Heung Wing Yan v. Hangway Housing Management Ltd and Others
Read the full judgment text of HCPI 347/2012 on BabelCite. This High Court CFI judgment was delivered on 14 October 2016.
1. This case concerned a slip and fall incident. The 2 nd defendant (“ D2 ”) was the registered owner of Workshop A, 4 th Floor, Manning Industrial Building (“ Building ”), No 116-118 How Ming Street, Kowloon (“ Workshop ”), which was sub-divided into smaller offices rented to different tenants. References to “Ax” below mean such smaller offices shown in the plan annexed hereto (“ Plan ”). D2 employed the 3 rd defendant as cleaner (“ D3 ”) to clean inter alia the Workshop, so D2 was vicariously
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HCPI 347/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 347 OF 2012 _________________________
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________________ J U D G M E N T ________________ I. INTRODUCTION 1.This case concerned a slip and fall incident. The 2nd defendant (“D2”) was the registered owner of Workshop A, 4th Floor, Manning Industrial Building (“Building”), No 116-118 How Ming Street, Kowloon (“Workshop”), which was sub-divided into smaller offices rented to different tenants. References to “Ax” below mean such smaller offices shown in the plan annexed hereto (“Plan”). D2 employed the 3rd defendant as cleaner (“D3”) to clean inter alia the Workshop, so D2 was vicariously liable for D3’s negligence (if any). The 1st defendant (“D1”), a property management company whose boss was Yu Wai Kuen (“Yu”), employed the plaintiff as property officer (“P”) and Ng Kwun Ming as assistant property officer (“Ng”). P worked for D1 in 2006-2008. After she left D1 rented A8 as its office, and at Yu’s request P re-joined D1 in July 2009. Only Yu, P and Ng worked at A8. 2.The lift lobby (“Lift Lobby”) outside the Workshop’s main entrance (“Main Entrance”) was a common part of the Building, but the Corridor (see sub-paragraph (a) below) inside the Workshop were private premises. In my view, D2 was the occupier of the Corridor within the meaning of the Occupiers Liability Ordinance Cap 314, and P was a lawful visitor thereto:
(a) Accident 3.P claimed that about 3:55pm on 8 October 2009 she left A8 to attend a meeting (“Meeting”) at the ground floor carpark (“Carpark”), but she slipped and fell on the wet and slippery Floor caused by wetness D3 left behind after having mopped the Floor (“Accident”), so P sustained injuries. D1, D2 and D3 (collectively, “Ds”) denied liability. There was no dispute P had a slip and fall at the 1st Section, the Floor where she slipped and fell was wet, and there were no “beware of wet floor” warning signs (“Signs”) placed at / near where she slipped and fell. But there was disagreement over where P slipped and fell (outside A7 as P claimed or outside A5 / 19 as D2 / D3 claimed), whether she was alone (as she claimed) or Ng was with her and carried a ladder (as D2 / D3 claimed), and whether D3 was present and gave 2 verbal warnings (as D2 / D3 claimed) or no one was there (as P claimed). (b) Main action 4.P’s case against D1 was essentially for negligence, breach of implied terms of her contract of employment and breach of section 6 of the Occupational Safety and Health Ordinance Cap 509 (“OSHO”). P claimed D1 must have known all along cleaners had been mopping the Floor without any Sign or notice and / or without cordoning off the area being cleaned, so D1 must have been aware that the Corridor’s wet and slippery condition was long-standing, but failed to warn / instruct P about the danger and risk of injury of walking thereon, to provide a safe place / system of work, or to take reasonable care / precautions to ensure P’s reasonable safety. Mr Lin, counsel for P, suggested D1 should have (a) ascertained from D2 the cleaning timetable for the Corridor and taken steps to warn P to beware of wet Floor in connection with such mopping, and (b) liaised with D2 about her cleaning arrangements and urged / required implementation of safety measures, eg to cordon off the Floor area being cleaned and to put up Signs. 5.P alleged D3 failed to give any notice and / or place any Sign to warn of the wet / slippery Floor at the 1st Section where P slipped and fell, and D2 / D3 exposed her to and failed to warn her of the danger or risk of injury of walking thereon which they knew or ought to have known, to properly remove any excess water deposits from the Floor after mopping, or to take all reasonable care / precautions to ensure lawful visitors (including P) would be reasonably safe. 6.D1 claimed P could have taken the Forward Route, but even if the Accident happened as P alleged (which D1 denied), (a) D1 had discharged its duties whether under contract, tort or statute (if any), (b) access to and egress from A8 was in fact safe and any wet / slippery Floor was a temporary condition caused by D3, (c) D2 was vicariously liable for D3’s negligence (if any), and (d) the Accidentwas caused / contributed to by P’s negligence in failing to pay attention to the condition of the Floor or to use a safe alternative route. Further, D2 / D3 claimed D3 had not yet mopped the 1st Section outside A7 and P slipped and fell outside A5 / 19 where D3 had already mopped, the Floor was level and kept clean / tidy, and lighting was sufficient / bright. Even if the Accident occurred as P alleged (which D2 / D3 denied), it was the result of P’s own negligence.[1] (c) Contribution proceedings 7.D1 sought contribution and indemnity against D2 / D3 if P were able to prove her allegations in the main action. D2’s defence was a bare denial. D3 claimed D2 failed to provide Signs for her to place at the Corridor during or after mopping to warn visitors about the condition of the Floor, and if the Accident was caused by D2 / D3 (which D3 denied), it was contributed to by P’s negligence. II. WITNESSES (a) Factual witnesses 8.P, Ng and D3 gave evidence. D2 and Yu were not called even though their witness statements had been served. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[2] Further because an individual is not credible in relation to one issue that does not mean his / her evidence will be rejected in relation to other issues in the case. It is all a matter of assessment and degree. 9.P P was 23 and 29 years old respectively at the time of the Accident and at trial. Despite her relative youth and ordinary academic performance, she had worked as a property officer for a few years before the Accident. She was able to manage such multi-tasked job with minimal supervision, and she struck me as a practical person with an agreeable personality and sense of responsibility. She displayed stoic fortitude towards her pre-existing left foot problem, and her emotions over her post-Accident sufferings had a ring of truth. There was a truthful / reliable core to P’s testimony evidenced by her consistency under searching cross-examination, and she was not dogmatic in denying all challenges thrown at her. That said, I do not accept some aspects of her evidence. I find the lapse of time and her weakened condition after the Accident had unconsciously influenced the strength / vividness of her memory on those matters. 10.Ng Ng frankly agreed his working / personal relationship with P was good. They only had infrequent telephone contacts after they respectively left D1. Ng only learned of the present action when he was asked to provide a witness statement in 2014. Ng was clear as to what he could recall and careful about what he could not. I find his testimony well-reasoned and emotionally detached (Ng no longer worked for D1 or with P), and do not find any moment of unease that P’s / Ng’s prior working relationship or the fact Yu / D1 terminated Ng’s employment adversely affected the reliability of his evidence. 11.D3 D3 worked as part-time cleaner so she could look after her young children. She did cleaning work for other units in the Building, and was referred to work for D2 when the previous cleaner resigned. She was interviewed for the job in / about late September 2009, and started to work for D2 on 2 October 2009. In my view, there was a degree of reconstruction in D3’s evidence which I find unpersuasive. I find the subtle influence of the present litigation had subjected D3’s memory to powerful bias, and for reasons explained below I do not accept her version of events. (b) Medical experts 12.The parties’ orthopaedic experts were Dr Peter Tio (“Dr Tio”) for P and Dr Peter Ko (“Dr Ko”) for Ds (collectively, “Ortho Experts”), and their psychiatric experts were Dr Cheung Hung Kin (“Dr Cheung”) for P and Dr Kieran Singer for Ds (collectively, “Psy Experts”). The Psy Experts’ joint report dated 15 December 2012 (“Psy Report”) was adduced at trial without oral evidence. The Ortho Experts gave oral evidence at trial and produced their joint reports dated 12 July and 8 November 2012 (“Ortho Reports”). 13.I have heard a wealth of orthopaedic medical evidence at trial. For the most part, it was pointed in the same direction, and certainly there was effective unanimity on the primary findings. Yet some medical issues were genuinely controversial. It was recognised that the interplay of chronic condition and acute trauma could raise uncertainties, so it was unsurprising to find disagreement even amongst doctors of the highest repute which the Ortho Experts undoubtedly enjoyed. Where they were in agreement in their findings and / or of one mind over certain aspects of their opinion, I accept their evidence and views. But where they differed over disputed medical issues, critical analysis of their evidence which were at odds with each other must be made in the context of relevant factual findings. 14.I note 3 points. First, both Ortho Experts never practised emergency medicine, but I accept orthopaedists (who must be familiar with trauma injuries) are experienced in reviewing / understanding medical notes of accident and emergency departments (“AEDs”). Secondly, time spent on individual patient consultation by doctors at busy public hospital AEDs cannot be luxurious, and Dr Ko accepted it is the same with general and special outpatient clinics (“GOPC” and “SOPC”). Thirdly, Ds complained Dr Tio gave evidence (but did not state in the Ortho Reports) that P’s posterior tibial tendon (“PTT”) rupture (“Rupture”) probably occurred on / about 15 November 2009. But there was no change to Dr Tio’s stance that injury to P’s left ankle during the Accident caused / contributed to weakening of P’s diseased PTT (against a background of PTT dysfunction (“PTTD”) and pre-existing left foot pain) that led to eventual Rupture. Anyway, Dr Ko also expanded on his opinion when he gave evidence. I prefer to consider the medical evidence as a whole. III. LIABILITY 15.Slip and fall A slip and fall itself would not give rise to a presumption of negligence, and P had to show it was “...... an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault”.[3] 16.Before the Accident I find that in the 3-4 months before the Accident P did not observe any cleaner doing cleaning work at the Corridor. P had not thought about this, but accepted under cross-examination there was probably a cleaner given the state of cleanliness of the Corridor. 17.Ladder I prefer P’s claim that Ng came out of A8 only after she fell down to help her up but returned to A8 when she left for the Lift Lobby, and reject D3’s claim that P / Ng (who carried a tall wooden ladder) left A8 together and after the Accident Ng (who still carried the ladder) accompanied P to the Lift Lobby:
