
Lo only arrived at around 9:30 am.
K K
(e) After arriving the Exhibition Counter, Madam Lo
L L
found that the Showcase was not entirely clean, and she
M roared at Madam Cheung furiously and ordered M
Madam Cheung to get a designated cloth to clean the
N N
Showcase again.
O O
(f) When Madam Lo was speaking to Madam Cheung,
P P
Madam Lo was facing the Platform and the Showcase
Q was immediately behind Madam Lo. Madam Cheung Q
was facing Madam Lo, with the Platform behind
R R
Madam Cheung’s back. The distance between Madam
S Cheung and the Showcase was around 18 inches. S
T T
(g) Madam Cheung’s evidence is that the distance between
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A A
B B
the Showcase and the Platform was about 1 meter. So
C according to Madam Cheung, position X would be a C
point around 21 inches away from the Platform.
D D
E (h) Madam Cheung followed the order, turned around and E
rushed towards the Pantry to get the cloth. When she
F F
was about to reach the Platform, she tripped over and
G lost balance. She fell towards her right-hand side and G
fell on the ground. Feeling embarrassed, she got up by
H H
herself immediately. She endured the pain and
I continued to work. I
J J
(i) There was no lighting or special direction on the
K Platform. The colour of the floor and the colour of the K
Platform were very similar, i.e. grey in colour.
L L
M (j) After the Accident, a Japanese client also fell without M
noticing the Platform.
N N
O (k) At about 10:30 a.m. on 13 October 2010, the big boss O
of IDT, Mr. Chan, also tripped once because he did not
P P
see the elevated platform. Fortunately, he did not fall
Q on the ground. Q
(l) On 14 October 2010, when Madam Cheung returned to
R R
work at the Exhibition Counter, there were
S black-yellow tapes and “mind your step” labels on the S
floor.
T T
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A A
B B
(m) Madam Cheung continued to work in the Exhibition
C Centre until 16 October 2010. Thereafter, she sought C
various treatments.
D D
E (n) Madam Cheung injured her right knee in the Accident. E
Gradually, since she started to shift her body weight to
F F
the left side to alleviate the pain on her right knee, her
G left knee also started to have pain. Since the right knee G
pain was so bad, she decided to undergo an arthrosopic
H H
chondroplasty operation on 18 September 2014.
I I
(o) In early 2015, Madam Cheung started to seek treatment
J J
for complaints of psychiatric symptoms.
K K
(p) Madam Cheung said that as a result of the Accident,
L L
she was unable to do any job. She had found a job as a
M cleaning worker in the airport in September 2012, but M
she was unable to do the job and quitted after 2 days.
N N
She also tried to work as a salesperson at the tuck shop
O in a school on 2 October 2012, but since the job O
requiring her to stand for a long time and to move lunch
P P
boxes, she quitted the job after one day.
Q 14. The essence of Madam Lo’s evidence is as follows:- Q
R R
(a) Madam Lo was and is the administrative manager of
S IDT. S
T T
(b) Madam Cheung was employed by IDT as an Amah
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A A
B B
since 8 June 2009.
C C
(c) Madam Lo and Madam Cheung were responsible for
D D
the cleanliness of the Exhibition Counter. The
E exhibition was from 13 to 16 October 2010. E
F F
(d) On 13 October 2010 at about 9:30 am, the exhibition
G had not yet started. There was no reporter or client G
inside the Exhibition Counter. The staff members were
H H
busily doing preparation at the Exhibition Counter.
I The lighting of the Booth, including the Concealed I
Light, had been switched on. Madam Lo was standing
J J
on the green carpet observing the display showcases.
K K
(e) Madam Lo discovered that there was water stain on the
L L
glass of the Showcase. She asked Madam Cheung to
M come to see the water stain, and instructed Madam M
Cheung to clean it with a window cloth. At this point
N N
of time, Madam Lo and Madam Cheung were standing
O side by side, both of them were facing the Showcase, O
and Madam Cheung was standing at the right-hand side
P P
of Madam Lo. Both of them were standing around 2
Q feet away from the Showcase. Q
R R
(f) Madam Lo did not shout at Madam Cheung, but she
S only asked Madam Cheung to get the cloth to remove S
the water stain. She did not ask Madam Cheung to do it
T T
urgently.
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A A
B B
C (g) Madam Cheung turned around and went to the stairs. C
She was tripped by the Platform and fell on the
D D
Platform. She used one of her hands to support herself,
E and shortly thereafter, stood up and walked up the E
stairs.
F F
G (h) Madam Lo produced the Photo and the Layout Plan to G
show the environment of the Exhibition Counter and
H H
the Platform.
I I
15. I find that Madam Cheung is an unreliable witness. Her
J J
evidence is contradicted by documents and the Video Footages in many
K aspects, and by medical evidence produced by her. There can be no K
satisfactory explanation as to these discrepancies. The only explanation is
L L
that Madam Cheung confused on some essential issues, and she has also
M exaggerated her injuries. M
N N
(a) Madam Cheung insisted that the Platform and the floor
O of the Exhibit Counter were of similar colour, ie grey. O
This is simply incorrect. As shown by the Photo and
P P
the Video Footages, the Platform was brown in colour,
Q while the floor of the Exhibit Counter was covered by Q
green carpet.
R R
S (b) Madam Cheung in her supplemental statement dated S
13 February 2015 said that “there was no lighting or
T T
special direction on the platform”. Under
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A A
B B
cross-examination, Madam Cheung agreed that the
C environment lighting was bright. However, when C
being shown the Photo and the Video Footages (which
D D
showed that the Exhibition Counter and the Platform
E were well lit), Madam Cheung kept on saying that there E
was no lighting. Madam Cheung’s saying that “there
F F
was no lighting …… on the platform” is unreliable.
G G
(c) As shown in the Video Footages, the distance between
H H
the Showcase and the Platform should be much more
I than 1 meter. That distance should be about 5 feet. I
J J
(d) When Madam Lo was telling Madam Cheung that a
K part of the Showcase was unclean, Madam Lo would K
point to that part to show it to Madam Cheung. In
L L
doing so, naturally both Madam Lo and Madam
M Cheung would face the Showcase and stand close to the M
Showcase. As to the respective positions of Madam Lo
N N
and Madam Cheung at this point of time, Madam
O Cheung’s account is inherently improbable. O
(e) It is inherently improbable that while there were
P P
reporters and clients inside the Exhibition Counter,
Q Madam Lo would roar at Madam Cheung furiously. Q
R R
(f) Mr Ashok Sakhrani, Counsel for IDT, referred Madam
S Cheung to a medical report produced by Madam S
Cheung dated 13 February 2014 (“the 2014 Feb
T T
Report”). That medical report was written by Mr Chu
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A A
B B
Hong Man (“Mr Chu”), a registered Chinese Medicine
C Practitioner, concerning the consultation on 8 C
November 2010. In that medical report, Mr Chu said
D D
“The patient fell down floor carelessly 3 weeks ago,
E causing the above symptom.” Mr Sakhrani asked E
Madam Cheung why she told her doctor that she fell
F F
down floor carelessly. Madam Cheung denied she had
G told this to her doctor. I reject this explanation. The G
doctor would not state this in the report unless Madam
H H
Cheung told him. Further, if there is anything incorrect
I in the medical report, there was ample time before trial I
to ask Mr Chu to make the necessary correction.
J J
K (g) Mr Sakhrani also referred Madam Cheung to a K
physiotherapy report dated 15 June 2012 by Ms CN
L L
Chan of Kwong Wah Hospital. In that report, Ms Chan
M recorded that the first physiotherapy appointment was M
on 1 February 2011. Madam Cheung completed a total
N N
of 12 sessions of physiotherapy and was discharged on
O 11 May 2011 as her progression was static. Madam O
Cheung also reported 80% overall subjective
P P
improvement. Mr Sakhrani asked Madam Cheung that
Q according to this report, her condition was much Q
improved by May 2011. Madam Cheung denied and
R R
said she did not tell the physiotherapist these. For the
S same reasons set out in subparagraph (f) above, I reject S
this explanation.
T T
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A A
B B
(h) In the 1st Joint Report (concerning the examination of
C Madam Cheung on 30 April 2013), Dr Ko and Dr Tsoi C
said in paragraph 10.9 of the report:-
D D
E
“Resumption of duty E
Dr. Ko opines that Madam Cheung should be able to
F resume her work as a cleaning worker with mild F
impairment of her work efficiency and effectiveness as
she may have difficulty in lifting of heavy weight,
G G
squatting and kneeling down. Regarding the effect of
the soft tissue contusion of her right knee, Dr. Tsoi
H opines that Madam Cheung can resume her pre-injury H
job in almost full capacity.”
I I
In the light of this joint report, Madam Cheung’s claim
J that she is unable to do any job as a result of the J
Accident is clearly an exaggeration.
K K
L L
(i) Paragraph 10.3 of the 1st Joint Report records the
M
following:- M
N “At the time of this assessment, which is about 2.5 years N
after the alleged accident, Madam Cheung complains of
O persistent right anterior knee pain with limited walking O
tolerance and difficulty in walking on stairs. She also
has similar complains on the left knee. Examination
P findings showed decrease active range of motion of the P
right knee and obvious resistance present on trying to
Q
have passive flexion further. The manifestation of signs Q
and performance at the physical examination is quite
disproportionate to the magnitude of the injury that she
R sustained on 13 October 2010. It cannot be fully R
explained on her MRI findings which only showed
chondromalacia changes without any significant
S S
structural abnormality or injury. Some degree of
magnification or exaggeraton could not be excluded. It
T is not uncommon in this situation because of the long T
duration of treatment with persistent symptoms. It could
be a gesture of the injured individual trying to impress
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A A
B the examiner and may be taken as a means trying to B
express the degree of suffering and pain because of the
C poor communications skills, which is not unexpected in C
view of the education background.
D D
Dr. Tsoi would like to summarize that Madam Cheung
was exaggerating her disability. There is no medical
E explanation for her failure in single leg standing and loss E
of flexion 30 deg. The absence of muscle wasting
F further suggested that her “injured” right knee is not F
worse than the uninjured left one.”
G G
Significantly, Dr Ko has not expressed any
H disagreement with Dr Tsoi on this point. This is clear H
evidence showing that Madam Cheung has
I I
exaggerated her injuries.
