LIMBU DHARAMARAJ v. ISS ADAMS SECUFORCE LTD AND ANOTHER

bjbj DCPI 1568/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO. 1568 OF 2011 --------------------

BETWEEN

LIMBU DHARAMARAJ Plaintiff and

ISS ADAMS SECUFORCE LIMITED 1st Defendant

VIVA OPTICAL DISC MANUFACTURING LIMITED 2nd Defendant (Discontinued) -------------------- Coram : Deputy District Judge Tracy Chan in Court Dates of hearing : 15-17 October 2012 & 19 November 2012 Date of handing down Judgment : 19 December 2012

JUDGMENT Background The 1st Defendant carries on the business of security and guarding. The 2nd Defendant is the occupier of the premises relevant to these proceedings. The Plaintiff was the employee of the 1st Defendant at the time of an accident which took place on 21 November 2008 at 5:40pm ( the Accident ). The Plaintiff said that due to the Accident he had sustained injuries. He had claimed compensation under Employees Compensation Ordinance and had accepted a sanction payment for an amount of $50,000 taking into consideration of various periodical payments made prior thereto. He now claims against the 1st Defendant for its being negligent and thus causing him injuries. The 1st Defendant defended the claim saying that there was no negligence on the part of the 1st Defendant and if there were any, the Plaintiff s own negligence had contributed to cause the Accident. It was further said that the Plaintiff had not been truthful in stating the cause of the incident and had therefore failed to make out his claim. Leave had been granted to the Plaintiff to discontinue the claim against the 2nd Defendant on 2 November 2010. The present hearing was against the 1st Defendant only. The Plaintiff s Case It is not disputed that at the time of the Accident the Plaintiff was assigned by the 1st Defendant to work at the premises of the 2nd Defendant ( the Premises ) as a security guard

guarding the main entrance. He was not a regular guard there but only served as a relief. One of his duties at the Premises was to operate a metal gate at the entrance ( the Main Gate ), basically to open and to close as situation so required. Immediately prior to the time of the Accident, the Plaintiff opened the Main Gate to allow a motor cycle to leave the Premises and after that he was to close the Main Gate. As he was trying to pull the Main Gate to close, he said that it got stuck and when he applied extra force to pull, it suddenly slid out, ran over his right foot and trapped it underneath. As a result he lost balance and fell on his right side causing the right side of his body to land onto the concrete floor and he was seriously injured. The Plaintiff therefore sustained injuries to his right ankle, right shoulder and right side of his back. Whether accident did occur as claimed by the Plaintiff Mr Gidwani for the 1st Defendant said that as shown by the CCTV recording, the Accident clearly did not happen in the way as alleged by the Plaintiff. Mr Gidwani highlighted the following parts for my attention: The Main Gate did not get stuck when the Plaintiff was pulling it to close; There was no incident that Main Gate suddenly slid out and ran over the Plaintiff s right foot; There was no incident that the Plaintiff s right foot was trapped underneath the Main Gate; The

Plaintiff did not fall on his right side of the body, if he did fall, which was denied, he fell on his left side. Mr Gidwani submitted that in those circumstances, the court should not find the 1st Defendant liable on a set of facts different from what had been alleged by the Plaintiff. It was further submitted that the Plaintiff had faked the fall because one could see that the Plaintiff fell before the Main Gate came into contact with the Plaintiff. The Plaintiff did not agree to the above contentions. He said that the Main Gate did get stuck, but it was only outside the scope of the camera so the CCTV recording did not show this part. Before I go on, it would be helpful to know the particulars of the Main Gate. According to the 1st Defendant the size of it was about 20 ft in length and 8 ft in height. It was meant to fence off the whole width of the entrance to the Premises when it was closed. The Main Gate with its dimension and weight was supported by some metal frameworks built near its bottom on the side facing the Premises, which the parties had been referring them to be the horizontal member. The Main Gate was on wheels to run on a pair of rails which were about 2 feet apart from each another. Wheels were built both underneath the Main Gate itself and the horizontal member. The Main Gate would have to be operated manually by either being pulled or pushed to move on the

rail towards the direction as intended by the one operating it, either to open or to close. It was common ground that one of the major duties for the security guard taking that position at the Premises was to operate the Main Gate as necessary to allow vehicles to ingress or egress. It was not a very complicated task. My Finding I have the benefit of watching the CCTV recording, clip no. 6 is relevant. From the CCTV recording it was obvious that there was no incident of the Plaintiff s right foot being trapped underneath the Main Gate. It was also obvious that the Plaintiff fell on his left instead of on his right. It could also be seen that the Main Gate did not get stuck. I do not agree with the Plaintiff that this part was not caught by the camera of the CCTV, I could see from the CCTV recording that at the material time, he opened the Main Gate to allow a motor cycle to leave the Premises but he did not open the Main Gate very wide. One could still see part of him even he went outside of the scope of the CCTV camera. It could be seen that he appeared again very soon as he was walking back pulling the Main Gate to close. This happened almost in no time. I however do not agree with the 1st Defendant that it showed the Plaintiff losing balance before his body came into contact with the Main Gate. In fact from the CCTV recording, the Plaintiff was walking between the pair of