18.Cleaning arrangements / methods D2 supplied cleaning equipment (eg mop) for D3’s use, but did not have any fixed cleaning schedule, so D3 usually cleaned the Workshop in the afternoon to suit her own purpose. D3 was not supplied with any Sign or instructed to warn users to beware of wet floor or to cordon off the wet area until it dried. D3 did not use any bucket of water as it was her practice to wet the mop at the female Lavatory to mop the Entrance Area, 2nd Section and 1st Section before returning to the female Lavatory to rinse / wet the mop for mopping the 3rd Section and 4th Section. 19.P’s case In the afternoon on 8 October 2009, Yu left A8 to attend the Meeting. 2-3 minutes later, P who wore mid-heeled (1” high heel the size of a $1 coin) leather pumps with a strap at the back (“Shoes”) that day also left A8 for the Meeting holding just pen and some paper. P did not spot any cleaner at the 3rd Section. As P turned left at normal pace, she did not see any person / cleaner at the 1st Section. After taking 4-5 steps, P gave a loud shout as she slipped and fell outside A7. At that time, P “未料到原來有清潔員剛巧拖地完畢” which caused the floor to be wet / slippery.[4] 20.Ds’ case D3 claimed she wet-mopped the Floor from the Entrance Area to the 2nd Section and then to the 1st Section up to A5 / 19. D3 faced the direction of A2 when she mopped the Floor of the 1st Section, “因為條走廊好窄，...... [D3]一個地拖已經可以放到去對面咁拖㗎喇，所以[D3]企喺[A19]嗰邊嗰個方向呢，即係一直都係咁拖，打橫打橫咁拖 ......” D3 heard voices behind her, so she turned around and saw P and a man (later known as Ng) carrying a tall wooden ladder leaving A8 and walking abreast towards her. P was talking to Ng but “談話神情憤怒”, so D3 thought P was telling Ng off. 21.D3’s statement evidence stated “...... [D3]剛剛拖完[A5]至[A19]外的走廊位置 ......, [D3]便站到一旁及告訴[P]“小心地濕”” (my emphasis). But D3 gave evidence that as P / Ng descended the Step (where she had not yet mopped) to walk towards her, she turned around to say “小心呀, 地濕, 唔好行過嚟” (as the Floor outside A5 / 19 was still wet), but she did not “站到一旁” “因為 ...... 嗰條走廊[D3]講第一句說話嘅時候要企定，即係望到[P and Ng]喇嘛，...... 話畀[P and Ng]聽「小心地濕」......” When pressed, D3 rationalised by saying she stopped by standing against the wall on the side of A19. 22.D3 continued to mop the Floor towards A8 / 9, and P / Ng continued towards her. When D3 was outside A6 (but not quite reached its door), she was concerned P / Ng might not have heard her, so she turned around, stood to one side with the mop handle stretched out behind her to her right,[5] and looked at P / Ng (who had almost reached A7 / 6), to remind them again “小心地濕”. D3 only said “小心地濕” this time “因為[P / Ng]都要行過去，所以[P]就冇話去執意話唔畀[P / Ng]過囉，因為[P’s]個地拖已經擺咗喺個中間嗰度，...... 因為第二次 ...... [D3]望住[P]講嘅時候，[P / Ng]已經停咗落嚟㗎喇兩個，咁 ...... [D3]個地拖都擺喺[P]即係前面喇，咁[P and Ng]都要行過，所以[D3]要企埋一邊” (my emphasis). When P reached the Floor outside A18 / 19 (where D3 had already mopped), she slipped / fell and shouted “哎吖”. 23.Slip and fall P’s statement evidence described the slip and fall as follows: “沒有提防下突然一跣左腳踝先「拗柴」繼而整個人向後仰跌下, 半躺式坐在地上後手錚著地”. It was P’s evidence-in-chief that it felt slippery underfoot as she stepped forward with her left foot, which was slightly inverted (“扭一扭”, “拗一拗” or “扭少少”), and it slid forward (and the right foot also slid forward a little) to lift into the air[6] whereupon P lost her balance and fell backwards on her buttocks with her 2 elbows hitting the floor and her 2 legs stretched out in front of her “向左邊輕微彎一彎” as her buttocks were twisted slightly to the left. P gave a similar account under cross-examination, but fairly accepted she could not be sure whether her left foot slid forward a little or was slightly inverted first, “...... 即係其實就係踩落去，跟住拗一拗，跌低， ...... 全部動作都冇十秒 ......” P remained consistent under re-examination.[7] 24.P’s slip and fall happened very quickly. I find on balance as she stepped forward with her left foot, the front part of the sole of her Shoe touched down on the wet Floor, so it slid forward a little which caused some instability, so when her heel came down slightly on the lateral side of the Shoe the left foot was inverted slightly causing further instability. Since the Shoes were a pair of sensible shoes with mid-heels, the inversion was slight and more in the nature of “扭一扭”, “拗一拗” or “扭少少” than a full inversion ankle sprain although P in her witness statement coined the phrase “拗柴” as generic description of the mechanism. In my view, the aforesaid motions caused the left foot to slide forward on the wet Floor and the right foot to slide forward a little too, so P lost her balance, her feet lifted off the Floor and she fell backwards on her buttocks with her elbows hitting the Floor.[8] I also find her buttocks were twisted slightly to the left, so her legs that stretched out in front of her were also bent slightly to the left. 25.P’s case after the fall P claimed her low back and left foot (左腳) were painful. She only realised then the Floor was wet (but not very wet), and there were damp patches on her pants at the buttocks area. In the meantime, Ng heard P’s shout and rushed out of A8. Ng also felt the Floor outside was damp (like when it was not yet dry after mopping) but not too slippery (probably due to friction between his sports shoes and the Tiles). He saw P on the Floor near A7 with her legs stretched out in front of her bending slightly left but no one else. Ng also noticed P’s pants were a bit damp and the Floor where she fell was wet. P said she heard a female voice from the 3rd Section (which she ignored) asking her if she was alright. Ng also heard someone ask “are you okay?” which he ignored. Ng helped P to get up. P had to attend the Meeting and limped off to the Lift Lobby, so Ng returned to A8. 26.Ds’ case after the fall D3 claimed Ng put down the ladder, and Ng / D3 asked P “有冇事呀?”, but P ignored D3. “咁[P]就自己企咗喺身，跟住嗰個話冇事，見[P / Ng]行得出去門口，所以[D3]就冇理會到囉 ......” D3 reiterated under cross-examination “...... 跟住[P]冇人扶佢之下[P]就自己起咗身行咗出去玻璃門”. But D3’s statement evidence stated Ng helped P up and P / Ng left together. D3 then made a report to her supervisor. 27.Lift Lobby and lift Yu was still at the Lift Lobby talking to the chairman of the IO. P told Yu “[P]剛曾在公司對出走廊跌倒”. P at first said Yu told her at the Lift Lobby “之前[Yu]都覺得濕濕地嘅，爭啲𨃩親，有人拖地”, but P was later unsure whether Yu actually mentioned “有人拖地” and it seemed Yu told her inside the lift “我都爭啲𨃩低，其實個地都係有啲濕”.[9] This conversation was not in P’s statement evidence, but P claimed she did not appreciate she had to record her private conversation with Yu inside the lift. Thereafter P, Yu and the chairman of the IO went to the Meeting, and P continued to work until 7:00-8:00pm. 28.9 October 2009 When P returned to work the following day, Yu asked her to fill out Form 2, but P did not fill out the part under the heading “致勞工處處長”, D1’s business registration number in section A and also section F. P claimed her colleague told her a cleaner was mopping the Floor outside, so she wrote down in Form 2 “由於門外有清潔工在拖地, 引致地面濕滑而跌倒”. It could be Yu or Ng who told her, but P believed it was “[Yu]話凈係喺出面拖地囉 ......” which in effect was saying “門外有人清潔，咁[P]咪寫「門外有人清潔」囉，......” On the other hand, D3 said she saw Ng at the Workshop, and Ng told her “they” would sue “them”. D3 made a telephone report to her supervisor as she assumed Ng meant D2 / D3 would be sued, but D3 did not understand why “they” would sue as only P fell down. D3 claimed to recall this conversation only when she saw Ng at trial. 29.Adverse inference Since Yu did not give evidence, Mr Lin urged this court to draw the adverse inference that Yu’s evidence would not have supported D1’s contentions.[10] But whether adverse inference is to be drawn depends on the quality of the primary facts on which the inference is based, and the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts, so the judge has to be persuaded it will be appropriate to draw the inference. But even if it is proper to draw such inference, the court still has to evaluate the totality of the evidence and ask what weight should be given to such inference in circumstances where, as here, this court did not have the opportunity to assess Yu’s credibility whilst there were other factual witnesses who gave evidence. As seen below, I find myself unable to place much weight on any adverse inference that might be drawn from omission to call Yu as witness. 30.Findings as to the Accident On balance, I prefer the account by P / Ng who gave consistent evidence as to how the Accident happened despite searching cross-examination, and reject D3’s account. 31.First, I find P and Ng did not leave A8 together. As Yu and P both went to the Meeting, Ng would have remained at A8 to take telephone enquiries, reports and / or complaints from the caretakers, IOs and / or owners of the D1 Buildings, especially when there was no evidence of any urgent property management problem at the Building that required immediate attention. 32.Secondly, P and Ng both said the Floor outside A7 was wet. I note (a) after P fell down she discovered the Floor was wet, (b) Ng took a few steps towards P and felt the wetness (like the Floor had been mopped and not dried as yet), (c) P’s pants had some damp patches after her fall, (c) P’s cleaning practice was to wet / rinse her mop at the female Lavatory after mopping the Entrance Area, 2nd Section and 1st Section up to outside A8, and (d) there was no one else at the 1st Section but P / Ng heard a voice from the 3rd Section asking “are you okay?”. Such evidence suggested D3 had finished mopping the Floor of the Left Route up to outside A8 (so the Floor outside A7 was wet), D3 probably went to the female Lavatory to rinse / wet the mop (so P did not see D3), P gave a shout as she slipped and fell (so Ng came out of A8 to her help), and more likely than not D3 heard that too and came out of the female Lavatory to ask “are you okay?” (so Ng did not see anyone else at the 1st Section). 33.Thirdly, given the width of the 1st Section (4.3ft), it would be uncomfortable for a woman of a large build like P and a man carrying a tall wooden ladder to walk abreast. If (as D3 alleged) D3 was mopping the Floor at the 1st Section ahead of their path, and “...... [D3]一個地拖已經可以放到去對面咁拖㗎喇，...... 打橫打橫咁拖 ......”, P / Ng (even if they were conversing) must have realised D3’s mopping action would block their progress. It did not make sense for P / Ng to ignore the Forward Route and use the Left Route (despite P’s habit in using such route to the Lift Lobby). 34.Fourthly, D3 said she gave 2 verbal warnings to P / Ng. For the 1st verbal warning, her evidence evolved from (a) “...... [D3]便站到一旁及告訴[P]“小心地濕”” to (b) D3 turned around and said to P / Ng “小心呀, 地濕, 唔好行過嚟”. But under (a) above D3 expected P / Ng to walk past her (which explained why she stood to one side and warned them to beware of the wet Floor ahead of them), but under (b) above D3 expected P / Ng to turn away as she told them not to come over. Such discrepancy was not satisfactorily explained. 35.Fifthly, in my view, if D3 expected P / Ng to continue forward, she would not have continued with her mopping when “...... [D3]一個地拖已經可以放到去對面咁拖㗎喇，...... 打橫打橫咁拖 ......” If D3 expected P / Ng not to come over, she would not have turned back to her mopping without first watching to make sure they took the Forward Route or to repeat her warning if they did not. I find D3’s account not credible. 36.Sixthly, D3 claimed P / Ng continued forward and she stepped aside to let them walk past. In my view, P / Ng (carrying a tall wooden ladder) walking abreast could hardly have walked past D3 even if she stepped aside close to the wall, especially when D3 said “...... 個地拖已經擺咗喺個中間嗰度” and when she stepped aside the mop handle was stretched out behind her to her right. 37.Seventhly, P / Ng both said Ng helped P to rise from the floor, but the evidence of D3 (who claimed to be present) wavered uncertainly between Ng helping P to get up and P getting up on her own. 38.Eighthly, Ds suggested P’s description of the Accident in Form 2, ie “由於門外有清潔工在拖地, 引致地面濕滑而跌倒”, was consistent with D3 mopping the Floor at the time when P slipped and fell, and if P had no personal knowledge of such matter, it would have sufficed for her to put down she had a slip and fall due to the wet Floor. This was the first time P filled out a Form 2, which form was intended to be completed by D1 as employer. I am unable to read from P’s description that a cleaner was mopping the Floor outside (presumably in the Corridor) at the very time when P slipped and fell. In my view, such description merely stated the cause of the wetness on the Floor that led to P’s slip and fall, ie the mopping of the Floor by a cleaner, which was consistent with P’s explanation that Yu (but it might be Ng) “......就講「有人喺門口出面拖地囉，咁跟住濕咗咪跌親囉。」咁[P]咪寫番落去囉 ......” I do not see why P should not include hearsay information from Yu / Ng in Form 2 that was meant to be made / submitted by D1 (not P). On balance, I accept either Yu / Ng told P that a cleaner was mopping the Floor outside. 39.Ninthly, I do not believe Ng told D3 on 9 October 2009 “they” would sue “them” or she suddenly remembered this conversation only when she saw Ng when at earlier times she necessarily had to focus on the Accident and its aftermath to prepare her Defence and witness statements. 