J J
16. Since I have concluded that Madam Cheung’s evidence is
K K
unreliable, I do not accept the allegation that a Japanese client fell on the
L L
Platform, and the allegation that the big boss of IDT tripped by the
M
Platform. Save and except the bare assertions by Madam Cheung, these M
allegations are unsupported by any evidence.
N N
O 17. I reject Madam Cheung’s evidence. Save and except the O
matters accepted by IDT, the matters shown in the documents in the agreed
P P
trial bundles and in the Video Footages, and the admissions made by
Q Madam Cheung which are adverse to her case, I would not rely upon Q
Madam Cheung’s evidence to make any findings.
R R
S 18. I find that Madam Lo is an honest and reliable witness. S
T T
(a) Madam Lo has given clear and consistent evidence.
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A A
B B
She was not shaken in cross-examination. She was not
C evasive, and did not exaggerate anything. Her C
evidence is credible and inherently probable.
D D
E (b) As said above, in respect of the respective positions of E
Madam Cheung and Madam Lo when Madam Lo was
F F
asking Madam Cheung to clean the Showcase, I am of
G the view that Madam Cheung’s account is inherent G
improbable. Madam Lo’s account is the truth.
H H
I (c) Mr Albert Yau, Counsel for Madam Cheung, I
challenged Madam Lo during cross-examination that
J J
Madam Lo’s account of the respective positions could
K not be true, for Madam Lo said that she was speaking to K
Madam Cheung face to face, and when 2 persons
L L
standing side by side, they could not speak to each
M other face to face. With respect to Mr Yau, I do not M
regard this as a valid challenge. When 2 persons are
N N
standing side by side, by slightly turning their heads,
O they can certainly speak to each other face to face. O
P P
(d) Madam Lo said when she spoke to Madam Cheung, she
Q did not raise her voice and only spoke in a normal way Q
because it was a public venue. When being pressed in
R R
cross-examination, Madam Lo said she would not say
S she would speak politely to colleagues but she would S
speak gently and that because she needed to manage
T T
her colleagues, and hence she would need to give
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A A
B B
instructions. These answers are in accordance with
C common sense. C
D D
(e) Madam Lo said she did not urge Madam Cheung to
E clean the Showcase urgently. She said she made no E
complaint against Madam Cheung. She said she and
F F
Madam Cheung had cleaned together that morning, and
G there was nothing particular about the Showcase. I G
accept the evidence. Madam Cheung was continuously
H H
doing cleaning works at the Exhibition Counter that
I morning. In fact, Madam Lo said that all the staff I
members were busy at the Exhibition Counter. There
J J
was only a water stain on the Showcase. Being an
K administrative manager in charge of the cleanliness of K
the Exhibition Counter, Madam Lo certainly would be
L L
aware of the fact that Madam Cheung had to do other
M cleaning works (including cleaning other showcases M
inside the Exhibition Counter), which would not be less
N N
important than removing the water stain on the
O Showcase. It is unlikely that Madam Lo would instruct O
Madam Cheung to put aside all other cleaning works
P P
and to remove the water stain at once.
Q Q
19. I accept Madam Lo’s evidence.
R R
S 20. Wherever there is conflict between Madam Cheung’s S
evidence and Madam Lo’s evidence, I prefer Madam Lo’s evidence.
T T
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A A
B B
LIABILITY
C C
21. Based upon the evidence which I found to be reliable, I make
D D
the following factual findings:-
E E
(a) The environment of the Exhibition Counter and the
F F
Booth is shown in the Photo and in the Layout Plan.
G G
(b) The height of the Platform was about 4 inches from the
H H
Floor.
I I
(c) The Platform was brown and the floor of the exhibition
J J
counter was covered by green carpet.
K K
(d) Before the occurrence of the Accident, the Exhibition
L L
Counter was well lit. The Concealed Light was on.
M M
(e) The distance between the Showcase and the Platform
N N
was about 5 feet.
O (f) Before the occurrence of the Accident, Madam Cheung O
had worked at the Exhibition Counter for about 1½
P P
hours. The exhibition had not yet started. There was
Q no reporter or client inside the Exhibition Counter. The Q
staff members were busily doing preparation at the
R R
Exhibition Counter.
S S
(g) Madam Lo asked Madam Cheung to come to the
T T
Showcase to see the water stain thereon. They were
U U
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A A
B B
standing side by side facing the Showcase, and Madam
C Cheung was standing at the right-hand side of Madam C
Lo. Madam Lo instructed Madam Cheung to remove
D D
the water stain with a window cloth. Madam Lo did
E not shout at Madam Cheung, and did not ask Madam E
Cheung to remove the water stain urgently.
F F
G (h) Both of them were standing around 2 feet away from G
the Showcase. In other words, at that time, the distance
H H
between the Platform and Madam Cheung was at least
I 3 feet. I find that position X on the Layout Plan should I
be at least 3 feet from the Platform.
J J
K (i) Madam Cheung turned around and moved towards the K
staircase, but was tripped by the Platform and fell on
L L
the Platform.
M M
22. Mr Sakhrani told me that in the afternoon on 13 October 2010,
N N
at a time between 3-4 pm, IDT placed 2 labels (“the Labels”) near the edge
O of the Platform, each label bearing the wording “Mind the Step” and its O
corresponding Chinese. Further, IDT accepted that a yellow strip (“the
P P
Yellow Strip”) were added to the edge of the Platform after the Accident.
Q Q
Platform not unsafe
R R
S 23. Given my findings in paragraph 21 above, I hold that the S
Platform was not unsafe. The Platform has been made conspicuous and
T T
distinct by the different colours separating the Platform and the floor of the
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A A
B B
Exhibition Counter. Further, the Exhibition Counter was well lit and the
C Concealed Light was on before the occurrence of the Accident. Anyone C
inside the Exhibition Counter could easily see the Platform. Further, the
D D
distance between the Showcase and the Platform was about 5 feet, which I
E consider to be sufficient distance. E
F F
Precautions taken later not proof of negligence
G G
24. There is no doubt that IDT added the Yellow Strip and the
H H
Labels to the Platform after the Accident. However, there is equally no
I doubt that precautions taken after the accident is not proof of negligence. I
See Jaguar Cars Ltd v Coates [2004] EWCA Civ, [9]-[11]. See also Gray
J J
v Admiralty [1953] 1 LI LR 14.
K K
25. In order to establish liability by relying on the addition of the
L L
Yellow Strip and the Labels after the Accident, Madam Cheung has to
M prove the absence of the Yellow Strip and the Labels caused or contributed M
to the occurrence of the Accident. The burden of establishing this
N N
causation is on Madam Cheung. The authority on the point is the Court of
O Appeal’s decision in Cheng Loon Yin v SJ and Another [2006] 1 HKLRD O
871.
P P
Q 26. There is no evidence establishing the causation. Q
R R
27. The presence of the Yellow Strip and the Labels after the
S Accidence cannot attribute any liability to IDT. S
T T
No failure in taking reasonable care for the safety of Madam Cheung
U U
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A A
B B
C 28. As Madam Cheung’s employer, IDT had the duty to take C
reasonable care for the safety of Madam Cheung. However, whether IDT
D D
has breached this duty must be viewed in context.
E E
29. In Fong Yuet Ha v Success Employment Services Limited
F F
(CACV 100 of 2012, Date of Reasons for Judgment: 28 December 2012),
G Kwan JA said at §19:- G
H H
“…… it is a question of fact in each case whether it is necessary
for the employer to devise a system of work for the task in hand.
I The judge decided that in the circumstances of this case, the I
need for a system of work to be prescribed was not made out.
In paragraph 38 of the judgment quoted above, the judge
J J
referred to Winter v Cardiff Rural District Council and some of
the cases in Hong Kong that applied this case. They were all
K situations where the court held on the facts that the operation K
was simple and it was reasonable that the employee could be
trusted to exercise his common sense to carry out the operation
L without the need for the employer to prescribe a system of work L
or give specific instruction or advice how the task should be
M done.” M
N 30. In Lam Ka Lok Louis v Swire Properties Management Ltd N
(HCPI 914/2003, Date of Judgment: 30 April 2005), Suffiad J said at §39:-
O O
P “The law does not require an employer to treat its workers, in the P
carrying out of their everyday normal jobs which do not entail
any special risk or damage by the workers, as though they were
Q kindergarten pupils who if not told, would not be aware of the Q
kind of common everyday risks that a reasonable person should
R be aware of.” R
S 31. I have already held that the Platform was not unsafe. It was S
conspicuous and distinct, and was illuminated with the environment
T T
lighting and the Concealed Light. The distance between the Showcase and
U U
V V
- 21 -
A A
B B
the Platform was about 5 feet, which in my view is a sufficient distance. In
C my judgment, by providing all these, IDT has discharged its duty of taking C
reasonable care of its employees, including Madam Cheung. Anyone
D D
paying due care and attention would see the Platform. IDT could entrust
E Madam Cheung to exercise her common sense to pay attention to the E
Platform without giving her any specific instruction.
F F
G 32. In his final submissions, Mr Yau submitted that if Madam G
Cheung was asked to work under a very tight schedule, corresponding
H H
warning or supervision should have been given so as to enable her to go
I about with her work in reasonable safety and not to expose her to I
unnecessary risk. With respect, I am unable to accept this submission.
J J
K (a) I have gone through Madam Cheung’s pleadings, and I K
conclude that the point put forward by Mr Yau is an
L L
unpleaded point. That being the case, Madam Cheung
M is not entitled to run this point. As said by Ribeiro PJ in M
Sinoearn International Ltd v Hyundai – CCECC Joint
N N
Venture (2013) 16 HKCFAR 632 at §30:-
O O
“…… A party must raise all the issues he wishes to raise
P to be dealt with at the trial. Parties are not entitled to P
have issues recently thought up dealt with separately and
Q
piecemeal. The other party is entitled to know from a Q
clear pleading what is the entire case he has to meet so
that he can decide whether particulars should be sought;
R how he should plead in response; what discovery he is R
entitled to; what evidence he should adduce to meet it;
and what points of law should be taken …...”
S S
T (b) Further, while the Platform was not unsafe and was T
conspicuous and obvious to the eyes, it would be
U U
V V
- 22 -
A A
B B
reasonable for IDT to trust Madam Cheung that she
C would exercise her common sense and pay due care C
and attention when stepping on and off the Platform.
