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Lam Siu Ping v The Secretary For Justice For And On Behalf Of Leisure And Cultural Services Department

Judgment Cited authorities 26 Cited in Precedent Map Related
Vincent
Judgment Date19 October 2011
Year2011
Judgement NumberHCPI345/2010
Subject MatterPersonal Injuries Action
CourtHigh Court (Hong Kong)
HCPI345/2010 LAM SIU PING v. THE SECRETARY FOR JUSTICE for and on behalf of LEISURE AND CULTURAL SERVICES DEPARTMENT

HCPI 345/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 345 OF 2010

_________________________

BETWEEN

LAM SIU PING Plaintiff
and
THE SECRETARY FOR JUSTICE
for and on behalf of LEISURE AND CULTURAL SERVICES DEPARTMENT		 Defendant
_________________________

Coram : Before Master Marlene Ng in Chambers (open to the public)

Dates of Hearing : 28 September 2011

Date of Handing Down Decision : 19 October 2011

______________

D E C I S I O N

______________

I. INTRODUCTION

1. The Plaintiff, a civil servant employed by the Leisure and Cultural Services Department (“LCSD”), claims to have suffered personal injuries as a result of two accidents in his course of his work and employment on 16 April 2005 and 5 August 2008 respectively (“1st and 2nd Accidents”).

2. On 9 July 2010, the Plaintiff commenced the present action against the Defendant (on behalf of the LCSD) to claim damages for personal injuries and other loss and damages suffered as a result of the 1st and 2nd Accidents, which he avers were caused by the Defendant’s negligence, breach of common duty of care, breach of statutory duties and/or breach of implied terms of the contract of employment.

3. In his Statement of Claim filed on 13 December 2010, the Plaintiff claims:

(a) he was assigned to work at a recreation ground in Kwun Tong (“Recreation Ground”);

(b) on 16 April 2005, he was required and/or instructed by his supervisor to cut stripe bamboos planted at the Recreation Ground (some of which were grown to a height of about 30ft) down to about 7ft (“1st Task”);

(c) whilst he was using an electric chain saw (“1st Saw”) to cut the stripe bamboos, a strong wind caused a few of them to swing down suddenly and trap the 1st Saw which was still switched on, thereby twisting his right upper limb and shoulder (ie the 1st Accident);

(d) as a result, he sprained his right shoulder and wrist;

(e) he was unaware of the seriousness of the injury, and continued to work until the end of the day despite pain in his right shoulder and wrist;

(f) he did not have to work on 17 April 2005 (Sunday);

(g) he applied medicated liquor to his right shoulder, but the pain got worse, so on 18 April 2005 he sought treatment at the accident and emergency department (“AED”) of United Christian Hospital (“UCH”);

(h) although he was granted sick leave from 18 April 2005 to 27 July 2007, he resumed work on 15 April 2007 and submitted to his superior a certificate by UCH recommending light duties;

(i) but he was assigned and/or instructed to carry out heavy demand duties as before;

(j) on 1 September 2007, he was assigned to work at Yuet Wah Street Playground (“Playground”);

(k) on 5 August 2008, he was required and/or assigned by his superior to use an electric chain saw (“2nd Saw”) to cut three withered trees planted at the Playground;

(l) whilst he was pulling the front hand guard of the 2nd Saw to release the chain break, it suddenly rebounded forward with great force and caused injury to his right middle finger (ie the 2nd Accident).

4. In respect of the 1st Accident, the Plaintiff further avers that the Defendant failed to provide him “with adequate preparation for his work, and/or safe equipment, and/or a safe place, and/or a safe system of work, and/or to ensure that a safe system of work was implemented and/or adhered to at the material time, thus exposing [him] to an unnecessary risk of damage and/or injury”. He also alleges that the Defendant failed to (a) supervise or organise his work adequately or at all for the 1st Task to be carried out safely, (b) assess the risk of the 1st Task thereby exposing him to unnecessary risk of injury, (c) give him proper/sufficient instructions or at all for carrying out the 1st Task using the 1st Saw, (d) warn him of the dangers associated with the 1st Task adequately/properly/reasonably or at all, and (d) provide any staff/ co-workers/manpower to assist him in the 1st Task.

5. By the Statement of Damages also filed on 13 December 2010, the Plaintiff claims damages quantified at HK$1,499,732.63 with interest thereon to be assessed. Particulars of some heads of damages claimed in respect of the 1st Accident are as follows:

(a) HK$600,000.00 for pain, suffering and loss of amenities due to incapacity (including persistent residual pain and reduced mobility) as a result of the 1st and 2nd Accidents;

(b) HK$237,600.00 (ie HK$13,000.00 x 24 months x 1.05) for pre-trial loss of earnings and MPF benefits for the 1st Accident from 18 April 2005 to 14 April 2007;

(c) HK$120,000 for reduction/limitation of chance for promotion to a higher rank and disadvantage in the labour market should he lose his job as a result of the 1st and 2nd Accidents;

(d) HK$14,000.00 and HK$10,000.00 for travelling and tonic food expenses for the 1st and 2nd Accidents.