rails pulling the Main Gate. He was walking slightly sideways so that to make one step ahead, he would have to move his right leg across his left, then his left leg would step forward to gain support, and then he would move his right leg across his left again, he repeated that about 6-7 times as he advanced by about 7 steps. On his last step before he fell, he was about to lift his right foot across his left foot again, his right foot was however slightly too slow and the Main Gate which was still moving came into contact with his right ankle. He then lost balance and fell. He reached out his left hand towards the ground intending to get some support and his left thigh and left side of his buttocks landed on the ground. He let go his grip with his right hand on the Main Gate at the time he fell. I agree that the Plaintiff was not knocked off by the Main Gate with force, I however do not agree that the fall came before any contact with the Main Gate. I find that the Plaintiff fell because his right ankle was hit by the Main Gate and his left foot was not in a good position to give him support to gain balance. So although there were inaccuracies or even exaggerations on the Plaintiff s allegation on how he fell, I find that he fell at the time he was closing the Main Gate as his right foot was hit by it. Was the 1st Defendant Negligent Particulars of negligence were pleaded in

the Statement of Claim. There are altogether 10 items of them, from failing to provide a safe working system to failing to give adequate warning or warning signs. The 1st Defendant had called two witnesses to give evidence. One was Mr Gurung the guard in charge at the Premises, the other was Mr Thappa the training officer. Much had been relied on by the 1st Defendant that instructions had been given in a Post Standing Order issued in October 2008 to the Plaintiff when he was assigned to hold the guard post in the Premises. In page 5 instructions in relation to the Main Gate is this: Ensure the gate is always closed while not on operation. As the gate is to be handled manually, great care must be taken regarding the personal safety. If the gate cannot be handled smoothly or any malfunction is observed, all security guards must report the matter immediately to the Management. When the two witnesses saw the CCTV and the manner in which the Plaintiff pulled the Main Gate to close, they were both of the view that the Plaintiff should not have positioned himself right in front of the Main Gate and moved on the same track with it as there was a risk that he would be hit by the Main Gate. They both said that he should have walked by the side of the Main Gate when he pulled it to close to avoid the risk. When asked whether the Plaintiff was informed of this before hand, both replied in

the negative. Mr Thappa however said that the security guards had been instructed not to walk backward when pulling the Main Gate to close. I am of the view that the 1st Defendant could not exonerate itself by relying on the Post Standing Order. I am of the view that with a Main Gate of this size, the guards including the Plaintiff should have been given specific instructions as to where they should position themselves when operating on the Main Gate. Further, there was actually no handle on the Main Gate for the security guards to hold on to when pushing and pulling. The Plaintiff was holding on to one of the metal bars of the horizontal members which seemed to be a convenient part to hold on to when operating the Main Gate. The horizontal members were built on the inner side of the Main Gate and were extending by about 2 feet at the bottom. This had made it difficult for the guard to walk along the inner side the Main Gate to push it to close. So unless the guard went out of the Premises and walked alongside the Main Gate on the outer side, the option left would be for him to walk immediately in front of the Main Gate between the two rails. This position was said to be risky by Mr Garrung and Mr Thappa of the 1st Defendant. I am of the view that had the 1st Defendant carried out thorough risk assessment and had given specific instructions to the guards as to how to position

themselves when operating the Main Gate especially when pulling it to close, the Plaintiff would not have been injured. From the above, I am of the view that the Plaintiff has proved that the 1st Defendant had failed to carry out risk assessment for the potential hazards that would be associated with the opening and closing of the Main Gate. I also find that the 1st Defendant had failed to provide adequate training to the Plaintiff. I am of the view that had the Plaintiff not positioned himself immediately in front of the Main Gate and walked sideways in cross steps, the incident would not have happened. I find that the 1st Defendant was negligent and should be liable for the injuries suffered by the Plaintiff. Contributory Negligence on the part of Plaintiff The 1st Defendant relied on a CCTV recording to support its contention that the Accident was partly caused by the Plaintiff if not wholly. It was emphasized by Mr Gidwani that to open and close the Main Gate was a very simple task and the Plaintiff should not have suffered injuries had he been paying sufficient attention to what he was doing. I have the benefit of viewing the recording. I cannot agree with Mr Gidwani s submission that the Plaintiff was not paying sufficient attention. From what I can see in the CCTV recording, the Plaintiff was not otherwise occupied when he was pulling the Main Gate to close. He was not