D D
E (c) It is not clear what is the “corresponding warning or E
supervision” in Mr Yau’s argument. Further, there is
F F
no evidence showing that the absence of the
G “corresponding warning or supervision” caused the G
Accident. Without evidence establishing causation, Mr
H H
Yau’s argument cannot succeed in any event.
I I
Madam Cheung not paying due care and attention
J J
K 33. In my judgment, IDT is not negligent and has not breached K
any duty. The Accident is not caused by any fault on IDT’s part.
L L
M 34. I find that Madam Cheung did tell Mr Chu in the consultation M
on 8 November 2010 that she fell down carelessly, and I attach full weight
N N
to that description in the 2014 Feb Report.
O O
35. The cause of the Accident is that Madam Cheung had failed to
P P
pay due care and attention to the Platform, which was conspicuous and
Q obvious to the eyes, and would be seen by anyone paying proper attention. Q
R R
IDT not liable
S S
36. Accordingly, IDT is not liable to Madam Cheung. I would
T T
dismiss Madam Cheung’s claim.
U U
V V
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A A
B B
C QUANTUM C
D D
37. Although I am not with Madam Cheung on liability, for the
E sake of completeness, I would set out my opinion on quantum below. E
Injuries caused by the Accident
F F
G 38. Even if Madam Cheung can establish liability, she can only G
require IDT to pay damages in respect of injuries caused by the Accident
H H
but not anything else. This is an important point to be borne in mind.
I I
39. In Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1,
J J
Bharwaney J said:-
K K
“63. …… Salmon LJ, as he then was, posed the question of
L causation in these terms in James v Woodall Duckham L
Construction Co Ltd [1969] 1 WLR 903 at 906C-E:-
M M
“… If a man pretends that he is suffering from great
disability when he knows very well that he is not, and he
N tells his doctor he is suffering from pains all over when N
he feels no pain at all, he may well talk himself into
believing that he is suffering from pain. He will suffer
O from pain in the future, and then he will not be O
malingering because the pain will be real. But that will
P not be a pain which has been caused by the accident: the P
accident will merely be the occasion out of which or
after which the pain occurred, and the pain will have
Q been caused by the man malingering – it will be Q
self-induced.”
R R
……
S 65. Ashworth J in Bowen v Mills & Knight Ltd [1973] 1 S
Lloyd’s Rep. 580 said at p 586 :
T “It is a truism in the law that the defendants who have T
injured a plaintiff must take him as they find him, and if
U U
V V
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A A
B defendants injured a man of unusual personality, and B
that personality is adversely affected by the incident,
C then the defendants must pay compensation therefor C
where they would not have expected to do so with a man
of normal personality. But equally, it is a true statement
D of principle that a plaintiff must take himself as he is and D
not seek to obtain compensation from the defendants for
E
the results which are not from their wrongdoing, but E
from his own personality.”
F …… F
67. The question of causation is essentially a question of fact
G G
for the trial judge to determine, assisted by the evidence of the
medical experts and the evidence of the claimant. ……”
H H
40. In determining the injuries caused by the Accident, I have
I I
considered the 2 joint reports by Dr Ko and Dr Tsoi and other documents in
J the agreed trial bundles. The 1st Joint Report concerns the joint medical J
examination on 30 April 2013. The 2nd Joint Report is a response by the 2
K K
doctors to some documents provided by the parties in 2015.
L L
41. In the 2 joint reports, Dr Ko and Dr Tsoi have different
M M
opinions on some issues. These differences are due to the fact that Dr Ko’s
N opinion is based upon Madam Cheung’s words, while Dr Tsoi has declined N
to act on what Madam Cheung has said, for Dr Tsoi takes the view that
O O
Madam Cheung has exaggerated her injuries.
P P
42. I have concluded that Madam Cheung is an unreliable witness
Q Q
and she has exaggerated her injuries. Accordingly, Dr Tsoi is right in
R R
declining to accept what Madam Cheung has said in making the medical
S
assessment. For this reason, wherever there is difference between Dr Ko’s S
opinion and Dr Tsoi’s opinion, I prefer Dr Tsoi’s opinion.
T T
U U
V V
- 25 -
A A
B B
43. The 2 doctors opined that Madam Cheung had the following
C diagnoses:- C
D D
(a) Right knee contusion injury;
E (b) Chondromalacia right knee; and E
(c) Left knee pain.
F F
G 44. The 2 doctors agreed:- G
H H
(a) The right knee contusion injury should be the sole and
I direct result of the Accident. I
J J
(b) The chondromalacia should be pre-existing and bear no
K direct causal relationship with the injury. K
L L
(c) The left knee pain should bear no direct causal
M relationship with the injury. M
N N
45. In respect of the chondromalacia, Dr Ko in the 2nd Joint
O Report gave an opinion that the Accident triggered the pre-existing O
degeneration to become symptomatic. I do not accept this opinion.
P P
Q (a) Dr Ko has not explained why but for the Accident Q
Madam Cheung would not have developed symptoms,
R R
while knee pain is a frequent complaint of people as
S they age. S
T T
U U
V V
- 26 -
A A
B B
(b) Dr Ko’s opinion is contradicted by his reliance on the
C opinion of the treating doctors that the surgery in C
September 2014 was mainly for her degenerative
D D
changes at the patellofemoral joint and the medial
E tibiofemoral joint and this bears no causal relationship E
with the alleged accident on 13 October 2010.
F F
G (c) Dr Ko has failed to take into account that Madam G
Cheung has exaggerated her injuries.
H H
I 46. In respect of the left knee pain, Mr Yau submitted that this I
should be regarded as caused by the Accident, as a person would naturally
J J
shift his or her body weight to the left-hand side after injuring his or her
K right knee. However, I have found Madam Cheung as an unreliable K
witness, and I have also found that she has exaggerated her injuries. There
L L
is no reliable evidence before me proving the existence of the left knee pain.
M Further, even if the left knee pain exists, both Dr Ko and Dr Tsoi did not M
say that the pain was caused by the Accident. The cause of that pain (if any)
N N
remains unknown.
O O
47. There are documents showing that Madam Cheung started to
P P
seek treatment for complaints of psychiatric symptoms in early 2015.
Q However, there is no plea in the Revised Statement of Damages suggesting Q
that as a result of the Accident, Madam Cheung has suffered from any
R R
psychiatric illness. Further, there is no evidence showing that the Accident
S has caused Madam Cheung to suffer from any psychiatric illness. I am S
unable to find any causal relationship between the Accident and the
T T
psychiatric symptoms complained by Madam Cheung.
U U
V V
- 27 -
A A
B B
C 48. I find that the only injury caused by the Accident is the right C
knee contusion.
D D
E As a result of the injury E
F F
49. Dr Ko takes the view that Madam Cheung’s sick leave should
G be up to around 18 months for treatment of contusion injury to a G
chondromalacia knee. Dr Tsoi’s opinion is that for a simple soft tissue
H H
contusion knee, the sick leave should be limited to 3 months. I agree with
I Dr Tsoi. I
J J
(a) I have found in the above that only the right knee
K contusion is caused by the Accident. Accordingly, in K
considering the appropriate sick leave period, only the
L L
right knee contusion should be considered.
M (b) Dr Ko’s assessment is based upon Madam Cheung’s M
words, which are found to be unreliable in this
N N
judgment.
O O
50. Madam Cheung said that she had jogging 4 times in a month
P P
before the Accident. Dr Ko’s opinion is that jogging is probably not a
Q good choice to Madam Cheung. Dr Tsoi agrees but states that this is Q
mainly due to the pre-existing bilateral chondromalacia. I accept Dr Tsoi’s
R R
opinion. Accordingly, that Madam Cheung is unable to continue to enjoy
S jogging is not related to the Accident. S
T T
51. Both Dr Ko and Dr Tsoi are of the opinion that Madam
U U
V V
- 28 -
A A
B B
Cheung should have no problem in management of her usual activities of
C daily living and self-care activities. The 2 doctors also take the view that C
Madam Cheung would be able to resume her work as a cleaning worker.
D D
52. For loss of earning capacity, Dr Ko’s estimation of permanent
E whole person impairment is 2% - 3%, while Dr Tsoi’s estimation is 1%. E
F F
PSLA
G G
53. I am of the view that Madam Cheung’s situation is similar to
H H
the situations in the following cases:-
I I
(a) In Yip Leung Hoi v Tin Wo Engineering Co Ltd &
J J
Others, (HCPI 1026/2004, Date of Judgment: 29
K March 2007), in the 1st accident, the plaintiff suffered K
from left knee swelling due to joint effusion. There
L L
was no external wound or bruising. The plaintiff could
M not flex his left knee completely because of the M
effusion. Tapping of the effusion from the left knee
N N
was performed with about 20 to 30 cc of clear fluid
O yielded. The plaintiff could flex his left knee better O
after the tapping. In the 2nd accident, the plaintiff
P P
suffered from tenderness and decrease in the range of
Q movement of his left shoulder. There were tenderness Q
and swelling over both knees without loss of range of
R R
movement. His left shoulder and both knees showed
S no abnormality under X-rays. MRI examination S
showed mild left knee effusion, a small medial
T T
meniscus tear and swollen anterior cruciate ligament in
U U
V V
- 29 -
A A
B B
his left knee joint. In his judgment of March 2007,
C Master KH Hui awarded $180,000. C
D D
(b) In Chung Wai Hung v Chung Wai Ming [2009] 4
E HKLRD G5, the plaintiff, a general worker suffered a E
cut injury to his left knee and on examination it was
F F
found he had sustained a deep wound over the left
G anterior knee, deep to the proximal tibia with a minor G
crack over the lateral cortex, contamination of the
H H
wound, and a tear of the patella tendon over the left
I anterior knee. He was hospitalized for nine days during I
which he underwent operative exploration, removal of
J J
the debris, debridement, and repair of the tendon. He
K was a protective knee brace for 6 weeks after surgery. K
At trial he still complained of mild muscle wasting,
L L
walking with a slight limp, persistent pain in the left
M knee and pain with straightening his left leg, running, M
squatting and on stairs. In July 2008, HHJ David Lok
N N
awarded $180,000.
O O
54. I take the view that Madam Cheung’s injury is relatively less
P P
serious than the injuries suffered by the plaintiffs in the aforesaid cases.
Q However, I have to take inflation into account. I come to the conclusion Q
that the appropriate award under this head should be HK$180,000.