40.Tenthly, Mr Lim and Mr Wong, counsel for D1 and D2 / D3 respectively, suggested P was unreliable in saying she sprained her left ankle during the Accident and she told the doctors several times of left foot pain when this was not mentioned in Form 2 and / or in the medical records / reports for consultations prior to 16 November 2009. I refer to the analysis below, but suffice to say here such complaint did not detract from P’s veracity. 41.By taking a robust and common sense approach,[11] I find on balance (a) D3 finished mopping the Entrance Area, 2nd Section and 1st Section up to A8 (ie including the Floor outside A7) and went to the female Lavatory to rinse / wet her mop when P left A8 on her own to attend the Meeting, (b) P turned left into the 1st Section and took 4-5 steps at normal pace before she slipped and fell near A7, (c) the Floor at that spot was wet (because it had been just mopped and not yet dried) but P did not notice the wetness because the Tiles were shiny and smooth and reflected the bright lighting, (d) Ng (who was holding some documents and not any ladder) heard P’s shout as she fell down and came out of A8 to help her up, (e) D3 came out of the female Lavatory and asked “are you okay?” but P / Ng ignored her voice, and (f) after Ng helped P up she continued to the Lift Lobby and Ng returned to A8. I also find at the material time D3 was not at the 1st Section and did not give any verbal warning. 42.Causation I have found the Floor was wet where P slipped and fell outside A7. The fact Ng (wearing sports shoes and hence not finding the wet Floor too slippery) had no mishap when he walked over to reach P after her fall did not mean P wearing the Shoes with only part of the soles in contact with the Floor would not. I find the Floor outside A7 / 8 was wet / slippery for P who was wearing leather pumps. Next, it was said the wet Floor did not cause the slip and fall because afterwards P walked on the mopped Left Route without further mishap. But by that time P was alerted to the existence of the wet Floor and she walked with a limping gait to the Lift Lobby. This did not make the wet Floor any less slippery to a person wearing leather pumps and walking at normal pace. I find on balance P slipped and fell because of the wet and slippery Floor. 43.I have found in paragraph 24 above P’s left foot was inverted slightly (“扭一扭”, “拗一拗” or “扭少少”).Mr Lim argued this mechanism that led to P’s slip and fall was due to P’s probable valgus left heel aggravated by the Shoes (which, though sensible, might cause instability for one with valgus heel). In my view, D1 only put P to proof as to how the Accident happened with no positive case as to its cause, so D1 could not run such defence. But even if P had valgus left heel, the eggshell skull rule holds a tortfeasor is still liable for the consequences of his tortious act leading to injury even if the victim is pre-disposed to a particular type of injury due to pre-existing vulnerability.[12] I am unable to see how P wearing sensible shoes ordinarily expected to be worn by clerical workers would eliminate the causal link between the wet / slippery floor and the Accident. Given my findings in the above paragraph, the wet / slippery Floor was a material “but for” cause of the Accident. 44.Liability of D2 / D3 I note (a) the Corridor was the only route between the smaller offices and the Main Entrance / Lavatories, (b) the interaction of the bright lighting and tiled Floor made it difficult to spot any wetness on the Floor surface, (c) during / after mopping there were no Signs placed about the Corridor until the Floor dried, and (d) D3 did not adopt (and D2 did not give instructions for) any other safety measure during or after mopping until the Floor dried, eg putting up direction signs to encourage users to adopt the alternative Forward Route. In allowing visitors (including P) to use the Corridor in such circumstances, D2 / D3 were plainly negligent, and D2 was vicariously liable for D3’s negligence. Further, D2 as occupier of the Corridor owed P (a lawful visitor) a common duty of care to see that she would be reasonably safe for purposes for which she was permitted to be there, and for the above reasons D2 was also in breach of such statutory duty. 45.Liability of D1 Mr Lin submitted D1 had a non-delegable duty to take reasonable care / precautions for P’s safety. D1 knew P / Ng had to leave A8 from time to time to inspect the D1 Buildings, attend meetings and deal with other on-site property management issues, so it was reasonably foreseeable that (a) P would use the Corridor, and (b) a wet Floor would pose potential danger to P because (i) D1 occupied A8 for several months before the Accident, (ii) the cleanliness of the Corridor indicated someone was cleaning it, (iii) D3 mopped the Floor daily during office hours without using any Sign and / or without cordoning off any wet area, and (iv) D1 did not adduce evidence as to any change of cleaning practice after D3 took over the cleaning work, so wet-mopping of the Floor during office hours without any Sign must have been a regular occurrence for quite some time. Mr Lin further suggested D1 could have taken reasonable / inexpensive measures, eg (1) to find out from D2 the cleaning schedule in order to warn its employees to avoid using the Corridor when it was being mopped or when the Floor was still wet, (2) to request D2 to display sufficient Signs and / or to temporarily cordon off relevant section of the Corridor that was being mopped until the Floor was dry, and (3) to request D2 not to mop the Corridor during office hours, and in not taking such steps D1 was negligent in failing to take all reasonable care / precautions to ensure P would be reasonably safe in using the Corridor for access to and egress from A8. 46.It seemed P’s case turned on D1’s alleged awareness of D2’s cleaning system (see paragraph 45(i)-(iv) above) such that he should have taken steps to protect its employees (see paragraph 45(1)-(3) above). Mr Lin submitted this was bolstered by adverse inference drawn against D1 for failing to call Yu as witness. I disagree. First, P did not condescend upon her specific allegations in paragraph 45(1)-(3) above until Mr Lin’s opening submissions. Secondly, whether an adverse inference should be drawn depends on the quality of the primary facts, and I am not convinced it would be appropriate to draw such inference here. 47.D3 started to work for D2 on 2 October 2009 to clean 4 different locations at times that suited her own convenience (and D3 chose to clean the Workshop in the afternoon). There was no evidence as to the cleaning arrangements before 2 October 2009, but even if the same practice was adopted, there was no evidence as to what time would have suited the convenience of the previous cleaner. D1 moved to A8 sometime after P left D1 in 2008 and before she re-joined D1 in 2009, but P never came across any cleaner in the 3-4 months she worked at A8, and no evidence was elicited from Ng (who worked there before P re-joined D1) that he had seen any cleaning work done at the Corridor. There was nothing to suggest to D1 that the Floor was cleaned during office hours so as to pose risk of slip and fall for its employees. Further, there was no evidence as to what method D3’s predecessor used for cleaning the Corridor.[13] I also note D3 was merely told cleaning equipment could be found in the Storeroom, and she was left to devise her own cleaning method. With no particulars as to how / when cleaning was done prior to 2 October 2009, there was no reasonably foreseeable risk of injury that required D1 to take the steps Mr Lim suggested. 48.Mr Lin reminded that Yu told P in the lift that the Corridor was a bit wet and he had almost slipped, and argued that as D1 did not call Yu to contradict P’s evidence adverse inference should be drawn against D1 that Yu in fact said this to P, so D1 was negligent in failing to warn P of the danger of the Floor being wet / slippery or otherwise prevent her from walking across the wet Floor. But P only gave evidence at trial that in the lift “[Yu]喺[P]耳邊細細聲講嘅嘢，「其實我都爭啲𨃩親㗎。」咁” (but P confessed she actually could not remember clearly), and when pressed P admitted she did not know whether Yu was serious about this: “[Yu]話跌親囉，可能[Yu]之前跌親又未定，咁[Yu]話佢爭啲跌親，咁[P]唔知[Yu]...... 可能係講笑”. In my view, even with others present in the lift, there was hardly any need for Yu to surreptitiously whisper to P he too had almost slipped. As P herself recognised Yu might not be serious about what he said, I am not persuaded I can confidently place weight on P’s allegation on such conversation or draw any adverse inference against D1. 49.Mr Lin was constrained to submit even if there was nothing untoward to alert D1, it should still have made enquiries with D2 as to the cleaning arrangements / timetable and then decide what to do upon D2’s answers. I disagree as it was for P to establish breach of duty of care, and there was nothing to show the alleged danger of wet Floor during office hours was reasonably foreseeable such that D1 should have taken the steps as Mr Lin suggested. 50.Section 6 of OSHO imposed a duty on D1 to ensure its employees’ safety and health at work within the limits of reasonable practicability. Mr Lin submitted P’s essential complaint was D’s failure to provide or maintain means of access to and egress from A8 (ie the workplace under D1’s control) that were, so far as reasonably practicable, safe and without any such risk as would constitute breach of statutory duty imposed by the section. Mr Lin suggested it was for D1 to plead and prove it was not so reasonably practicable, so P’s claim for breach of statutory duty must succeed unless she failed to show the means of access to and egress from the workplace was not made or kept safe for her.[14] 51.The majority in Baker v Quantum Clothing Group Limited[15] held that in a claim for damages for negligence and breach of a statutory duty relating to workplace safety, safety is not an unchanging concept as it involves a judgment which is objectively assessed by reference to the knowledge and standards of the time (p 259), and since safety is a relative concept, what may reasonably be foreseen by a reasonable and prudent employer must play a part in determining whether a place is / was safe (p 272). Mr Lin submitted Baker was recently distinguished in HKSAR v Gammon Construction Ltd[16] that concerned section 6A of the Factories and Industrial Undertakings Ordinance Cap 59. 52.In Gammon Construction Ltd, Gleeson NPJ held that the duty imposed upon a proprietor of an undertaking is non-delegable and follows from the creation of an obligation to “ensure” safety (insofar as is reasonably practicable) (p 37), but to describe a place / system of work as “safe” does not necessarily mean no accident can possibly occur and it does not connote the elimination of every conceivable risk (p 38).[17] Gleeson NPJ went on to say that risk assessment normally involves foresight, but standards of safety are often propounded with hindsight,[18] so in considering reasonable practicability, a court may have regard to the need to balance the likelihood of risk against cost, time and trouble necessary to avert the risk, and regard will be had to what is known at the relevant time. Where an assessment of the likelihood / gravity of risk is material to the practicability of taking precautions, then reasonable foreseeability enters the equation (pp 38-39). Gleeson NPJ referred to Baker and said at p 40:
53.I agree section 6 of OSHO imposed a duty on D1 to ensure safety so far as is reasonably practicable. Since the location at the Corridor where P slipped and fell was wet / slippery as a result of mopping by D3 without using any Sign or adopting other measures, I am prepared to accept such location to be unsafe. But in considering whether D1 took all reasonable safety precautions, regard would be had to what was known at the relevant time (see the above paragraph). Lord Kerr in his dissenting judgment in Baker said at pp 289-290,