The Plaintiff reserves the right to claim for loss of future earnings and MPF benefits (if any) and future medical expenses (if any) in the Revised Statement of Damages.

II. DEFENDANT’S SUMMONS

6. On 7 April 2011, the Defendant applied by summons (“D’s Summons”) to strike out parts of the Indorsement of Claim, the Statement of Claim and the Statement of Damages that relate to claims for damages and other reliefs in respect of personal injuries arising out of or in connection with the 1st Accident (“1st Accident Claim”) (ie paragraphs 5-6 of the Statement of Claim, paragraphs 2(a)-(i) of the Statement of Damages as well as parts of the Indorsement of Claim, paragraphs 1, 3, 11 and 13 of the Statement of Claim and paragraphs 1, 3-4, 6-8 and 10 of the Statement of Damages insofar as they relate to the 1st Accident Claim, collectively “Impugned Pleadings”) and to dismiss the 1st Accident Claim on the basis that:

(a) the 1st Accident Claim was time-barred under section 27 of the Limitation Ordinance Cap.347 (“Ordinance”) at the commencement of the present action;

(b) the Impugned Pleadings (i) disclose no reasonable cause of action, (ii) are frivolous and vexatious, (iii) may prejudice, embarrass or delay the fair trial of the action, and (iv) are otherwise an abuse of the process of the court under Order 18 rule 19 of the Rules of the High Court (“RHC”).

7. Unless otherwise stated, references to “sections” in this Decision are references to sections in the Ordinance.

III. PLAINTIFF’S SUMMONS

8. On 26 April 2011, the Plaintiff applied by summons for leave to disapply section 27 in respect of the 1st Accident Claim pursuant to section 30 (“P’s Summons”).

IV. AFFIRMATION EVIDENCE

9. On 11 June and 2 August 2011 respectively, the Plaintiff filed his two affirmations in support of P’s Summons and to oppose D’s Summons. On 7 April and 8 July 2011 respectively, the Defendant filed two affirmations of Chan Pak Fai (Manager (Parks and Playgrounds) Kwun Tong I of the LCSD, “Mr Chan”) in support of D’s Summons and to oppose P’s Summons. Unless otherwise stated, the evidence summarised below is substantially drawn from the Plaintiff’s affirmations.

(a) Plaintiff’s employment and work

10. According to the Plaintiff, he joined the LCSD on 31 October 1979 as “Workman II” and was later promoted as “Workman I”. He was further promoted as Technician (gardening team) in 1989 and was assigned to work at the Recreation Ground in 1996. His duties included planting/pruning flowers, mowing lawns, cutting tree branches, carrying out insect control and other maintenance gardening works.

(b) 1st Accident and its aftermath

11. In his affirmations, the Plaintiff described the 1st Accident and its aftermath as set out in paragraphs 3(b)-(h) above. When he attended UCH’s AED on 18 April 2005, he reported an episode of injury on duty “while cutting trees”. There was tenderness over the right shoulder with full range of movement and over 1st dorsal compartment with full thumb movement. There was no fracture, and he was discharged with analgesics.

(c) Medical treatment

12. Due to persistent right shoulder, elbow and wrist pain, the Plaintiff sought treatment at the Kwun Tong General Outpatient Clinic (“KT Clinic”) on 21 and 26 April and 3 May 2005. He was prescribed analgesics. The Plaintiff claims his right shoulder/wrist pain became serious and persistent, so UCH’s AED referred him for orthopaedic consultation. The relevant consultation summaries refer to inter alia “[injury on duty] on 16/4/05 gardener Right shoulder injury, by metal object See [orthopaedics and traumatology] in 6/5/05 mainly on shoulder and wrist” and “[injury on duty] 16/4/05 [right] shoulder sprain and [right] elbow pain and [right] wrist pain after sprain injury no contusion or fall no other limb sprain”.

13. On 6 May 2005, the Plaintiff attended UCH’s orthopaedic outpatient clinic. The medical report of UCH’s department of orthopaedics and traumatology (“DOT”) dated 4 January 2011 notes that the Plaintiff suffered sprained right shoulder/wrist with tenderness over right wrist radial side and decreased sensation over right thumb.

14. The Plaintiff attended seven further orthopaedic follow up between 13 May and 22 August 2005. His right wrist condition was compatible with de Quervain’s disease. At first, his right wrist pain was static and severely “[affected] [activities of daily living], eg twisting towel”, but there was some decrease after steroid injection. As there was not much relief, he asked for a wrist splint, and right wrist pain decreased on splintage. The Plaintiff reported his right wrist pain “subsided 80%” by August 2005.

15. The Plaintiff still had persistent right shoulder pain for which he was referred for physiotherapy. It was only a little better with...

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