R R
S Pre-trial loss of earnings S
T T
55. IDT agrees that at the time of Accident, Madam Cheung was
U U
V V
- 30 -
A A
B B
earning HK$7,188.10 plus MPF per month.
C C
56. I have already found that the appropriate sick leave period
D D
should be 3 months.
E E
57. Both Dr Ko and Dr Tsoi agree that Madam Cheung should be
F F
able to resume her work as a cleaning worker.
G G
58. Accordingly, the appropriate award under this head should be
H H
HK$7,188.10 x 1.05 x 3 months = HK$22,642.50.
I I
J J
K Post-trial loss of earnings K
L L
59. The medical evidence is clear – Madam Cheung can resume
M her work as a cleaning worker. M
N N
60. I refuse to make any award under this head.
O O
Loss of earning capacity
P P
Q 61. It is true that Madam Cheung suffers from some permanent Q
whole person impairment as a result of the Accident. However, in order to
R R
get an award under this head, Madam Cheung has to adduce reliable
S evidence to show how far her earning capacity as a cleaning worker would S
be adversely affected by the impairment. See Chan Wai Tong & Another v
T T
Li Ping Sum [1985] HKLR 176 at 183D, and Cai Guoping v Yim Hok Wing
U U
V V
- 31 -
A A
B B
and Another (CACV 96/2015, Date of Judgment: 9 September 2015) at
C §62. C
D D
62. There is no reliable evidence enabling me to make an award
E under this head. E
Future medical expenses
F F
G 63. Madam Cheung eventually does not make any claim under G
this head.
H H
I Special Damages I
J J
64. Madam Cheung’s claim under this head is divided into 3
K categories – hospitalization, medical follow-ups, and bonesetter treatments. K
The total of the expenses is HK$177,571.10.
L L
M 65. IDT objects to this claim on the ground that there is no M
evidence of efficacy of the bonesetter treatment. Further, Madam Cheung
N N
saw doctors for a long time because of her persistent complaints against all
O the medical opinions and her own admission of improvement to the O
physiotherapist. IDT says that Madam Cheung should only be entitled to
P P
have HK$5,000.00 under this head.
Q Q
66. Under the 1st category, there are 2 items: (a) expenses in
R R
relation to the hospitalization in Hong Kong Baptist Hospital on 20
S December 2010, the total of which is HK$6,525.00; and (b) expenses in S
relation to the hospitalization in Princess Margaret Hospital from 17
T T
September 2014 to 20 September 2014, the total of which is HK$450.00.
U U
V V
- 32 -
A A
B B
C (a) I would allow the first item. The hospitalization in C
December 2010 is relatively close to the time of the
D D
Accident. The appropriate sick leave period is 3
E months, and 20 December 2010 is within the 3-month E
period. It is reasonable that Madam Cheung would
F F
need medical care at this point of time.
G G
(b) I disallow the second item. In the 1st Joint Report
H H
concerning the medical examination on 30 April 2013,
I Dr Ko and Dr Tsoi jointly express an opinion that I
Madam Cheung’s condition should have reached
J J
maximal medical improvement and static condition.
K Hence, the hospitalization in Princess Margaret K
Hospital from 17 September 2014 to 20 September
L L
2014 should not be related to the Accident.
M M
67. The 2nd category is the medical expenses from 9 November
N N
2011 to 6 October 2014, the total of these expenses is HK$58,857.00.
O O
(a) Based upon the 1st Joint Report, Madam Cheung has
P P
already achieved maximal medical improvement by 30
Q April 2013. I disallow all the medical expenses after 30 Q
April 2013.
R R
S (b) However, Madam Cheung should have sick leave for 3 S
months. She would need to consult doctors from time
T T
to time during the 3-month sick leave period. Further,
U U
V V
- 33 -
A A
B B
after the 3-month periods, she would still need some
C medical follow-ups in order to have a full recovery. C
D D
(c) Madam Cheung has exaggerated her injuries. I agree
E with Mr Sakhrani that she attended medical E
consultations more than necessary.
F F
G (d) Being all these in mind, I would allow HK$25,000 G
under this category.
H H
I 68. The 3rd category is the expenses in relation to bonesetter I
treatments, the total of which is HK$117,739.00.
J J
(a) I accept that there is no evidence proving the efficacy
K of those treatments. K
L L
(b) I note that in respect of expenses on nourishing food,
M even in the absence of evidence proving the M
advisability or suitability of the food, the court may still
N N
allow a modest sum. See Yu Ki v Chin Kit Lam [1981]
O HKLR 419 and King Light Industrial Ltd v Lo Wai O
Keung [1994] 3 HKC 54.
P P
Q (c) People in Hong Kong suffering from knee injuries Q
would often consult Chinese bonesetters.
R R
S (d) Bearing all these in mind, I am prepared to allow S
HK$2,000.00 under the 3rd category.
T T
U U
V V
- 34 -
A A
B B
69. Accordingly, the award under this head would be
C HK$6,525.00 + HK$25,000.00 + HK$2,000.00 = HK$33,525.00. C
D D
Findings on quantum
E E
70. My findings on quantum are as follows:-
F F
G HK$ G
(a) PSLA $180,000.00
H H
(b) Pre-trial Loss of Earnings $22,642.50
I (c) Post-trial Loss of Earnings Nil I
(d) Loss of Earning Capacity Nil
J J
(e) Future Medical Expenses Nil
K K
(f) Special Damages $33,525.00
L __________ L
Sub-total $236,167.50
M M
Less: Employee’s Compensation
N N
Received $218,468.60
__________
O Total $17,698.90 O
P P
71. Had I found in favour of Madam Cheung on liability, I would
Q have had awarded the aforesaid sums plus interest to Madam Cheung. Q
R R
CONCLUSION
S S
72. For the reasons above, I dismiss Madam Cheung’s claim.
T T
U U
V V
- 35 -
A A
B B
73. I make the following costs order nisi:-
C C
(a) Costs of this action be paid by Madam Cheung to IDT
D D
(including all costs reserved, if any) with a certificate
E for counsel, to be taxed if not agreed; E
F F
(b) Madam Cheung’s own costs be taxed in accordance
G with the Legal Aid Regulations. G
H H
I I
74. I thank both counsel for the helpful assistance rendered to this
J J
court.
K K
L L
( Liu Man Kin )
Deputy District Judge
M M
N N
Mr Albert Yau, instructed by B Mak & Co, assigned by the Director of
Legal Aid, for the plaintiff
O O
Mr Ashok Sakhrani, instructed by Winnie Leung & Co, for the defendant
P P
Q Q
R R
S S
T T
U U
V V
CHEUNG YUEN YING v. INTEGRATED DISPLAY TECHNOLOGY LTD
A A
B B
DCPI 2109/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E PERSONAL INJURIES ACTION NO 2109 OF 2013 E
F F
-------------------------
G BETWEEN G
CHEUNG YUEN YING Plaintiff
H H
and
I INTEGRATED DISPLAY TECHNOLOGY LIMITED Defendant I
-------------------------
J J
K Before: Deputy District Judge Liu Man Kin in Court K
Dates of Hearing: 28-30 October 2015
L L
Date of Judgment: 16 November 2015
M M
-------------------------
N N
JUDGMENT
O ------------------------- O
P P
INTRODUCTION
Q Q
1. This is a personal injuries claim by the plaintiff (“Madam
R R
Cheung”) against the defendant (“IDT”), in relation to an accident (“the
S Accident”) happened at the Hong Kong Convention and Exhibition Centre S
in Wanchai (“the Exhibition Centre”) during the Hong Kong Electronics
T T
Fair 2010. IDT participated in that exhibition and had an exhibition
U U
V V
-2-
A A
B B
counter (“the Exhibition Counter”) in the Exhibition Centre, in which there
C was a booth (“the Booth”). The Accident occurred on 13 October 2010 at C
about 9:30 am. At the time of the Accident, Madam Cheung was employed
D D
by IDT to work as a cleaner at the Exhibition Counter.
E E
2. A photo (“the Photo”) and a layout plan (“the Layout Plan”)
F F
exhibited to the witness statement of Madam Lo Yuen Kam (“Madam Lo”,
G IDT’s administrative manager) as “LYK-2” and “LYK-3” respectively G
would illustrate the Exhibition Counter and its environment. For ease of
H H
reference, the said photo and layout plan are annexed to this judgment as
I Annex 1 and Annex 2. I
J J
3. As shown in the Photo and in the Layout Plan, the Booth was
K inside the Exhibition Counter and had 2 floors. There were some display K
showcases inside the Exhibition Counter and around the Booth. The lower
L L
floor of the Booth was elevated from the ground. The height of the
M elevated platform (“the Platform”) was about 4 inches. There was M
concealed light (“the Concealed Light”) under the Platform. There was a
N N
pantry on the 2nd floor of the Booth.
O O
4. On 13 October 2010, just before the occurrence of the
P P
Accident, Madam Lo instructed Madam Cheung to clean the showcase
Q marked as Y (“the Showcase”) on the Layout Plan by using a designated Q
cloth. Madam Cheung at that time stood at the position marked as X. I will
R R
set out my finding on the exact location of X later in this judgment. Having
S received the instruction from Madam Lo, Madam Cheung turned around to S
move towards the Platform to go to the Pantry to get the cloth. Madam
T T
Cheung fell at the edge of the Platform. The position where Madam
U U
V V
-3-
A A
B B
Cheung fell is marked as Z on the Layout Plan. This is the Accident.
C C
MADAM CHEUNG’S CASE
D D
E 5. Madam Cheung’s claims that the Accident was caused or E
contributed by the negligence, the breach of common duty of care under
F F
the Occupier’s Liability Ordinance, breach of statutory duties under the
G Occupational Safety Health Ordinance, and/or breach of implied terms of G
contract of employment by IDT. The essence of all these claims is that the
H H
Platform was unsafe. According to Madam Cheung’s case, the Platform
I was unsafe because it was “an elevated platform of about the (sic) 4 inches I
high which had not been made conspicuous and distinct in the exhibition
J J
counter designed or set up by the defendant” – as per paragraph 4(d) of the
K statement of claim. K
L L
6. As per the revised statement of damages, Madam Cheung
M claims the following damages:- M
N N
HK$
O (a) PSLA $350,000.00 O
(b) Pre-trial Loss of Earnings $361,633.24
P P
(c) Post-trial Loss of Earnings $510,678.00
Q (d) Loss of Earning Capacity $100,000.00 Q
(e) Future Medical Expenses reserved
R R
(f) Special Damages $188,890.60
S ___________ S
Sub-total $1,511,201.84
T Less: Employee’s Compensation T
Received $218,468.60
U U
V V
-4-
A A
B B
___________
Total $1,292,733.24
C C
7. Madam Cheung expressly waived any amount of damages to
D D
be awarded which exceeds HK$1 million to give this court jurisdiction to
E hear her claim. E
F F
IDT’S CASE
G G
H
8. IDT denies liability. IDT’s case is that the Platform itself was H
brown and the floor of the exhibition counter was covered by green carpet.