Lord Clarke (also dissenting) in Baker said at p 299 that reasonably practical precautions involve “a consideration of what risks are reasonable foreseeable”. I have found wet-mopping (if at all) of the Corridor (which arrangements were outside D1’s control / management) during office hours was not reasonably foreseeable, and I am not persuaded D1 would be required to put in place the measures Mr Lin suggested. 54.Mr Lin drew my attention to Leung Kin Fai v IDS Logistics (Hong Kong) Ltd[19]and Rainfield Design & Associates Ltd v Siu Chi Moon,[20] but I am not persuaded they are of assistance as their facts are far removed from the present case. The framework of OSHO is not intended to impose an excessively burdensome duty to create an environment that is risk-free. In my view, P’s proposition would have required D1 as employer to take precautions that were not reasonable. On balance, I find there was no breach of employer’s duty under OSHO. P’s claim against D1 is dismissed, and D1’s contribution notice against D2 / D3 is also dismissed. 55.Contributory negligence Mr Wong argued P should be 50% contributorily negligent because she should have noted the Floor was wet when she took 4-5 steps on the Tiles before her slip and fall as (a) she was familiar with the Corridor and (b) it would not be particularly difficult to note / feel the wetness of the Tiles. He referred me to So Wang Chun v Rainforce Limited & ors,[21] Cheung Wai Mei v The Excelsior Hotel (Hong Kong) Limited trading as The Excelsior[22] and Darcy Grant Dmetrichuk v Tung Wah Group of Hospitals Wong Fut Nam College,[23] but again these cases were factually quite different. Here, P was familiar with the Corridor but she did not notice the Floor was wet because the thin film of wetness on the surface of the shiny and white Tiles that reflected the bright lighting was not readily visible. Further, as a matter of common sense, the soles of the Shoes became damp upon contact with the wet Floor and would have less friction after 4-5 steps, so it was unsurprising that whilst P initially did not feel the wetness under her shod feet she slipped and fell after 4-5 steps. In my view, there was no contributory negligence on P’s part. IV. QUANTUM (a) Personal history 56.P was educated locally up to Form 5. She claimed to be in general good health prior to the Accident except for her pre-existing left foot condition / pain and 2 previous minor injuries on duty. P used to cycle and also swim in the summer. She was a non-drinker (Ortho Reports) or social drinker (Psy Report), and had quitted smoking. P said her pre-Accident personality was extrovert and emotionally stable with fair interpersonal relationships. Her hobbies included handicrafts, cooking, karaoke, shopping, watching films and going to the bar with friends. She started to date her last boyfriend in 2011. They married in 2014, and had a baby in 2015. (b) Post-Accident condition 57.P had back sprain / contusion with soft tissue involvement, pre-existing left foot condition / pain (including accessory navicular bone (“ANB”) pain and PTTD), closed Rupture with repair done, and depressive psychiatric condition. There was dispute over whether P injured her left foot or aggravated her pre-existing left foot condition, and what the extent of her psychiatric injury was. I start with the aetiology of ANB pain and PTTD / Rupture, and on these matters there was much agreement between the Ortho Experts. (c) ANB pain 58.ANB, an unfused accessory bone of the foot, is a common and usually asymptomatic congenital condition, but it can become symptomatic[24] which may necessitate excision surgery. Most patients can expect satisfactory outcome after such surgery, but sometimes there may be residual pain which is usually not too bothering: (a) reduced friction pain or operation scar pain over the medial aspect, (b) lateral side pain caused by flatfoot (Dr Tio) although there are many causes for acquired adult flatfoot (Dr Ko), (c) operation-related nerve injury or (d) operation-related compromise of the already poor blood supply to PTT causing / progressing PTTD with tell-tale signs of persistence / increase of pain. Patients who develop PTTD after ANB excision will eventually present with valgus heel rendering the lateral part of their foot in excessive load and cause pain over lateral foot. (d) PTTD and Rupture 59.PTT attaches calf muscles to bones on the inner foot and is a major supporting structure of the medial foot holding up the arch and helping it to function while walking. PTTD is a common condition that occurs when PTT becomes inflamed (ie tibialis tendonitis) and eventually tears (ie Rupture), and is caused by intrinsic tendon problems that impair PTT’s ability to provide stability / support for the arch and results in flattening of the foot. A Rupture can be abrupt or PTT can weaken chronically to a point that it ruptures. 60.Chronic PTTD PTTD has a full spectrum of severity as the diseased tendon gradually deteriorates from insidious onset to Rupture. It may take 10 or more than 10 years (although it may differ from one patient to another) for PTTD to run its course. Symptoms of intermittent mild pain, some swelling and tendonitis may initially develop on the medial side along the course of the tendon, but as PTTD naturally / gradually progresses over time to more advanced stages, it alters the biomechanics of the foot and the diseased tendon (due to poor blood supply) becomes elongated, attenuated and thinned like “chewing gum” with loss of its elastic properties, and over time other ligaments becomes strained, the arch slowly fails, and the heel bone may shift / deviate from its normal neutral or slight varus position to the lateral side (ie valgus heel), which in turn can put impingement pressure on the lateral ankle bone to cause lateral pain, and eventually the disease may advance to a stage when the PTT will somehow spontaneously rupture or become completely separated. The common final pathway of PTTD is Rupture (ie eventual discontinuity or disruption of PTT), but PTT may reach a stage of completely or almost completely losing its function anatomically even without final discontinuity. 61.Spontaneous rupture? Dr Ko said medical literature refers to cases of spontaneous Rupture, and he himself had come across a handful of PTTD cases with Rupture but no inciting events.[25] For a chronically diseased tendon with insidious onset, the final anatomic disruption of tendon continuity will not be as traumatic / alarming as an acute Rupture of a normal / healthy tendon, so some patients may not be able to identify any inciting traumatic event and / or may not seek immediate medical attention despite some symptoms of pain, swelling and bruising. Dr Tio accepted spontaneous Rupture can occur, and a patient may miss a chronic Rupture which can be triggered by minor happening or trauma (see paragraph below), and the pain, which may not be excruciating, may be masked by pre-existing pain. 62.Minor trauma or micro-trauma Sometimes a minor twist, sprain, injury or trauma may further aggravate a diseased tendon and have contributory effect in “completing the job” before the threshold for spontaneous Rupture is reached. Also, repetitive micro-trauma (eg any normal walking, any weight carried or any other normal activity) without inciting traumatic event can also contribute to weakening of the diseased PTT and “complete the job” by taking it to end of the spectrum of severity. 63.Acute phase of Rupture In the acute phase of fresh Rupture, the patient experiences pain, swelling and bruising. An abrupt Rupture is very painful, but it is less so for Rupture of a chronically diseased tendon as the patient is already used to the pain. Dr Tio said (and on balance I accept) when Rupture occurs, the patient is still able to walk. 64.Site of pain for Rupture For a normal foot, Dr Tio opined the pain will be on medial side in the short-term, but in the long-term biomechanics of the foot will be altered with transfer of stress to the lateral part of the ankle. Dr Ko likewise opined that symptoms of pain, swelling and / or bruising in the acute phase of fresh Rupture should present on medial side, but as a result of altered biomechanics on loading during walking and weight-bearing the medial side support for the foot arch will be significantly affected with gradual deformity of the hind foot, and in the long term it will give rise to lateral impingement pain. (e) Causation: concurrent factors 65.P has to show on balance that the Accident caused or materially contributed to the loss / damage claimed. The law’s approach to causation is pragmatic where there are several concurrent factors operating to cause injury.[26] A material contribution to the outcome is sufficient to impose liability for that outcome. A contribution which does not fall within the exception de minimus non curat lex must be material; and a cause is sufficient, it does not need to be the sole cause.[27] (f) Causation: medical / documentary evidence 66.Causation is essentially a matter for the judge and not for the doctors. The judge will be assisted by the medical evidence but is not bound by it; he is not confined to those matters which the doctors may individually have picked out in their consulting rooms. It is important to bear in mind law and medicine apply different standards.[28] Mr Wong made the general point that P’s allegation that after her left foot “拗一拗” during the Accident she had a bit more pain in her left foot than her usual ache was not supported by the contemporaneous Form 2 and medical records / reports. In my view, (a) Form 2 (partially filled out by P) and the medical notes (records that medical personnel were duty bound to make) are obviously worthy of careful consideration, and (b) it is necessary to test witness evidence by reference to such documents.[29] But even if a document is “contemporaneous”, it cannot be taken in isolation and must be judged alongside other evidence in the litigation, and the court still has to decide whether it is reliable and what weight to give it.[30] The circumstances in which such document is created do not of themselves prevent it being established by other evidence that it is in fact inaccurate or unreliable. Here, P was subjected to searching cross-examination on the above point, but upon careful evaluation of her evidence in light of other evidence at trial, I find P’s account on those matters reliable whilst the initial records did not give the full picture. (g) Causation: effect of pre-existing condition 67.Where there is a relevant pre-existing condition (eg P’s chronic left foot condition / pain), it is necessary to consider the “crumbling skull” principle.[31] Mr Lin and Mr Wong agreed the 3rd scenario in Chan Kam Hoi v Dragages et Trauvaux Publics[32] which I have summarised in Yu Wai Kan v Law Cho Tai[33] was applicable:
(h) Pre-existing left foot condition / pain 68.In 1992 P suffered bone fracture at left ankle for unidentified reason, and after recovery was referred to the orthopaedic and traumatology department (“OTD”) of Tseung Kwan O Hospital (“TKOH”) for follow-up. When P was 9 years old, the front part of her medial left ankle became uncomfortable for which she sought medical treatment, but it did not affect her studies and activities of daily living (“ADL”). On 21 April 2001, P discovered ANB at left mid-foot when she attended TKOH GOPD for annoying left medial foot pain. On 23 July 2001 P had ANB excision, but there was still persistent left foot pain (but it did not affect P’s ADL) for which she was referred to TKOH OTD foot and ankle clinic (“FAC”). P had gradual increase in pain in dorsal area of left foot just in front of her ankle, and at follow-up on 31 December 2002 she had diffuse / non-specific pain but fair mid-foot function.[34] Dr Ko agreed there was no clinical picture of Rupture up to the end of 2002. 69.P did not attend follow-up between 2002 and 2008 as she was told her post-operative condition was static. Although the notes by a psychiatric advance practice nurse of Princess Margaret Hospital (“PMH”) on 11 March 2010 recorded P “...... felt unhappy in the past as distressed by foot pain” and “[P’s mother] believed [P’s] mood was mainly affected by pain since F3 after foot operation”, there was no persistent low mood or recognisable psychiatric illness. I find on balance P in her childhood might have griped about her left foot predicament, but she had since learned to get on with her life and put up with her left foot ache (which she rated as stable and mild). 70.Dr Ko opined (and I accept) gradual increase in pain that turned persistent after ANB excision were tell-tale features of insidious onset and gradual deterioration of PTTD until it caught P’s attention in 2007 such that she requested follow-up at TKOH OTD. Dr Ko initially considered it unlikely the Rupture happened between 2002 and 2008 as the increase in pain “can also be correlated and explained by the episodic exacerbation of pain of the PTTD itself”, but he later said he could not be sure without evidence as to clinical features during this period. 71.On 23 April 2008, P attended TKOH OTD for vague / diffuse medial and dorsal left foot pain with walking tolerance of about 1 hour. There was tenderness over medial deltoid and PTT, but the swelling due to inflammation / tendonitis later subsided and the pain became mild and stable. P was told nothing much could be done for her chronic discomfort, and her next follow-up was almost 2 years later (ie some time after 1 December 2009). It was uneventful between April 2008 and October 2009 with no evidence that P sought medical treatment for her left foot. She continued to work as a property officer, wore mid-heeled shoes and had a fairly normal life. In July 2009 P re-joined D1 with 60% clerical / administrative work and 40% inspection work for the Kln Buildings, and she appeared able to handle such work. 72.The Ortho Experts agreed that as at April 2008 there were no clinical features of recent Rupture[35] otherwise (according to Dr Tio) the TKOH OTD doctor would have ordered further investigation.[36] I find on balance P developed PTTD after ANB excision in July 2001, such PTTD ran a gradual deteriorating course, and the pain / swelling caused by inflammation (ie tendonitis) in April 2008 was an episodic exacerbation of such PTTD. In my view, it was unlikely that Rupture occurred between July 2001 and April 2008 (a) in absence of any clinical feature of bruising (as a result of bleeding from the PTT tear in the acute phase of Rupture) and (b) with evidence of gradual increase in left foot pain that turned persistent (which suggested PTTD was still gradually deteriorating instead of having reached the final pathway of Rupture). 73.Dr Ko opined that had the Accident not happened, still it would be almost a medical certainty that P would end up with Rupture since PTTD is a progressively deteriorating disease that travels the spectrum of severity from tendonitis to tendon disruption (ie it is always a race between time and final outcome). Bearing in mind it takes 10 years or more for PTTD to reach the final outcome of Rupture in which event the reconstruction operation that P underwent in September 2011 (see paragraph 119 below) will be needed, and taking into account the history of P’s PTTD and pre-existing foot condition with onset since childhood, but acknowledging her relatively stable and mild condition before the Accident despite 7-8 years of deterioration and the fact that only 1 out of several medial ligaments was overstrained in trying to compensate for weakening / loss of functional support by PTT (see paragraphs 101-102 below), I am prepared to allow 20 years from 2002 (the year after ANB excision) for P’s PTTD to reach the final pathway of PTT discontinuity had there been no Accident. Since such event would have occurred, say, in / about 2022, its impact on damages would have to be considered. (i) Injuries and treatment 74.8 October 2009 The Ortho Reports reported P noticed pain in low back area (which was more painful) and left medial ankle after her slip and fall. As P’s left foot was only slightly inverted (“拗一拗”), she did not have clinical features of a full ankle inversion sprain injury,[37] but only a bit more pain than her usual ache. P left work at 7:00-8:00pm, and applied bonesetter liniment and pain-relief patch when she returned home. 75.9 October 2009 P (still feeling painful) returned to work, but obtained Yu’s permission to stay home the following day, so she finished all her outstanding tasks and did not leave until 9:00pm. During the day, P filled out Form 2 at Yu’s request, and ticked the boxes for elbow and pelvis in section J “身體的損傷部位”. I accept she forgot to tick the box for ankle because (a) the most significant site of pain then was at her low back and (b) her left foot just had a bit more pain than the chronic discomfort all along. I find the back and elbows were more painful as they hit the floor during P’s slip and fall, so P focused on those areas rather than the slight inversion of her left ankle when she filled out Form 2 during a long / busy day at A8 with substantial pain at her low back. 76.10 October 2009 P found her back quite painful, so she attended PMH’s AED. The triage notes recorded P had history of tibialis tendonitis and complained of back pain with decreased range of movement (“ROM”). The consultation notes recorded P landed on her buttocks and right elbow, and complained of low back pain. Examination revealed tenderness over lumbar region of back, “walking stable, back flexion finger to mid-leg, SLR both 90º”, and full lower limb power (5/5). According to the report by Dr Lo Chun-hung (“Dr Lo”) dated 31 August 2011, there was no mention of left foot injury / pain on 10 October 2009. 77.P said she told the medical personnel she had a bit more pain in her left foot when explaining her pre-existing condition. Dr Tio, who fairly accepted he had no personal knowledge, opined the AED doctor over-concentrated on P’s more severe back symptoms and neurology of her lower limbs, and probably assumed her left ankle pain was related to her pre-existing tibialis tendonitis as borne out the doctor’s examination of P’s back / leg but not her left foot / ankle:
78.On careful consideration, I am unable to brush aside Dr Tio’s opinion as speculative surmise as Mr Wong would have me do:
In the context of a busy AED environment where the doctor’s consultation took about 15 minutes,[43] and without further evidence as to how the AED notes were made, I find on balance P’s disclosure of a bit more pain in her left foot was drowned in the background of her chronic condition, so it was not recorded in the AED notes. With such finding, there was no necessary inconsistency between P’s recollection of her exchange with the medical personal and the record in the AED notes. 79.12 October 2009 On 12 October 2009, P went to Yau Ma Tei Jockey Club GOPC (“YMTJC GOPC”). The medical records noted it was for low back pain. Examination showed P could walk unaided without focus tenderness but with mild limitation of movement of spine due to pain. P said she mentioned left foot pain, but concentrated on the more severe back pain. She was referred for 1st course of physiotherapy (24 sessions) at United Christian Hospital (“UCH”) from 27 October 2009 until 14 April 2010. 80.Plainly, P’s back pain remained her essential concern, and she was not dramatic in describing her left ankle pain:“...... 有痛多咗，咁就係話同10月10號嗰個情況咪一樣囉，都係咁”, “...... [P]話醫生，「其實都係痛啲，...」”. The doctor at PMH AED had told P it was nothing serious, and likewise the doctor here “摸一摸、撳一撳” and told P (who had heard this many times before) nothing could be done for her chronic condition, “跟住就叫[P]接受喇，咁佢話「係咁㗎囉喎，可能有少少唔知其他不穩定因素影響啩，咁就痛啲囉，咁樣可能，或者係整到又痛啲囉，咁冇嘢吖，撳落去，冇問題呀，又冇斷骨，冇點點點。」”. In my view, the doctor must have thought it was an episodic exacerbation of P’s pre-existing PTTD, so it came as no surprise that in the records the doctor focused on P’s more significant back pain rather than the relatively minor ankle pain at the site of P’s pre-existing condition. I also refer to the reasons set out in paragraphs 78 above mutatis mutandis. 81.13-21 October 2009 On 13 October 2009, P attended Yau Tong Integrated Medical Centre (“YTIMC”). It was recorded to be for low back pain. Examination showed tenderness at right lower back, and forward flexion was down to bilateral knee. On 16 October 2009, P attended follow-up at YMTJC GOPC for continuation of treatment. On 21 October 2009, P re-attended YTIMC for post-injury back pain, and examination showed tenderness over right lower back. In my view, P’s back pain remained her chief complaint, and P did not highlight her minor ankle pain in view of earlier assurances that it was nothing serious in the context of her pre-existing left foot condition. 82.27 October 2009 P started her 1st course of physiotherapy on 27 October 2009 at UCH’s Yung Fung Shee Memorial Centre (“YFSMC”). On initial examination, P’s back pain was 6-7/10 and leg pain was 8-9/10. P attended YTIMC on 27 October and 20 and 30 November 2009, and it was noted her condition was improving. After 24 physiotherapy sessions P reported no significant improvement, and she defaulted after 14 April 2010. 83.29 October 2009 P re-attended PMH AED. According to Dr Lo’s medical reports dated 4 May 2010 and 31 August 2011, it was for low back pain. The AED notes recorded “ambulatory unaided”, “persistent back pain after injury” with “left leg pain” partially relieved by analgesics, and past history of chronic left foot pain and back injury. Examination revealed “ROM ü” (back pain was not very serious), “SLR L 80º R 80º” (within normal range) and lower limbs power was 5/5 (normal). P was concerned about her left leg pain, and wished to expedite her next follow-up at TKOH OTD. 84.The 1st documented complaint of P’s left leg pain on 27 October 2009 was subjectively more severe than her back pain which by then was not too serious, and P was sufficiently worried to ask for earlier follow-up at TKOH OTD. But the referral letter, which recorded P’s complaint of persistent low back pain with radiation to left leg that was partially relieved by analgesics, clearly showed the doctor suspected back rather than foot injury. I agree with Dr Tio there was no proper examination of P’s left ankle / foot. So whilst I accept P mentioned her chronic left foot condition and minor ankle pain in answer to usual questions put to her at AED (see footnote 42 above), such complaint was cast into the background of her pre-existing condition in face of her more serious back / leg pain. 85.November 2009 On 2, 4, 11 and 24 November 2009, P sought treatment at “藥師堂-惠柏中醫診所” for external application of Chinese medicine. On 5 November 2009, P attended UCH’s Kwun Tong Jockey Club Health Centre GOPC (“KTJCHC GOPC”). It was reported P complained of low back pain on walking / sitting that was partially controlled with analgesics, and there was lower limb numbness but no weakness. Examination revealed P could walk unaided with normal gait with mild tenderness over L4/5 region and full forward flexion. The diagnosis was low back pain. On 9 November 2009, P returned to KTJCHC GOPC for low back pain, but P’s back condition was said to be static. This appeared to be continuation of treatment with focus on P’s back, and again there was no evidence of examination of P’s foot / ankle. On balance I accept P did not highlight her minor ankle pain in view of the more severe back / leg pain and the previous doctor assurances that it was nothing serious. 86.13 November 2009 P re-attended PMH AED. According to the AED notes, at triage P complained “pain persisted” after back injury, and she “walked well” on arrival. It was recorded P complained to the doctor of residual back pain. Examination showed she could walk unaided, but had tight muscles in the low back with tenderness. In my view, this reflected continued concern over P’s painful back / left leg, so although P mentioned she had a bit more ankle pain after the Accident in answer to usual AED questions (see footnote 42 above), it did not attract attention in view of her chronic left foot condition and more significant back and left leg complaints as reflected by her anxiety to expedite the follow-up at TKOH OTD (to 1 December 2009) and lack of proper examination of her left foot / ankle. 87.16 November 2009 On 16 November 2009, P attended PMH AED for left foot pain. I find on balance that on 15 November 2009 P’s left ankle was red and swollen, “係劇痛咗一日吖嘛，係因為劇痛，所以先上急症室㗎嘛 ......” At triage P gave history of “tibialis tendonitis” and complained of left foot pain for 1 day with “sharp pain++” and reduced ROM. She told the doctor about “chronic foot pain, [history] of excision of [left ANB]”, and complained of left foot pain for 1 day, “walk unaided+, bruising+, swelling+”. Examination showed pain at lateral side of left foot with full ROM and “power 5/5”. I accept P did mention she had slip and fall with back pain,[44] but her attendance was essentially for her foot pain that flared up the day before. Mr Wong suggested the left foot pain for 1 day was unrelated to the Accident, which echoed Dr Lo’s medical report dated 4 May 2010 that P’s “left foot pain on 16/11/09 ...... was not related to the [Accident]”, but P disagreed. 