talking to other people or speaking on the phone. He was not distracted by anything that happened in the course of his pulling the Main Gate to close. One might however criticize him for not exercising good discretion when he positioned himself immediately in front of the Main Gate when pulling it and thus had imposed the risk on himself. The Plaintiff had been asked whether he could stand by the side of the Main Gate to push it to close instead of standing in front of it. According to the Plaintiff one could not stand by the side of the Main Gate and push it to close. But this is not true. In fact one could stand on the side of the Main Gate without the horizontal members and push it to close. It would have been possible if one walked along the outer-side of the Main Gate when pushing or pulling it to close. I find that as an operator of the Main Gate, the Plaintiff should also have assessed the situation to see whether it would be safe to walk immediately in front of the Main Gate when pulling it to close. I find the Plaintiff also negligent. I find that he is to be responsible for 20% of the cause of the Accident. Quantum It would be helpful if I make my finding on the injuries before I start with assessment on quantum. Complaint of the Plaintiff The Plaintiff said he had suffered injuries to his lower right limb, right shoulder and lower back. He was sent to Pok Oi Hospital

by an ambulance. According to Dr Chan of Tuen Mun Hospital, he saw the Plaintiff on 26 November 2008 in the AED. The Plaintiff s chief complaint was right shoulder pain. He also complained of low back pain and right ankle pain. He was treated and given some oral analgesic and a painkiller injection. He was discharged with 5 days sick leave. Follow-up treatments and physiotherapy treatments were carried out in Tuen Mun Hospital. His follow-up treatments were later taken up by clinics. An MRI scan was carried out on 8 April 2009. He was granted sick leave for about 1 year from 21 November 2008 to 21 December 2009. On 23 November 2009, the Plaintiff was examined by Dr. Wong Chin Hong and Dr. Lam Kwong Chin for the purpose of these proceedings. It was said that he was walking in a limping gait and still complained of persistent low back pain and right thigh pain, such pain had increased with various modes of strain which had got worse by 20-30% despite treatment. He also complained that there was tenderness in his right ankle. He agreed that there was no problem with the shoulder. After review of medical reports and examination on the Plaintiff the two doctors came to the same conclusion as follows: Right shoulder: the injury in 2008 should be a shoulder sprain with soft tissue injury and had recovered well (page 218). Spine: They did not find any neurological deficit and no

lumbosacral nerve root impingement al signs in a genuine spinal root involvement (page 220). Right ankle: no external deformity or swelling was found on the right ankle; there was no detectable collateral laxity and the ankle movement was satisfactory; no significant structural damage was found. No further institutional treatment would be required as the Plaintiff had reached maximal improvement in the injuries; According to the joint medical report, No permanent disability caused by the right shoulder sprain; the impairment caused by the back condition is 1 to 2% of whole person and 0.5-1% impairment caused by the condition in the right ankle, the combined impairment is 1.5% to 3%

PSLA According to the Plaintiff, at the time of trial, he still had persistent pain on right ankle and right back. He could not walk without a stick for over 15 minutes. He found it difficult to walk on stairs. Due to his back pain, he had to wear a broad belt to help him. The Plaintiff claims $200,000 under this head. In his Revised Statement of Damages, he complained that he could no longer play volley ball or to enjoy other sports; and he was unable to sleep well due to persistent pain over his right ankle and lower back. He did not mention his not being able to enjoy sports in his witness statement nor did he mention this in court. In light of the medical evidence set out in the above, I am satisfied that the Plaintiff had suffered soft tissue injury to his right shoulder, back and ankle at the time of the accident. I however reject the Plaintiff s saying that there was still persistent pain in the lower back and ankle to the extent as he had alleged. I accept the findings in the joint medical report and I accept the opinion of Dr Wong and Dr Lau that the subject injury would have minimal adverse effect on his activities of daily living (page 222). After studying the authorities which Mr Gidwani has helpfully referred me to, I am of the view that the situation of the Plaintiff is no more serious than that of the Plaintiff in Lau Chu Wing and Law Wing Shing & Others DCPI

1839/2007. In reaching his conclusion that $120,000 was an appropriate award under this head, Au J accepted that the Plaintiff had residual pain in the neck and back which occasionally affects his daily activities such as washing activity and prolonged sitting; and intermittent dizziness. He rejected his complaint of general weakness over his body and inability to enjoy sports including basketball game. I am of the view that an award of like amount, ie, $120,000, is appropriate quantum in the present proceedings under this head. Loss of income Pre-trial The Plaintiff was not working at the time of the trial. He was granted sick leave for about 13 months since the Accident (21 November 2008 to 21 December 2009 inclusive). Mr Gidwani submitted that the granting of the sick leave did not mean that the Plaintiff should be entitled to loss of earnings for that period. Dr. Lam was of the opinion that sick leave up to 6 months should be adequate in the situation of the Plaintiff and Dr Wong said that it was reasonable to grant leave from work while the patient was undergoing treatment, he agreed that that the Plaintiff should be encouraged to return to work force as soon as the work environment and his physical conditions allow him to do so. I notice that the Dr Lam did not challenge the opinion of Dr Wong in this regard and I am of the view that Dr Lam s saying is ambiguous and could