I I
The Exhibition Counter was well lit. The Concealed Light was on. The
J Platform was firm and secured. The Exhibition Counter was well spaced. J
Madam Cheung tripped because she was not paying attention to where she
K K
was walking and was oblivious of the environment at the Exhibition
L Counter. L
M M
9. As an alternative, IDT claims that the Accident was caused
N materially or contributed by the negligence of Madam Cheung. N
O O
10. On the question of quantum, as per IDT’s answer to the
P revised statement of damages, IDT claims that even if IDT is entirely liable, P
the quantum should not be more than the followings:-
Q Q
R HK$ R
(a) PSLA $80,000.00
S S
(b) Pre-trial Loss of Earnings $12,453.38
T (c) Post-trial Loss of Earning Nil T
(d) Loss of Earning Capacity Nil
U U
V V
-5-
A A
B B
(e) Future Medical Expenses Nil
C (f) Special Damages $5,000.00 C
_________
Total $97,453.38 plus interest
D D
E THE EVIDENCE E
F F
11. Each party has called 1 factual witness. Madam Cheung’s has
G
given evidence in support of her case. IDT’s factual witness is Madam Lo. G
H
Apart from the evidence from these witnesses, the documents in the agreed H
trial bundles, including 2 joint medical reports prepared by Dr Ko Put Shui,
I I
Peter (“Dr Ko”) appointed by Madam Cheung and Dr Tsoi Chi Wah,
J Danny (“Dr Tsoi”) appointed by IDT dated 15 July 2013 (“the 1 st Joint J
Report”) and 22 August 2015 (“the 2 Joint Report”) respectively, and the
nd
K K
video footages (“the Video Footages”) produced by IDT showing the
L environment of the Exhibition Counter in the afternoon on 13 October L
2010 and on 14 October 2010, are also evidence before this Court.
M M
N 12. Both Dr Ko and Dr Tsoi are specialists in Orthopaedics & N
Traumatology. I accept that both of them are qualified to give expert
O O
evidence in this case.
P P
13. The gist of Madam Cheung’s evidence is as follows:-
Q Q
R (a) Madam Cheung began to work in IDT on 31 July 2007 R
as a cleaner on contract terms.
S S
(b) One week before the Hong Kong Electronics Fair 2010,
T Madam Lo instructed Madam Cheung to go to the T
Exhibition Centre on 13 October 2010, which was the
U U
V V
-6-
A A
B B
first day of the exhibition, to clean the Exhibition
C Counter and to serve clients with tea. C
D D
(c) On 13 October 2010, Madam Cheung arrived the
E Exhibition Counter at around 8 am and started the E
cleaning work there. This is accepted by IDT.
F F
G (d) Before she finished the cleaning work, at around 8:45 G
am, the boss of IDT arrived and Madam Cheung had to
H H
prepare coffee and tea for everyone. Reporters and
I clients came one after another at 9:20 am. There were I
around 30 people at the Exhibition Counter. Madam
J J
Lo only arrived at around 9:30 am.
K K
(e) After arriving the Exhibition Counter, Madam Lo
L L
found that the Showcase was not entirely clean, and she
M roared at Madam Cheung furiously and ordered M
Madam Cheung to get a designated cloth to clean the
N N
Showcase again.
O O
(f) When Madam Lo was speaking to Madam Cheung,
P P
Madam Lo was facing the Platform and the Showcase
Q was immediately behind Madam Lo. Madam Cheung Q
was facing Madam Lo, with the Platform behind
R R
Madam Cheung’s back. The distance between Madam
S Cheung and the Showcase was around 18 inches. S
T T
(g) Madam Cheung’s evidence is that the distance between
U U
V V
-7-
A A
B B
the Showcase and the Platform was about 1 meter. So
C according to Madam Cheung, position X would be a C
point around 21 inches away from the Platform.
D D
E (h) Madam Cheung followed the order, turned around and E
rushed towards the Pantry to get the cloth. When she
F F
was about to reach the Platform, she tripped over and
G lost balance. She fell towards her right-hand side and G
fell on the ground. Feeling embarrassed, she got up by
H H
herself immediately. She endured the pain and
I continued to work. I
J J
(i) There was no lighting or special direction on the
K Platform. The colour of the floor and the colour of the K
Platform were very similar, i.e. grey in colour.
L L
M (j) After the Accident, a Japanese client also fell without M
noticing the Platform.
N N
O (k) At about 10:30 a.m. on 13 October 2010, the big boss O
of IDT, Mr. Chan, also tripped once because he did not
P P
see the elevated platform. Fortunately, he did not fall
Q on the ground. Q
(l) On 14 October 2010, when Madam Cheung returned to
R R
work at the Exhibition Counter, there were
S black-yellow tapes and “mind your step” labels on the S
floor.
T T
U U
V V
-8-
A A
B B
(m) Madam Cheung continued to work in the Exhibition
C Centre until 16 October 2010. Thereafter, she sought C
various treatments.
D D
E (n) Madam Cheung injured her right knee in the Accident. E
Gradually, since she started to shift her body weight to
F F
the left side to alleviate the pain on her right knee, her
G left knee also started to have pain. Since the right knee G
pain was so bad, she decided to undergo an arthrosopic
H H
chondroplasty operation on 18 September 2014.
I I
(o) In early 2015, Madam Cheung started to seek treatment
J J
for complaints of psychiatric symptoms.
K K
(p) Madam Cheung said that as a result of the Accident,
L L
she was unable to do any job. She had found a job as a
M cleaning worker in the airport in September 2012, but M
she was unable to do the job and quitted after 2 days.
N N
She also tried to work as a salesperson at the tuck shop
O in a school on 2 October 2012, but since the job O
requiring her to stand for a long time and to move lunch
P P
boxes, she quitted the job after one day.
Q 14. The essence of Madam Lo’s evidence is as follows:- Q
R R
(a) Madam Lo was and is the administrative manager of
S IDT. S
T T
(b) Madam Cheung was employed by IDT as an Amah
U U
V V
-9-
A A
B B
since 8 June 2009.
C C
(c) Madam Lo and Madam Cheung were responsible for
D D
the cleanliness of the Exhibition Counter. The
E exhibition was from 13 to 16 October 2010. E
F F
(d) On 13 October 2010 at about 9:30 am, the exhibition
G had not yet started. There was no reporter or client G
inside the Exhibition Counter. The staff members were
H H
busily doing preparation at the Exhibition Counter.
I The lighting of the Booth, including the Concealed I
Light, had been switched on. Madam Lo was standing
J J
on the green carpet observing the display showcases.
K K
(e) Madam Lo discovered that there was water stain on the
L L
glass of the Showcase. She asked Madam Cheung to
M come to see the water stain, and instructed Madam M
Cheung to clean it with a window cloth. At this point
N N
of time, Madam Lo and Madam Cheung were standing
O side by side, both of them were facing the Showcase, O
and Madam Cheung was standing at the right-hand side
P P
of Madam Lo. Both of them were standing around 2
Q feet away from the Showcase. Q
R R
(f) Madam Lo did not shout at Madam Cheung, but she
S only asked Madam Cheung to get the cloth to remove S
the water stain. She did not ask Madam Cheung to do it
T T
urgently.
U U
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- 10 -
A A
B B
C (g) Madam Cheung turned around and went to the stairs. C
She was tripped by the Platform and fell on the
D D
Platform. She used one of her hands to support herself,
E and shortly thereafter, stood up and walked up the E
stairs.
F F
G (h) Madam Lo produced the Photo and the Layout Plan to G
show the environment of the Exhibition Counter and
H H
the Platform.
I I
15. I find that Madam Cheung is an unreliable witness. Her
J J
evidence is contradicted by documents and the Video Footages in many
K aspects, and by medical evidence produced by her. There can be no K
satisfactory explanation as to these discrepancies. The only explanation is
L L
that Madam Cheung confused on some essential issues, and she has also
M exaggerated her injuries. M
N N
(a) Madam Cheung insisted that the Platform and the floor
O of the Exhibit Counter were of similar colour, ie grey. O
This is simply incorrect. As shown by the Photo and
P P
the Video Footages, the Platform was brown in colour,
Q while the floor of the Exhibit Counter was covered by Q
green carpet.
R R
S (b) Madam Cheung in her supplemental statement dated S
13 February 2015 said that “there was no lighting or
T T
special direction on the platform”. Under
U U
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A A
B B
cross-examination, Madam Cheung agreed that the
C environment lighting was bright. However, when C
being shown the Photo and the Video Footages (which
D D
showed that the Exhibition Counter and the Platform
E were well lit), Madam Cheung kept on saying that there E
was no lighting. Madam Cheung’s saying that “there
F F
was no lighting …… on the platform” is unreliable.
G G
(c) As shown in the Video Footages, the distance between
H H
the Showcase and the Platform should be much more
I than 1 meter. That distance should be about 5 feet. I
J J
(d) When Madam Lo was telling Madam Cheung that a
K part of the Showcase was unclean, Madam Lo would K
point to that part to show it to Madam Cheung. In
L L
doing so, naturally both Madam Lo and Madam
M Cheung would face the Showcase and stand close to the M
Showcase. As to the respective positions of Madam Lo
N N
and Madam Cheung at this point of time, Madam
O Cheung’s account is inherently improbable. O
(e) It is inherently improbable that while there were
P P
reporters and clients inside the Exhibition Counter,
Q Madam Lo would roar at Madam Cheung furiously. Q
R R
(f) Mr Ashok Sakhrani, Counsel for IDT, referred Madam
S Cheung to a medical report produced by Madam S
Cheung dated 13 February 2014 (“the 2014 Feb
T T
Report”). That medical report was written by Mr Chu
U U
V V
- 12 -
A A
B B
Hong Man (“Mr Chu”), a registered Chinese Medicine
C Practitioner, concerning the consultation on 8 C
November 2010. In that medical report, Mr Chu said
D D
“The patient fell down floor carelessly 3 weeks ago,
E causing the above symptom.” Mr Sakhrani asked E
Madam Cheung why she told her doctor that she fell
F F
down floor carelessly. Madam Cheung denied she had
G told this to her doctor. I reject this explanation. The G
doctor would not state this in the report unless Madam
H H
Cheung told him. Further, if there is anything incorrect
I in the medical report, there was ample time before trial I
to ask Mr Chu to make the necessary correction.