88.Medical records In coming to the above findings, I have carefully considered the medical records made by different doctors that did not record complaint of left ankle injury / pain. But P’s circumstances were out of the ordinary. First, there was long history of chronic left foot condition with some mild ache all along. Secondly, P had put up with such mild ache over the years and would not have made a big point of having a bit more pain in face of more severe back / leg pain. Thirdly, P did not highlight this in subsequent consultations as the doctors told her on 10 and 12 October 2009 it was nothing serious. Fourthly, there were no florid signs of full inversion ankle sprain to alert the doctors for differential consideration in contrast to P’s pre-existing condition. In my view, the chemistry of the above factors led the doctors in busy AED / GOPD environment to relegate P’s complaint of a bit more left ankle pain to her pre-existing condition. 89.Medical reports Mr Wong urged me to consider Dr Lo’s 2 medical reports dated 4 May 2010 and 31 August 2011 that referred to P’s various attendances at PMH AED from 10 October 2009 to 11 March 2010. It was evident from the AED notes that P was treated by different doctors,[45] so Dr Lo’s reports[46] were compiled from the medical records and could not carry further weight than the primary AED notes. Insofar as Dr Lo’s report dated 4 May 2010 observed “[P] was attended for left foot pain on 16/11/2009 which was not related to the [Accident]”, there was no evidence he was the treating doctor on 16 November 2009 and in any event Dr Lo did not state the clinical reason for such comment and did not explain the medical cause for P’s left foot pain for 1 day if not related to the Accident. On balance, I find myself unable to place weight on such observation. 90.26 November 2009 P attended KTJCHC GOPC. Its medical report dated 22 June 2012 noted P could “walk unaided quickly” with static back pain. The diagnosis was “chronic pain from back and foot”. Dr Tio agreed a patient with back / foot pain, if not too severe, could still walk, but P said she could not have walked quickly with her back pain. More importantly, Dr Tio noted the KTJCHC GOPC doctors on 5, 9 and 26 November 2009 concentrated on P’s back symptoms and did not carry out detailed examination of her left foot / ankle. 91.1 December 2009 P attended TKOH OTD FAC for reported injury on duty on 8 October 2009, and complained of back pain, left lower limb numbness, and mild pain over left ankle / foot. X-ray taken at AED showed loss of lordosis. The consultation notes recorded P complained of “mild pain over [left] lateral ankle and dorsum of foot, could not recall direct ankle or foot injury”. Examination revealed P’s gait was slow and “mild antalgic”, and lumbar spine was stiff with diffuse tenderness, “paraspinal muscle spasm++” and “diminished L5S1 disc spaces”. Left SLR was limited at 60º. P was “[informed] back injury likely resulted in PID L5S1”, and was referred to UCH for physiotherapy for back injury, prolapsed intervertebral disc (“PID”) L5S1 and likely left sciatica. 92.In my view, even when there were more signs of left ankle / foot pain and P’s gait was “mild antalgic”, which indicated there was pain with weight-bearing, the focus was still on P’s back symptoms with suspicion of possible PID and sciatica. There was no evidence of detailed examination of P’s left foot / ankle. Mr Wong submitted if the Accident were related to P’s left foot pain, she would not have told the doctor she “could not recall direct ankle or foot injury” as the Accident should still be fresh in her mind. I disagree as (a) P’s left foot was only inverted slightly (“拗一拗”) during the Accident so it was not the site of “direct” contusion injury, and (b) P was previously told by doctors that the bit more pain she felt over her left ankle was nothing serious in the context of her chronic left foot condition. 93.Rupture P did not claim Rupture occurred immediately upon occurrence of the Accident. The Ortho Experts agreed the medical notes / records for the 1½ months up to 15 November 2009 did not show feature of acute / recent Rupture. Dr Tio noted P was relatively well with similar symptoms for 7-8 years prior to the Accident despite her pre-existing left foot problem, and there was no evidence of vigorous sports or further injury for the 1½ months after the Accident, so the Accident probably further weakened P’s already diseased PTT and aggravated her pre-existing PTTD to precipitate the Rupture on / about 15 November 2009 with sudden flare up of left foot pain, swelling and bruising, which eventually led to reconstruction operation in September 2011. But Dr Ko opined that P’s residual left ankle condition were solely related to and caused by her long-standing and deteriorating pre-existing PTTD with eventual spontaneous Rupture and subsequent reconstruction operation, but it was uncertain whether such Rupture occurred prior to 8 October 2009. 94.I have found P’s Rupture did not occur on / before 23 April 2008. Dr Ko could not date such Rupture, but upon review of the findings of the MRI on 18 June 2010 that confirmed the existence of Rupture (see paragraph 113 below, “2010 MRI”), he suggested it must have occurred ½ year or more ago (ie any time before the beginning of 2010) because (a) proximal retraction of PTT to the level of the left tibia indicated the tear was at least ½ year old, and (b) the associated effusion, swelling or oedema around the ruptured tendon area, ie the post-injury, post-Rupture or post-traumatic inflammatory reactive changes, had settled / died down. So Rupture must have happened in the 1½ year period between April 2008 and beginning of 2010, hence Dr Tio’s suggestion that Rupture occurred on / about 15 November 2009 was at least consistent with the MRI findings. 95.Dr Ko said more precise dating of the Rupture would require examination of the clinical features, but the period between 23 April 2008 and 8 October 2009 was uneventful with no evidence of clinical features of recent Rupture. Other than Rupture and soft tissue injury in respect of the PTT tear (see paragraph 114 below) that went unnoticed by P’s doctors until the 2010 MRI, there was no other inciting event to account for such change of P’s left foot condition on / after 15 November 2009.[47] Further, although it was medically possible for a chronic-type Rupture triggered by micro-trauma to go unnoticed, P was all along sensitive to changes in her left foot,[48] and she even noticed a bit more pain than her usual ache after the Accident. In my view, P was alert even to small changes in her left foot / ankle despite her underlying PTTD, and I find she would have noticed and paid attention to any experience of pain, swelling and bruising in the acute phase of any fresh Rupture (even if it were a chronic-type one). But P went about her daily life as usual and did not notice any such signs prior to 15 November 2009. On balance, I am not persuaded P’s Rupture happened prior to 8 October 2009, and find that more probable than not it occurred on / about 15 November 2009 as Dr Tio suggested. 96.But Dr Ko suggested the clinical features recorded in the AED notes for 16 November 2009 did not exactly fit the picture of Rupture. First, Dr Ko suggested the possibility of the Accident causing Rupture on / about 15 November 2009 to be quite remote as pain, swelling and bruising should emerge within 24-48 hours, and the energy of P’s slip and fall would not have prolonged enough to trigger the Rupture 39 days later, hence Rupture probably occurred before 8 October 2009 and was unrelated to the Accident. But I have found P’s left foot was inverted only slightly (“拗一拗”), so there was no immediate swelling or bruising but just a bit more foot pain than the usual ache, which in my view would have contributed to further weakening of the diseased PTT that led to the eventual Rupture. 97.Secondly, Dr Ko said with an inversion-type ankle sprain injury, the primary structures that were sprained would be on the lateral side of the left ankle. Dr Tio readily agreed this would be the case for normal individuals, but P had pre-existing problems with her medial left foot so the reflex protective mechanism during a fall would contract the tendons around the ankle (more concentrated on the medial foot) which might give rise to symptoms. Actually, Dr Ko also agreed such reflex reaction could cause “pain on the medial side or somewhere around the ankle”. Since P did not have a normal left foot and it was only slightly inverted during the Accident, it was unsurprising she had some lingering pain that was a bit over and above her usual ache, and the aforesaid reflex reaction could explain why such slight inversion of P’s left foot could further weaken her diseased PTT and eventually lead to Rupture. 98.Thirdly, the AED notes of 16 November 2009 and consultation notes of TKOH OTD FAC of 1 December 2009 recorded mild pain over lateral ankle and dorsum of foot, which Dr Ko said did not correspond to the anatomic site of PTT on medial side. Dr Ko also said there should be relevant clinical features on the medial side had PTT rupture occurred on / about 15 November 2009. But I prefer Dr Tio’s explanation that there could be foot pain on the lateral side after P’s Rupture. A patient with Rupture in a normal foot would experience medial side pain in the short-term, but biomechanics of the foot would be altered in the long-term to impose more stress on the lateral part of the ankle. But P did not have a normal left foot. Her pre-existing left foot condition in the past 7-8 years would have altered the biomechanics of her left foot, so she could present with lateral pain even though there should be some swelling or tenderness if one paid attention particularly to the medial aspect of the foot upon the Rupture. It must be remembered the AED notes of 16 November 2009 did not record the site of observed swelling and bruising. Having considered Dr Tio’s persuasive views, I find on balance the slight inversion of P’s left foot during the Accident and the reflex protective mechanism acted in concert to further weaken P’s diseased PTT with so much decompensation of her left foot / ankle that it caused lateral ankle pain and contributed to the eventual Rupture. 99.Fourthly, the Ortho Experts agreed the clinical findings on 16 November 2009 of sharp foot pain for 1 day, swelling and bruising were consistent with Rupture. Although Dr Ko tried to suggest it was an episodic exacerbation of P’s chronic PTTD, he accepted there would not have been bruising in an episodic exacerbation. Bruising from bleeding as a result of closed rupture of the tendon was a clinical feature of the acute phase of PTT rupture.[49] 100.Fifthly, on 16 November 2009 P complained to the triage nurse of reduced ROM (probably stiffness) but the AED doctor found full ROM,[50] and P was documented to be walking well and unaided. Dr Ko said a fresh Rupture is normally associated with some detectable decrease in motor power or limitation in ROM due to bleeding within the enclosed space of the tendon sheath causing increase in tension, pressure and pain. But P’s left foot was not normal and had a long history of underlying chronic problems. On balance, I prefer Dr Tio’s opinion that (a) gradual deterioration of PTT function may not affect lower limb power as there are different muscles that can replace such function, and (b) patients with pre-existing medial foot problems who suffer Rupture will still be able to walk. I find on balance P did experience some stiffness upon the Rupture, but she still had reasonable ROM and was able to walk. 101.Sixthly, the 2010 MRI showed increased signal at the posterior tibio-talar ligament consistent with ligamentous sprain. Dr Tio opined that for such sprain to be visible in the 2010 MRI there must be some kind of injury to the ankle (within ½ to 1 year before 18 June 2010) rather than chronic-type spontaneous Rupture that happened a long time ago and went unnoticed, and the inversion mechanism in relation to P’s left foot during her slip and fall would be the kind of recent injury that could contribute to the weakening of the diseased PTT and / or support structure of the medial ankle that would lead to eventual Rupture. 102.There was no dispute the posterior tibio-talar ligament had features of sprain, strain, overloading or inflammatory changes. Dr Ko suggested this was an indicator PTT had already lost its function for some time following Rupture, so over time the medial structures were overstrained in trying to compensate for loss of functional support by PTT. Dr Ko agreed the affected medial structures would be a bundle of medial ligaments,[51] but the 2010 MRI showed increased signal for only the posterior tibio-talar ligament (which suggested other medial ligaments had not yet displayed signs of overloading or strain). Dr Ko then reminded this should be considered together with other features of P’s long-standing chronic condition:
103.But Dr Ko conceded (a) the diagnosis of degenerative change (and there was no dispute P got PTTD for years as a result of ANB excision with poor blood supply to the PTT and progressive deterioration of symptoms) only shows aetiology and is not conclusive for dating Rupture, (b) Rupture can be caused by sprain injury to the ankle or by chronic degeneration with strain on the medial ligaments due to overloading as a result of altered ankle biomechanics, and (c) the foot pain for 1 day before 16 November 2009 might be due to Rupture or regular episodic exacerbation of the PTTD. Dr Ko further agreed that assuming PTT was still in some continuity on 8 October 2009, any sprain / injury to the ankle (eg the Accident) could have further aggravated PTT without actual rupture, and P could still walk and carry out her normal daily routine, but repetitive micro-trauma in everyday activities could lead to further weakening and eventual Rupture. Thus, logically and practically, Dr Ko’s opinion would not exclude the real possibility that the Accident and repetitive micro-trauma activities conspired and led to eventual Rupture on / about 15 November 2009. 104.Whilst medical doctors practice the science of aetiology and are concerned with medical certainty, the issue of legal causation poses a different question. On balance, I accept that after the ANB excision P developed PTTD that ran a naturally deteriorating course over the years. I have found PTT discontinuity prior to 8 October 2009 to be unlikely, and Dr Ko’s opinion did not undermine Dr Tio’s hypothesis that the Accident materially contributed to P’s Rupture by further weakening the already diseased PTT. On balance, what most likely happened was the chronic pre-existing condition of P’s left ankle acted in concert with P’s slip and fall on 8 October 2009 to further weaken her PTT to a point that repetitive micro-trauma activities such as walking or other daily routine triggered the tendon to rupture 39 days later on / about 15 November 2009 without the presence of any further traumatic injury or other inciting event, which explained why P did not feel significant ankle pain, swelling and bruising during the intervening period until Rupture just before her attendance at PMH AED on 16 November 2009. 105.The Accident was not the sole cause of P’s Rupture, consequent reconstruction operation and left foot disabilities, but it was a “but for” contributing cause that materially increased the risk for the same. On balance, I accept Dr Tio’s opinion that ⅔ of P’s post-Accident left foot condition was due to her pre-existing condition and ⅓ was due to the Accident, but as explained in paragraph 73 above, the effect of the Accident on P’s left foot disabilities would have been spent by 2022 for even without the Accident P’s PTTD would have reached its final pathway of Rupture, which would have necessitated reconstruction operation with consequent disabilities that P currently suffers. 106.December 2009 to January 2010 P could not sleep at night due to back pain, which caused low mood and crying spells, and she gradually had difficulty in walking as a result of left foot pain. On 8 and 12 December 2009, P re-attended PMH AED for persistent back pain. From 31 December 2009 to 20 February 2010, P also sought private treatment from “Doctor Cheng Shu Ting’s Clinic”. From 7 January until 14 May 2010, P had 14 private physiotherapy sessions for her back. 107.February 2010 On 17 February 2010, P attended KTJCHC GOPC for low back pain, but her back condition was static. The diagnosis was chronic pain from back and foot. When P increased the rotation exercise on 22 February 2010 she felt severe low back pain, so she consulted Dr Ma Shing Yan Lawrence on the following day. She was admitted to St Paul’s Hospital (“SPH”) for private lumbrosacral MRI that showed L5 partial sacralisation. Pain control, bed rest and physiotherapy were prescribed, and she was discharged on 25 February 2010 with some improvement with pain relief. 108.March 2010 On 4 March 2010, P returned to YMTJC GOPC complaining of low back pain. Examination showed mild tenderness over low back. On 9 March 2010, P attended follow-up at TKOH OTD and was referred to the pain clinic with appointment in January 2011. On 11 March 2010, P re-attended PMH AED for persistent back pain when low mood was observed in ward. P stayed overnight in the observation room, and was assessed by a psychiatric advance practice nurse:
P was referred to Yung Fung Shee Psychiatric Clinic (“YFSPC”) for adjustment disorder and medically inexplicable low back pain. 109.On 16 March 2010, P attended UCH AED for low back pain and left lower limb numbness / pain. On 22 March 2010, P attended AED of Queen Elizabeth Hospital (“QEH”) for low back pain. Examination revealed tenderness over lower back with reduced ROM but no significant neurological deficit. P’s sitting / standing tolerance was limited at 15 / 5 minutes due to pain. She was admitted to the emergency medical ward for pain control and physiotherapy, and discharged on the same day after improvement of symptoms. On 23 March 2010, P first attended YFSPC complaining of uncertainty, hopelessness, stigmatisation, irritability, crying spells, poor volition, suicidal idea and insomnia after the Accident. The diagnosis was depression. P attended 14 re-assessments from 23 April 2010 to 2 February 2012, and was referred to community psychiatric nursing services from 25 May to 9 November 2010. P claimed the psychiatric medication improved her condition slightly, but had side effects of exhaustion, moodiness and impatience. 110.April 2010 P’s back pain was static since 16 April 2010, and she was more concerned with her persistent left ankle pain and imbalance. From 19 April to 24 May 2010, P sought treatment from “Hu Qing Yu Tang Pharmaceutical (HK) Ltd.”, 中醫陳志泰骨傷科醫務所, 李偉清中醫跌打醫館and 黃振球醫務所(跌打) for external application of Chinese medicine over her back and left foot. Medical Assessment Board (“MAB”) assessment arranged for 21 April 2010 was postponed for psychiatric assessment. On 25 April 2010, P attended UCH AED for dizziness, shortness of breath and auditory hallucinations, and was referred to UCH’s psychiatric department (“Psy Dept”). Since P’s back pain did not improve, she consulted Dr Ko Wing Man who referred her to St Teresa’s Hospital (“STH”) for detailed check up. MRI was done for P’s waist / body on 8 May 2010 with no compression of neural elements. P was discharged on 11 May 2010. 111.On 23 April 2010, P consulted Dr Chan Tin Yau Teddy (“Dr Chan”) at STH’s outpatient clinic. P reported that her persistent and severe low back pain made her insomniac, depressed, tearful and unable to resume duty, and her mood remained low despite treatment at YFSPC. Since late March 2010 she began to experience auditory hallucination with deteriorated memory and feeling of uselessness, helplessness and hopelessness. Dr Chan’s diagnosis was severe depressive episode with psychotic symptoms precipitated by the Accident and perpetuated by persistent low back pain and inability to resume duty. P attended follow-up 17 times, and her mental state gradually improved. Since late August 2010 there were no more psychotic symptoms. At the last session on 2 November 2010, P’s appetite improved; she could sleep for 10 hours; she appeared tidy, neat and calm, was oriented well in time, place and person, and had good eye contact without psychotic symptoms or suicidal idea; she was euthymic and her speech was coherent and relevant. 112.May 2010 From 12 May to 9 June 2010, P attended 13 sessions of treatment by “The Chinese University of Hong Kong Chinese Medicine Clinical Training and Research Centre” for external application of Chinese medicine, massage and acupuncture treatment. On 15 May 2010, P attended UCH AED for low back and left leg pain. She was referred to the OTD and physiotherapy department (“Phy Dept”). On 17 May 2010, P attended UCH AED for low back pain, left leg weakness / numbness and low mood. She was again referred to Psy / Phy Depts. On 20 May 2010, P sought treatment at Novo Medical Group, and attended TKOH OTD GOPC walking with 1 stick with report of back pain and numbness. The doctor explained no surgical intervention was indicated, and psychiatrists were better positioned to treat her pain symptoms. I note that up to this stage none of the treating doctors suspected any Rupture. 113.18 June 2010 P’s left ankle remained painful (especially when she walked on the staircase), so she sought outpatient treatment at STH. P was hospitalised for the 2010 MRI which confirmed P’s Rupture. She was prescribed physiotherapy / medication, and discharged on 21 June 2010. The 2010 MRI findings were discussed in paragraphs 101-102 above and 114 below. 114. July / August 2010 P was referred for 2nd course of physiotherapy (13 sessions) at UCH for low back pain and left sciatica from 9 July 2010 until 1 December 2010. Pain was graded 4/10 and 3-4/10 on initial assessment and assessment on 24 November 2010 respectively. On 24 August 2010, P attended TKOH OTD FAC to report her back pain was slightly better but her main problem was left ankle pain with walking tolerance of about 20 minutes. The 2010 MRI reported torn PTT retracted to distal tibia with soft tissue injury of PTT tear. Dr Samson Chan’s medical report dated 17 April 2012 noted “[P] was then claiming a left ankle injury” at the time of the Accident, but in fact P was attended by Dr Ng Cheuk Kee whose consultation notes recorded “today post IOD injury 11 month ...... LBP slightly better ...... now mainly left ankle pain ......” 115.September to November 2010 On 7 September 2010, P attended TKOH OTD FAC walking with 1 stick. The consultation notes recorded left sciatica radiation back pain slowly subsided, but P’s left ankle was persistently painful with weakness. Examination revealed “gait limping but could stand”, no calf-wasting, and mild diffused tenderness at medial ankle and “distal stump of TP”. P was referred for detailed documentation / training and for option of reconstruction operation if progress was static. P was referred to UCH Phy Dept for “supernumerary ossicle, left foot accessory navicular” from 15 September 2010 to 1 December 2010 (7 sessions). From 25 September to 18 October 2010, P had 4 sessions with 羅舜海中醫師for “放血” and acupuncture treatment for her left foot. P was insomniac because of pain, and attended Chinese medical practitioner at “Evergreen Medicine Company Limited” for 20 sessions until 21 November 2011 and was prescribed Chinese herbal medicine. On 3 November 2010, P attended TKOH OTD FAC when risk / benefit of salvage surgical option with tendon transfer were explained. 116.January 2011 P received treatment at UCH’s pain clinic. P had to use waist girdle and crutch for walking, and more effective analgesic medication was prescribed. When pain was not relieved, P was admitted to UCH on 13 January 2011 for 1 day for steroid injection. She then attended follow-up at UCH’s pain clinic every 3-5 months. 