not assist the court. However in the circumstances that the Plaintiff was actually granted sick leave by qualified doctors who had examined him before certifying sick leave, and that Dr Wong s opinion was on a review of medical findings before him and he did not challenge the validity of the sick leave already granted, I accept that those sick leave already granted should stand as the basis in assessing the pre-trial loss of earnings. I however do not find any reasons for the Plaintiff s not working since expiry of sick leave on 21 December 2009 until today. If he had made some attempts to look for a job, I may give credit to the Plaintiff for this. His saying was that he would go back to work when his physical condition allowed him to do so but he was never ready before trial and therefore during the time he had never made any attempt to find a job. In other word, he was not ready so far. I do not accept his such saying, that was not what the experts had said in the joint report. Even his own expert did not explicitly say that he was not ready to go back to work and that was November 2009. I am of the view that the pre-trial loss of earnings should be 13 months. Future loss of Earnings The Plaintiff is now 42. It has been set out in the Revised Statement of Damages that he would work until he attains 65 yeas of age and thus a multiplier of 14.9 is claimed on his behalf. It is

also said that on the basis that he could resume work as a car-park attendant with an approximate salary of $6,000 per month, the future loss would be $737,625 if no promotion is taken into account. In reliance on the joint medical reports, Mr Gidwani asked me to reject the claim by the Plaintiff. He submitted that the doctors were of the opinion that there had been exaggerations on the symptoms and that the Plaintiff had plainly adduced no convincing evidence to explain why he did not or could not go back to same job since the expiry of his sick leave on 21 December 2009. He pointed out that what the Plaintiff had said in the witness box was that he did not have the confidence to go back to work. I accept Mr Gidwani s submission that that t dwani that the claim under this head should not be allowed. Loss of earning capacity Mr Gidwani submitted that no claim under this head should be allowed. The medical findings of the two doctors in this regard was that the Plaintiff should be able to return to work as a security guard with Dr Wong qualifying his opinion by saying that the Plaintiff would need to modify his job to reduce heavy exertion and lifting and he might need to take short breaks after walking or standing for 30 minutes. (page 222) In my judgment I would allow a sum equivalent to 3 months income for him as it may take him a little longer time to find a job in the

labour market. Special Damages The 1st Defendant complained that there were no invoices to support the claim under this head. It was however submitted by Mr. Gidwani that any award to be made under this head should not exceed $4,875 as particularized by the Plaintiff in a table listing out all the medical consultations. I am minded to allow the medical expenses in the sum of $4,875. The expenses on nourishing food was not supported by a single shred of evidence and the Plaintiff did not tell me what nourishing food he had consumed, thus there would be no award of compensation under this item. As to travel expenses, again there were no receipts produced. There should not be any difficulties in obtaining invoices if he had taken taxi to and from clinics for treatments and consultations. If he was taking a bus, there would be no receipts. I make an award on the basis that he was taking a bus and I allow $10 dollars for each consultation. There had been 67 consultations. The award for this is thus $670. Conclusion Upon hearing evidence of the plaintiff and viewing relevant reports, and for reasons set out in the above, I came to the conclusion that the grant of sick leave for about 13 months was appropriate, there should not be loss in future earning and finally I allow an amount equivalent to 3 months income for loss of earning capacity. PSLA $120,000 Pre-trial loss of

income $10,362.58x13months x105% $141,449.22 Future loss of earning $0 Loss of earning capacity $10,362.58 x 3 $31,087.74 Special damages Medical expenses $ 4,875 Nourishing food $ 0 Travel expenses $ 670 Sub-total: $298,081.96 Take into account : Contributory negligence of 20% ($ 59,616.39) Awards received under EC claim ($ 50,000.00) Plaintiff had been paid salary ($101,097.36) Total $ 87,368.21 From the above, I find that the 1st Defendant should be liable to the Plaintiff, the damages assessed by me under various heads amount to a total sum of $ 298,081.96. After taking into account 20% contributory negligence; money paid as salary and EC compensation, the 1st Defendant would have to pay the Plaintiff $ 87,368.21 for compensation in these proceedings. Costs Costs normally follow the event. The 1st Defendant shall pay the costs of the Plaintiff, such costs are to be taxed if not agreed. This is an order nisi and shall become absolute unless application is made to vary the same within 14 days. Tracy Chan Deputy District Judge The Plaintiff present and appeared in person Mr Victor Gidwani leading Mr Bosco Cheng instructed by Messrs. Leung & Lau for the 1st Defendant

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