J J
K (g) Mr Sakhrani also referred Madam Cheung to a K
physiotherapy report dated 15 June 2012 by Ms CN
L L
Chan of Kwong Wah Hospital. In that report, Ms Chan
M recorded that the first physiotherapy appointment was M
on 1 February 2011. Madam Cheung completed a total
N N
of 12 sessions of physiotherapy and was discharged on
O 11 May 2011 as her progression was static. Madam O
Cheung also reported 80% overall subjective
P P
improvement. Mr Sakhrani asked Madam Cheung that
Q according to this report, her condition was much Q
improved by May 2011. Madam Cheung denied and
R R
said she did not tell the physiotherapist these. For the
S same reasons set out in subparagraph (f) above, I reject S
this explanation.
T T
U U
V V
- 13 -
A A
B B
(h) In the 1st Joint Report (concerning the examination of
C Madam Cheung on 30 April 2013), Dr Ko and Dr Tsoi C
said in paragraph 10.9 of the report:-
D D
E
“Resumption of duty E
Dr. Ko opines that Madam Cheung should be able to
F resume her work as a cleaning worker with mild F
impairment of her work efficiency and effectiveness as
she may have difficulty in lifting of heavy weight,
G G
squatting and kneeling down. Regarding the effect of
the soft tissue contusion of her right knee, Dr. Tsoi
H opines that Madam Cheung can resume her pre-injury H
job in almost full capacity.”
I I
In the light of this joint report, Madam Cheung’s claim
J that she is unable to do any job as a result of the J
Accident is clearly an exaggeration.
K K
L L
(i) Paragraph 10.3 of the 1st Joint Report records the
M
following:- M
N “At the time of this assessment, which is about 2.5 years N
after the alleged accident, Madam Cheung complains of
O persistent right anterior knee pain with limited walking O
tolerance and difficulty in walking on stairs. She also
has similar complains on the left knee. Examination
P findings showed decrease active range of motion of the P
right knee and obvious resistance present on trying to
Q
have passive flexion further. The manifestation of signs Q
and performance at the physical examination is quite
disproportionate to the magnitude of the injury that she
R sustained on 13 October 2010. It cannot be fully R
explained on her MRI findings which only showed
chondromalacia changes without any significant
S S
structural abnormality or injury. Some degree of
magnification or exaggeraton could not be excluded. It
T is not uncommon in this situation because of the long T
duration of treatment with persistent symptoms. It could
be a gesture of the injured individual trying to impress
U U
V V
- 14 -
A A
B the examiner and may be taken as a means trying to B
express the degree of suffering and pain because of the
C poor communications skills, which is not unexpected in C
view of the education background.
D D
Dr. Tsoi would like to summarize that Madam Cheung
was exaggerating her disability. There is no medical
E explanation for her failure in single leg standing and loss E
of flexion 30 deg. The absence of muscle wasting
F further suggested that her “injured” right knee is not F
worse than the uninjured left one.”
G G
Significantly, Dr Ko has not expressed any
H disagreement with Dr Tsoi on this point. This is clear H
evidence showing that Madam Cheung has
I I
exaggerated her injuries.
J J
16. Since I have concluded that Madam Cheung’s evidence is
K K
unreliable, I do not accept the allegation that a Japanese client fell on the
L L
Platform, and the allegation that the big boss of IDT tripped by the
M
Platform. Save and except the bare assertions by Madam Cheung, these M
allegations are unsupported by any evidence.
N N
O 17. I reject Madam Cheung’s evidence. Save and except the O
matters accepted by IDT, the matters shown in the documents in the agreed
P P
trial bundles and in the Video Footages, and the admissions made by
Q Madam Cheung which are adverse to her case, I would not rely upon Q
Madam Cheung’s evidence to make any findings.
R R
S 18. I find that Madam Lo is an honest and reliable witness. S
T T
(a) Madam Lo has given clear and consistent evidence.
U U
V V
- 15 -
A A
B B
She was not shaken in cross-examination. She was not
C evasive, and did not exaggerate anything. Her C
evidence is credible and inherently probable.
D D
E (b) As said above, in respect of the respective positions of E
Madam Cheung and Madam Lo when Madam Lo was
F F
asking Madam Cheung to clean the Showcase, I am of
G the view that Madam Cheung’s account is inherent G
improbable. Madam Lo’s account is the truth.
H H
I (c) Mr Albert Yau, Counsel for Madam Cheung, I
challenged Madam Lo during cross-examination that
J J
Madam Lo’s account of the respective positions could
K not be true, for Madam Lo said that she was speaking to K
Madam Cheung face to face, and when 2 persons
L L
standing side by side, they could not speak to each
M other face to face. With respect to Mr Yau, I do not M
regard this as a valid challenge. When 2 persons are
N N
standing side by side, by slightly turning their heads,
O they can certainly speak to each other face to face. O
P P
(d) Madam Lo said when she spoke to Madam Cheung, she
Q did not raise her voice and only spoke in a normal way Q
because it was a public venue. When being pressed in
R R
cross-examination, Madam Lo said she would not say
S she would speak politely to colleagues but she would S
speak gently and that because she needed to manage
T T
her colleagues, and hence she would need to give
U U
V V
- 16 -
A A
B B
instructions. These answers are in accordance with
C common sense. C
D D
(e) Madam Lo said she did not urge Madam Cheung to
E clean the Showcase urgently. She said she made no E
complaint against Madam Cheung. She said she and
F F
Madam Cheung had cleaned together that morning, and
G there was nothing particular about the Showcase. I G
accept the evidence. Madam Cheung was continuously
H H
doing cleaning works at the Exhibition Counter that
I morning. In fact, Madam Lo said that all the staff I
members were busy at the Exhibition Counter. There
J J
was only a water stain on the Showcase. Being an
K administrative manager in charge of the cleanliness of K
the Exhibition Counter, Madam Lo certainly would be
L L
aware of the fact that Madam Cheung had to do other
M cleaning works (including cleaning other showcases M
inside the Exhibition Counter), which would not be less
N N
important than removing the water stain on the
O Showcase. It is unlikely that Madam Lo would instruct O
Madam Cheung to put aside all other cleaning works
P P
and to remove the water stain at once.
Q Q
19. I accept Madam Lo’s evidence.
R R
S 20. Wherever there is conflict between Madam Cheung’s S
evidence and Madam Lo’s evidence, I prefer Madam Lo’s evidence.
T T
U U
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- 17 -
A A
B B
LIABILITY
C C
21. Based upon the evidence which I found to be reliable, I make
D D
the following factual findings:-
E E
(a) The environment of the Exhibition Counter and the
F F
Booth is shown in the Photo and in the Layout Plan.
G G
(b) The height of the Platform was about 4 inches from the
H H
Floor.
I I
(c) The Platform was brown and the floor of the exhibition
J J
counter was covered by green carpet.
K K
(d) Before the occurrence of the Accident, the Exhibition
L L
Counter was well lit. The Concealed Light was on.
M M
(e) The distance between the Showcase and the Platform
N N
was about 5 feet.
O (f) Before the occurrence of the Accident, Madam Cheung O
had worked at the Exhibition Counter for about 1½
P P
hours. The exhibition had not yet started. There was
Q no reporter or client inside the Exhibition Counter. The Q
staff members were busily doing preparation at the
R R
Exhibition Counter.
S S
(g) Madam Lo asked Madam Cheung to come to the
T T
Showcase to see the water stain thereon. They were
U U
V V
- 18 -
A A
B B
standing side by side facing the Showcase, and Madam
C Cheung was standing at the right-hand side of Madam C
Lo. Madam Lo instructed Madam Cheung to remove
D D
the water stain with a window cloth. Madam Lo did
E not shout at Madam Cheung, and did not ask Madam E
Cheung to remove the water stain urgently.
F F
G (h) Both of them were standing around 2 feet away from G
the Showcase. In other words, at that time, the distance
H H
between the Platform and Madam Cheung was at least
I 3 feet. I find that position X on the Layout Plan should I
be at least 3 feet from the Platform.
J J
K (i) Madam Cheung turned around and moved towards the K
staircase, but was tripped by the Platform and fell on
L L
the Platform.
M M
22. Mr Sakhrani told me that in the afternoon on 13 October 2010,
N N
at a time between 3-4 pm, IDT placed 2 labels (“the Labels”) near the edge
O of the Platform, each label bearing the wording “Mind the Step” and its O
corresponding Chinese. Further, IDT accepted that a yellow strip (“the
P P
Yellow Strip”) were added to the edge of the Platform after the Accident.
Q Q
Platform not unsafe
R R
S 23. Given my findings in paragraph 21 above, I hold that the S
Platform was not unsafe. The Platform has been made conspicuous and
T T
distinct by the different colours separating the Platform and the floor of the
U U
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- 19 -
A A
B B
Exhibition Counter. Further, the Exhibition Counter was well lit and the
C Concealed Light was on before the occurrence of the Accident. Anyone C
inside the Exhibition Counter could easily see the Platform. Further, the
D D
distance between the Showcase and the Platform was about 5 feet, which I
E consider to be sufficient distance. E
F F
Precautions taken later not proof of negligence
G G
24. There is no doubt that IDT added the Yellow Strip and the
H H
Labels to the Platform after the Accident. However, there is equally no
I doubt that precautions taken after the accident is not proof of negligence. I
See Jaguar Cars Ltd v Coates [2004] EWCA Civ, [9]-[11]. See also Gray
J J
v Admiralty [1953] 1 LI LR 14.
K K
25. In order to establish liability by relying on the addition of the
L L
Yellow Strip and the Labels after the Accident, Madam Cheung has to
M prove the absence of the Yellow Strip and the Labels caused or contributed M
to the occurrence of the Accident. The burden of establishing this
N N
causation is on Madam Cheung. The authority on the point is the Court of
O Appeal’s decision in Cheng Loon Yin v SJ and Another [2006] 1 HKLRD O
871.
P P
Q 26. There is no evidence establishing the causation. Q
R R
27. The presence of the Yellow Strip and the Labels after the
S Accidence cannot attribute any liability to IDT. S
T T
No failure in taking reasonable care for the safety of Madam Cheung
U U
V V
- 20 -
A A
B B
C 28. As Madam Cheung’s employer, IDT had the duty to take C
reasonable care for the safety of Madam Cheung. However, whether IDT
D D
has breached this duty must be viewed in context.
E E
29. In Fong Yuet Ha v Success Employment Services Limited
F F
(CACV 100 of 2012, Date of Reasons for Judgment: 28 December 2012),
G Kwan JA said at §19:- G
H H
“…… it is a question of fact in each case whether it is necessary
for the employer to devise a system of work for the task in hand.
I The judge decided that in the circumstances of this case, the I
need for a system of work to be prescribed was not made out.
In paragraph 38 of the judgment quoted above, the judge
J J
referred to Winter v Cardiff Rural District Council and some of
the cases in Hong Kong that applied this case. They were all
K situations where the court held on the facts that the operation K
was simple and it was reasonable that the employee could be
trusted to exercise his common sense to carry out the operation
L without the need for the employer to prescribe a system of work L
or give specific instruction or advice how the task should be
M done.” M
N 30. In Lam Ka Lok Louis v Swire Properties Management Ltd N
(HCPI 914/2003, Date of Judgment: 30 April 2005), Suffiad J said at §39:-
O O
P “The law does not require an employer to treat its workers, in the P
carrying out of their everyday normal jobs which do not entail
any special risk or damage by the workers, as though they were
Q kindergarten pupils who if not told, would not be aware of the Q
kind of common everyday risks that a reasonable person should
R be aware of.” R
S 31. I have already held that the Platform was not unsafe. It was S
conspicuous and distinct, and was illuminated with the environment
T T
lighting and the Concealed Light. The distance between the Showcase and
U U
V V
- 21 -
A A
B B
the Platform was about 5 feet, which in my view is a sufficient distance. In
C my judgment, by providing all these, IDT has discharged its duty of taking C
reasonable care of its employees, including Madam Cheung. Anyone
D D
paying due care and attention would see the Platform. IDT could entrust
E Madam Cheung to exercise her common sense to pay attention to the E
Platform without giving her any specific instruction.
F F
G 32. In his final submissions, Mr Yau submitted that if Madam G
Cheung was asked to work under a very tight schedule, corresponding
H H
warning or supervision should have been given so as to enable her to go
I about with her work in reasonable safety and not to expose her to I
unnecessary risk. With respect, I am unable to accept this submission.
J J
K (a) I have gone through Madam Cheung’s pleadings, and I K
conclude that the point put forward by Mr Yau is an
L L
unpleaded point. That being the case, Madam Cheung
M is not entitled to run this point. As said by Ribeiro PJ in M
Sinoearn International Ltd v Hyundai – CCECC Joint
N N
Venture (2013) 16 HKCFAR 632 at §30:-
O O
“…… A party must raise all the issues he wishes to raise
P to be dealt with at the trial. Parties are not entitled to P
have issues recently thought up dealt with separately and
Q
piecemeal. The other party is entitled to know from a Q
clear pleading what is the entire case he has to meet so
that he can decide whether particulars should be sought;
R how he should plead in response; what discovery he is R
entitled to; what evidence he should adduce to meet it;
and what points of law should be taken …...”
S S
T (b) Further, while the Platform was not unsafe and was T
conspicuous and obvious to the eyes, it would be
U U
V V
- 22 -
A A
B B
reasonable for IDT to trust Madam Cheung that she
C would exercise her common sense and pay due care C
and attention when stepping on and off the Platform.
D D
E (c) It is not clear what is the “corresponding warning or E
supervision” in Mr Yau’s argument. Further, there is
F F
no evidence showing that the absence of the
G “corresponding warning or supervision” caused the G
Accident. Without evidence establishing causation, Mr
H H
Yau’s argument cannot succeed in any event.
I I
Madam Cheung not paying due care and attention
J J
K 33. In my judgment, IDT is not negligent and has not breached K
any duty. The Accident is not caused by any fault on IDT’s part.
L L
M 34. I find that Madam Cheung did tell Mr Chu in the consultation M
on 8 November 2010 that she fell down carelessly, and I attach full weight
N N
to that description in the 2014 Feb Report.
O O
35. The cause of the Accident is that Madam Cheung had failed to
P P
pay due care and attention to the Platform, which was conspicuous and
Q obvious to the eyes, and would be seen by anyone paying proper attention. Q
R R
IDT not liable
S S
36. Accordingly, IDT is not liable to Madam Cheung. I would
T T
dismiss Madam Cheung’s claim.
U U
V V
- 23 -
A A
B B
C QUANTUM C
D D
37. Although I am not with Madam Cheung on liability, for the
E sake of completeness, I would set out my opinion on quantum below. E
Injuries caused by the Accident
F F
G 38. Even if Madam Cheung can establish liability, she can only G
require IDT to pay damages in respect of injuries caused by the Accident
H H
but not anything else. This is an important point to be borne in mind.
I I
39. In Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1,
J J
Bharwaney J said:-
K K
“63. …… Salmon LJ, as he then was, posed the question of
L causation in these terms in James v Woodall Duckham L
Construction Co Ltd [1969] 1 WLR 903 at 906C-E:-
M M
“… If a man pretends that he is suffering from great
disability when he knows very well that he is not, and he
N tells his doctor he is suffering from pains all over when N
he feels no pain at all, he may well talk himself into
believing that he is suffering from pain. He will suffer
O from pain in the future, and then he will not be O
malingering because the pain will be real. But that will
P not be a pain which has been caused by the accident: the P
accident will merely be the occasion out of which or
after which the pain occurred, and the pain will have
Q been caused by the man malingering – it will be Q
self-induced.”
R R
……
S 65. Ashworth J in Bowen v Mills & Knight Ltd [1973] 1 S
Lloyd’s Rep. 580 said at p 586 :
T “It is a truism in the law that the defendants who have T
injured a plaintiff must take him as they find him, and if
U U
V V
- 24 -
A A
B defendants injured a man of unusual personality, and B
that personality is adversely affected by the incident,
C then the defendants must pay compensation therefor C
where they would not have expected to do so with a man
of normal personality. But equally, it is a true statement
D of principle that a plaintiff must take himself as he is and D
not seek to obtain compensation from the defendants for
E
the results which are not from their wrongdoing, but E
from his own personality.”
F …… F
67. The question of causation is essentially a question of fact
G G
for the trial judge to determine, assisted by the evidence of the
medical experts and the evidence of the claimant. ……”
H H
40. In determining the injuries caused by the Accident, I have
I I
considered the 2 joint reports by Dr Ko and Dr Tsoi and other documents in
J the agreed trial bundles. The 1st Joint Report concerns the joint medical J
examination on 30 April 2013. The 2nd Joint Report is a response by the 2
K K
doctors to some documents provided by the parties in 2015.
L L
41. In the 2 joint reports, Dr Ko and Dr Tsoi have different
M M
opinions on some issues. These differences are due to the fact that Dr Ko’s
N opinion is based upon Madam Cheung’s words, while Dr Tsoi has declined N
to act on what Madam Cheung has said, for Dr Tsoi takes the view that
O O
Madam Cheung has exaggerated her injuries.
P P
42. I have concluded that Madam Cheung is an unreliable witness
Q Q
and she has exaggerated her injuries. Accordingly, Dr Tsoi is right in
R R
declining to accept what Madam Cheung has said in making the medical
S
assessment. For this reason, wherever there is difference between Dr Ko’s S
opinion and Dr Tsoi’s opinion, I prefer Dr Tsoi’s opinion.
T T
U U
V V
- 25 -
A A
B B
43. The 2 doctors opined that Madam Cheung had the following
C diagnoses:- C
D D
(a) Right knee contusion injury;
E (b) Chondromalacia right knee; and E
(c) Left knee pain.
F F
G 44. The 2 doctors agreed:- G
H H
(a) The right knee contusion injury should be the sole and
I direct result of the Accident. I
J J
(b) The chondromalacia should be pre-existing and bear no
K direct causal relationship with the injury. K
L L
(c) The left knee pain should bear no direct causal
M relationship with the injury. M
N N
45. In respect of the chondromalacia, Dr Ko in the 2nd Joint
O Report gave an opinion that the Accident triggered the pre-existing O
degeneration to become symptomatic. I do not accept this opinion.
P P
Q (a) Dr Ko has not explained why but for the Accident Q
Madam Cheung would not have developed symptoms,
R R
while knee pain is a frequent complaint of people as
S they age. S
T T
U U
V V
- 26 -
A A
B B
(b) Dr Ko’s opinion is contradicted by his reliance on the
C opinion of the treating doctors that the surgery in C
September 2014 was mainly for her degenerative
D D
changes at the patellofemoral joint and the medial
E tibiofemoral joint and this bears no causal relationship E
with the alleged accident on 13 October 2010.
F F
G (c) Dr Ko has failed to take into account that Madam G
Cheung has exaggerated her injuries.
H H
I 46. In respect of the left knee pain, Mr Yau submitted that this I
should be regarded as caused by the Accident, as a person would naturally
J J
shift his or her body weight to the left-hand side after injuring his or her
K right knee. However, I have found Madam Cheung as an unreliable K
witness, and I have also found that she has exaggerated her injuries. There
L L
is no reliable evidence before me proving the existence of the left knee pain.
M Further, even if the left knee pain exists, both Dr Ko and Dr Tsoi did not M
say that the pain was caused by the Accident. The cause of that pain (if any)
N N
remains unknown.
O O
47. There are documents showing that Madam Cheung started to
P P
seek treatment for complaints of psychiatric symptoms in early 2015.
Q However, there is no plea in the Revised Statement of Damages suggesting Q
that as a result of the Accident, Madam Cheung has suffered from any
R R
psychiatric illness. Further, there is no evidence showing that the Accident
S has caused Madam Cheung to suffer from any psychiatric illness. I am S
unable to find any causal relationship between the Accident and the
T T
psychiatric symptoms complained by Madam Cheung.
U U
V V
- 27 -
A A
B B
C 48. I find that the only injury caused by the Accident is the right C
knee contusion.
D D
E As a result of the injury E
F F
49. Dr Ko takes the view that Madam Cheung’s sick leave should
G be up to around 18 months for treatment of contusion injury to a G
chondromalacia knee. Dr Tsoi’s opinion is that for a simple soft tissue
H H
contusion knee, the sick leave should be limited to 3 months. I agree with
I Dr Tsoi. I
J J
(a) I have found in the above that only the right knee
K contusion is caused by the Accident. Accordingly, in K
considering the appropriate sick leave period, only the
L L
right knee contusion should be considered.
M (b) Dr Ko’s assessment is based upon Madam Cheung’s M
words, which are found to be unreliable in this
N N
judgment.
O O
50. Madam Cheung said that she had jogging 4 times in a month
P P
before the Accident. Dr Ko’s opinion is that jogging is probably not a
Q good choice to Madam Cheung. Dr Tsoi agrees but states that this is Q
mainly due to the pre-existing bilateral chondromalacia. I accept Dr Tsoi’s
R R
opinion. Accordingly, that Madam Cheung is unable to continue to enjoy
S jogging is not related to the Accident. S
T T
51. Both Dr Ko and Dr Tsoi are of the opinion that Madam
U U
V V
- 28 -
A A
B B
Cheung should have no problem in management of her usual activities of
C daily living and self-care activities. The 2 doctors also take the view that C
Madam Cheung would be able to resume her work as a cleaning worker.
D D
52. For loss of earning capacity, Dr Ko’s estimation of permanent
E whole person impairment is 2% - 3%, while Dr Tsoi’s estimation is 1%. E
F F
PSLA
G G
53. I am of the view that Madam Cheung’s situation is similar to
H H
the situations in the following cases:-
I I
(a) In Yip Leung Hoi v Tin Wo Engineering Co Ltd &
J J
Others, (HCPI 1026/2004, Date of Judgment: 29
K March 2007), in the 1st accident, the plaintiff suffered K
from left knee swelling due to joint effusion. There
L L
was no external wound or bruising. The plaintiff could
M not flex his left knee completely because of the M
effusion. Tapping of the effusion from the left knee
N N
was performed with about 20 to 30 cc of clear fluid
O yielded. The plaintiff could flex his left knee better O
after the tapping. In the 2nd accident, the plaintiff
P P
suffered from tenderness and decrease in the range of
Q movement of his left shoulder. There were tenderness Q
and swelling over both knees without loss of range of
R R
movement. His left shoulder and both knees showed
S no abnormality under X-rays. MRI examination S
showed mild left knee effusion, a small medial
T T
meniscus tear and swollen anterior cruciate ligament in
U U
V V
- 29 -
A A
B B
his left knee joint. In his judgment of March 2007,
C Master KH Hui awarded $180,000. C
D D
(b) In Chung Wai Hung v Chung Wai Ming [2009] 4
E HKLRD G5, the plaintiff, a general worker suffered a E
cut injury to his left knee and on examination it was
F F
found he had sustained a deep wound over the left
G anterior knee, deep to the proximal tibia with a minor G
crack over the lateral cortex, contamination of the
H H
wound, and a tear of the patella tendon over the left
I anterior knee. He was hospitalized for nine days during I
which he underwent operative exploration, removal of
J J
the debris, debridement, and repair of the tendon. He
K was a protective knee brace for 6 weeks after surgery. K
At trial he still complained of mild muscle wasting,
L L
walking with a slight limp, persistent pain in the left
M knee and pain with straightening his left leg, running, M
squatting and on stairs. In July 2008, HHJ David Lok
N N
awarded $180,000.
O O
54. I take the view that Madam Cheung’s injury is relatively less
P P
serious than the injuries suffered by the plaintiffs in the aforesaid cases.
Q However, I have to take inflation into account. I come to the conclusion Q
that the appropriate award under this head should be HK$180,000.
R R
S Pre-trial loss of earnings S
T T
55. IDT agrees that at the time of Accident, Madam Cheung was
U U
V V
- 30 -
A A
B B
earning HK$7,188.10 plus MPF per month.
C C
56. I have already found that the appropriate sick leave period
D D
should be 3 months.
E E
57. Both Dr Ko and Dr Tsoi agree that Madam Cheung should be
F F
able to resume her work as a cleaning worker.
G G
58. Accordingly, the appropriate award under this head should be
H H
HK$7,188.10 x 1.05 x 3 months = HK$22,642.50.
I I
J J
K Post-trial loss of earnings K
L L
59. The medical evidence is clear – Madam Cheung can resume
M her work as a cleaning worker. M
N N
60. I refuse to make any award under this head.
O O
Loss of earning capacity
P P
Q 61. It is true that Madam Cheung suffers from some permanent Q
whole person impairment as a result of the Accident. However, in order to
R R
get an award under this head, Madam Cheung has to adduce reliable
S evidence to show how far her earning capacity as a cleaning worker would S
be adversely affected by the impairment. See Chan Wai Tong & Another v
T T
Li Ping Sum [1985] HKLR 176 at 183D, and Cai Guoping v Yim Hok Wing
U U
V V
- 31 -
A A
B B
and Another (CACV 96/2015, Date of Judgment: 9 September 2015) at
C §62. C
D D
62. There is no reliable evidence enabling me to make an award
E under this head. E
Future medical expenses
F F
G 63. Madam Cheung eventually does not make any claim under G
this head.
H H
I Special Damages I
J J
64. Madam Cheung’s claim under this head is divided into 3
K categories – hospitalization, medical follow-ups, and bonesetter treatments. K
The total of the expenses is HK$177,571.10.
L L
M 65. IDT objects to this claim on the ground that there is no M
evidence of efficacy of the bonesetter treatment. Further, Madam Cheung
N N
saw doctors for a long time because of her persistent complaints against all
O the medical opinions and her own admission of improvement to the O
physiotherapist. IDT says that Madam Cheung should only be entitled to
P P
have HK$5,000.00 under this head.
Q Q
66. Under the 1st category, there are 2 items: (a) expenses in
R R
relation to the hospitalization in Hong Kong Baptist Hospital on 20
S December 2010, the total of which is HK$6,525.00; and (b) expenses in S
relation to the hospitalization in Princess Margaret Hospital from 17
T T
September 2014 to 20 September 2014, the total of which is HK$450.00.
U U
V V
- 32 -
A A
B B
C (a) I would allow the first item. The hospitalization in C
December 2010 is relatively close to the time of the
D D
Accident. The appropriate sick leave period is 3
E months, and 20 December 2010 is within the 3-month E
period. It is reasonable that Madam Cheung would
F F
need medical care at this point of time.
G G
(b) I disallow the second item. In the 1st Joint Report
H H
concerning the medical examination on 30 April 2013,
I Dr Ko and Dr Tsoi jointly express an opinion that I
Madam Cheung’s condition should have reached
J J
maximal medical improvement and static condition.
K Hence, the hospitalization in Princess Margaret K
Hospital from 17 September 2014 to 20 September
L L
2014 should not be related to the Accident.
M M
67. The 2nd category is the medical expenses from 9 November
N N
2011 to 6 October 2014, the total of these expenses is HK$58,857.00.
O O
(a) Based upon the 1st Joint Report, Madam Cheung has
P P
already achieved maximal medical improvement by 30
Q April 2013. I disallow all the medical expenses after 30 Q
April 2013.
R R
S (b) However, Madam Cheung should have sick leave for 3 S
months. She would need to consult doctors from time
T T
to time during the 3-month sick leave period. Further,
U U
V V
- 33 -
A A
B B
after the 3-month periods, she would still need some
C medical follow-ups in order to have a full recovery. C
D D
(c) Madam Cheung has exaggerated her injuries. I agree
E with Mr Sakhrani that she attended medical E
consultations more than necessary.
F F
G (d) Being all these in mind, I would allow HK$25,000 G
under this category.
H H
I 68. The 3rd category is the expenses in relation to bonesetter I
treatments, the total of which is HK$117,739.00.
J J
(a) I accept that there is no evidence proving the efficacy
K of those treatments. K
L L
(b) I note that in respect of expenses on nourishing food,
M even in the absence of evidence proving the M
advisability or suitability of the food, the court may still
N N
allow a modest sum. See Yu Ki v Chin Kit Lam [1981]
O HKLR 419 and King Light Industrial Ltd v Lo Wai O
Keung [1994] 3 HKC 54.
P P
Q (c) People in Hong Kong suffering from knee injuries Q
would often consult Chinese bonesetters.
R R
S (d) Bearing all these in mind, I am prepared to allow S
HK$2,000.00 under the 3rd category.
T T
U U
V V
- 34 -
A A
B B
69. Accordingly, the award under this head would be
C HK$6,525.00 + HK$25,000.00 + HK$2,000.00 = HK$33,525.00. C
D D
Findings on quantum
E E
70. My findings on quantum are as follows:-
F F
G HK$ G
(a) PSLA $180,000.00
H H
(b) Pre-trial Loss of Earnings $22,642.50
I (c) Post-trial Loss of Earnings Nil I
(d) Loss of Earning Capacity Nil
J J
(e) Future Medical Expenses Nil
K K
(f) Special Damages $33,525.00
L __________ L
Sub-total $236,167.50
M M
Less: Employee’s Compensation
N N
Received $218,468.60
__________
O Total $17,698.90 O
P P
71. Had I found in favour of Madam Cheung on liability, I would
Q have had awarded the aforesaid sums plus interest to Madam Cheung. Q
R R
CONCLUSION
S S
72. For the reasons above, I dismiss Madam Cheung’s claim.
T T
U U
V V
- 35 -
A A
B B
73. I make the following costs order nisi:-
C C
(a) Costs of this action be paid by Madam Cheung to IDT
D D
(including all costs reserved, if any) with a certificate
E for counsel, to be taxed if not agreed; E
F F
(b) Madam Cheung’s own costs be taxed in accordance
G with the Legal Aid Regulations. G
H H
I I
74. I thank both counsel for the helpful assistance rendered to this
J J
court.
K K
L L
( Liu Man Kin )
Deputy District Judge
M M
N N
Mr Albert Yau, instructed by B Mak & Co, assigned by the Director of
Legal Aid, for the plaintiff
O O
Mr Ashok Sakhrani, instructed by Winnie Leung & Co, for the defendant
P P
Q Q
R R
S S
T T
U U
V V