117.March / April 2011 P made slow progress with training. On 22 March 2011, P attended TKOH OTD FAC to discuss possible reconstruction operation. She was clinically admitted to TKOH OTD from 28 to 30 March 2011 for assessment of her left foot. P complained of pain at navicular area of left foot, but could walk unaided with limping gait. Cast for ankle foot orthosis (“AFO”) was taken. P was referred to UCH’s Phy Dept for “left tibialis posterior dysfunction”. P attended TKOH’s prosthetic and orthotic department for fitting the AFO, but claimed she did not wear the AFO as it interfered with walking. On 11 April 2011, a nerve conduction study was done at STH for left foot weakness / numbness, which showed axonal neuropathy over left tibial nerve with level of injury likely below or around ankle. 118.Pending surgery P decided to accept reconstruction surgery as there was concern her left foot would otherwise become flatfoot and her body weight would intensify the foot eversion and cause greater pain. P received left foot mobility assessment on 14 June and 18 July 2011. She consulted Drs Ko Wing Man and Wong Man Shun who confirmed surgery was required. P started her 3rd course of physiotherapy for her left ankle condition on 15 July 2011 and had 2 sessions by 22 July 2011. 119.Reconstruction surgery and aftermath On 28 September 2011, P underwent operative reconstruction of PTT excision with harvest and transfer of flexor halluces longus (“FHL”), and was hospitalised for 15 days until discharge on 11 October 2011. P was referred for post-operative AFO and walking sandal. P was rehabilitated, but had persistent left foot numbness / pain over medial mid-foot which was bothering. On 25 October 2011, the AFO was modified to keep the ankle in neutral position. P was referred to PMH Phy Dept SOPC for 9 sessions of physiotherapy from 18 October 2011 to 19 February 2012. On 6 December 2011, P was ambulating with weight-bearing, but walking tolerance was 15 minutes only due to pain / numbness. Nerve conduction velocity and electromyography test (“NCV/EMG”) showed the transferred tendon was intact. 120.Ortho Reports When the Ortho Experts examined P on 9 December 2011, her orthopaedic condition was static (Dr Tio) or had reached maximum medical improvement (“MMI”) (Dr Ko). P could sit for 45 minutes, wear normal sports shoes, walk with a stick held in her right hand with mild limping, and more limping without stick. There was mild instability on tiptoe and heel standing / walking. Left single leg stance was unstable. She could do full squat but had to get up with support on table. For the back, there was tenderness at L4/5 upper sacral area and left lower paralumbar but no muscle spasm. X-ray showed lumbar spine had decrease in lumbar lordosis and pre-existing mild scoliosis. Back flexion, extension, right / left lateral flexion and rotation to right / left were finger to mid-shin, 30º, 30º and 60º respectively with increase in low back pain. Waddell’s simulation test was positive for shoulder compression, upper limb elevation and truncal rotation. For the left foot, there was mild tenderness at surgical scar; medial plantar surface and medial posterior ankle had 80% and 50% decrease in sensation; and there was slight decrease in toes extension, but no significant atrophy of foot muscle. Lower limb sensation was essentially normal except left foot area:
121.Nerve injury Private MRI of left foot was taken on 20 December 2011 because P had decreased sensation of sole and decreased movement of all toes. The findings suggested early changes to the posterior tibial nerve and:
On 31 January 2012, P’s NCV/EMG showed dysfunction of distal posterior tibial nerve, and MRI showed intact FHL tendon which was tenodesised. P was told suboptimal result might be expected from the salvage operation: weakened flexor and transferred tendon power were to be expected, and nerve numbness might be related to the surgical procedure. 122.Aftermath On 2 February 2012, P reported to YFSPC to be worried, irritable and low with hallucinatory voices and images. She was offered antidepressant medication and sleeping pill. P still required psychiatric outpatient treatment at YFSPC, but her condition was static for MAB assessment. P had 11 sessions of acupuncture treatment for her foot from registered Chinese medical practitioner 湯紹聰from 26 April 2012 to 17 May 2012. P claimed her pain affected her alertness and mood, and in May 2012 she was referred to UCH’s Psy Dept for observation for 1 day. P also sought treatment at TKOH’s neurosurgery department in November 2012 for numbness from her toes to foot. 123.Psy Report When examined by the Psy Experts on 22 November 2012, P had a frowned appearance and said her mood was low. Her speech was a bit slow and her answers brief, but she was cooperative, coherent and relevant. She appeared to hear an alarm bell which the Psy Experts could not hear, and twisted her back several times to ease her back pain. P said her pre-Accident ankle pain was extremely mild and remained unchanged after the Accident, and as she had such mild and stable pain for so many years she had already put up with it. After the Accident her low back pain (which radiated from low back down the back of her left leg) was the most prominent symptom, but it steadily improved until it reached a moderate state. The new post-Accident ankle pain was initially overshadowed by the more severe low back pain but had since become extremely severe in 2010, followed a wax and wane course in 2010 / 2011, and remained severe (albeit with slight improvement after the reconstruction surgery) in 2012, and there was development of post‑operation numbness of left sole in the region proximal to the inner 3 toes. P claimed to be able to walk for 15 minutes on level surface and up a slope or stairs but had difficulty walking down. She could not run, had difficulty getting up from bed, and could not carry heavy objects. 124.P told the Psy Experts her mood became increasingly depressed when acute new pain / disabilities dragged on despite treatment / surgery.[52] P said she could not stand and work for long time. P also experienced auditory[53] and visual[54] hallucinations related to the theme of self-harm and self-denigration. P blamed TKOH OTD doctors for missing her Rupture (until she had the 2010 MRI) with delayed treatment, but she did not appear hopeless and was still able to carry out ADL. 125.MAB According to Form 7 dated 2 January 2013 for “[injury] resulting in (i) low back pain and left sciatica (ii) left foot pain and numbness (iii) three toes of left foot weakness (iv) psychiatric impairment”, P’s sick leave was from 10-24 and 27-31 October 2009, 2-28 November 2009 and 30 November 2009 to 9 October 2012, and her loss of earning capacity permanently caused by the injury was 7%. P was re‑assessed, and according to Form 9 dated 31 July 2013 for “back injury resulting in (i) left sciatica (ii) back stiffness and pain, (iii) lower limb numbness, (iv) three toes weakness (v) psychiatric impairment”, P’s sick leave remained the same but her loss of earning capacity increased to 16%. 126.Pregnancy P married in 2014 and became pregnant. P felt less pain in her back because, according to her doctor, her pregnancy caused her pelvis to loosen. But as she put on weight (she weighed 150 odd pounds just before she gave birth), it put pressure on her left leg, so her back / left foot became increasingly painful. P claimed she gave birth in September 2015 by caesarean section under general anaesthesia rather than epidural injection due to back pain, and afterwards her back was as painful as it was before her pregnancy: “...... 而家就係條腰覺得都痛囉，隻腳喺未生之前都已經開始 ...... 個感覺神經覺得好有問題囉，...... 生之後 ...... 就今年照磁力共振，跟住再要去做啲test，究竟睇下嗰個腳有咩嘢問題”, “...... 隻腳係因為陀完仔加咗重量定係點，隻腳係比以前就再差咗啲，嗰個感覺神經係更差嘅”. (j) Pain, suffering and loss of amenities (“PSLA”) 127.Back P’s low back pain was caused by soft tissue contusion injury with no structural damage or significant neurology. I accept that at the beginning there were painful symptoms (partially controlled by analgesics) with limited ROM and some loss of lordosis of the spine, and as a result P had poor sitting tolerance although she could still walk despite her back pain. By end of October 2009, P’s back condition showed signs of improvement with reasonable ROM, normal SLR and normal lower limb power, but there were some signs of left leg pain, weakness and numbness. Even though P claimed there was no further marked improvement despite treatment from various sources, her back condition was not too severe. Dr Ko opined P’s back / leg condition had become static or reached MMI by March / April 2010 when MAB assessment was scheduled. By August 2010, P’s back / left leg condition was overtaken by her left foot pain. By September 2010, her back / left leg pain slowly subsided.[55] In December 2011, P told the Ortho Experts she had continuous low back pain worse on left side (3-5/10) aggravated when sitting on hard chair, standing for 5 minutes (increase of low back pain), lying supine, and performing truncal movements. But by November 2012, P was able to confirm to the Psy Experts her back pain had improved over time to reach a stable and moderate state. 128.I find on balance that after some time P’s residual back pain became stable and mild. MRI lumbar spine in February 2010 was essentially normal, SLR was full bilaterally, and there were no objective signs of genuine sciatica, PID or motor / sensitive deficit related to lumbar spine involvement. No significant muscle wasting over P’s left lower limb meant P was still able to bear weight as usual over her left leg. Positive Waddell’s signs appeared to be features of inorganic elements / causes, but I am not persuaded they reflected significant exaggeration since P herself recognised her back condition was stable and moderate. In 2014-2015, P took up part-time clerical work for 4 hours a day and was able to drive herself to / from work (see paragraphs 147 below). P required back support when she gave evidence for 2 days. Although P claimed her low back was painful on the 1st day and her neck / shoulders were tight on the 2nd day, I note she had reasonable truncal movement since she was able to turn on the swivel chair to pick up a file from a mobile rack 22” behind to her right. On balance, I find injury to P’s back caused residual ache / discomfort that were stable and moderate, and some limitation to her standing / sitting tolerance, but I am unconvinced her neck ache and shoulder tightness were caused by the Accident 129.Left foot After the Accident P had a bit more pain in her left foot than her usual pre-existing ache. There was flare up of foot pain on 16 November 2009 due to P’s Rupture, but it went unnoticed by her treating doctors until the 2010 MRI was available. In the meantime, she continued to have left foot pain, and by December 2009 her gait became slow and mildly antalgic, which indicated there was pain with weight-bearing. There was also limitation in walking tolerance. By April 2010, P was more worried about her persistent ankle pain and imbalance rather than her back pain. When the Rupture was discovered in June 2010, P’s left ankle had become quite painful, especially when she walked on the staircase. By August 2010, P’s left ankle pain with limited walking tolerance became her main problem. By September 2010, P had a limping gait, and her left ankle was persistently painful with some weakness. The situation deteriorated until she had to use a crutch for walking by January 2011. An AFO was made for P although she did not use it. In April 2011, axonal neuropathy over left tibial nerve was identified. After reconstruction surgery in September 2011, there was operation-related dysfunction of distal posterior tibial nerve with weakened power and nerve numbness. By December 2011, P complained to the Ortho Experts she could not move her left toes well, and there was weakness in her left foot, numbness / parathaesia involving the left postero-medial ankle and left foot arch plantar surface, and pain in left ankle involving left medial ankle and left under-surface especially in the heel area (but there was also mild pre-existing medial foot pain). P said “因為[P]而家已經係做到手術之後都會有啲問題，就冇咗感覺呀，同埋嗰個痛症呀係--即係都--其他位都會有囉，例如好似腳板底條筋係會扯住咁樣痛嘅”.As P told the Psy Experts, her left ankle pain became worse in 2010 / 2011. 130.But gradually P was able to take public transport and to resume most ADL and self-care activities except (according to Dr Tio) prolonged walking / standing for over 1-2 hours and heavy manual exertion. Dr Tio agreed there was no major difference or deterioration in walking tolerance after the tendon reconstruction operation, and P herself agreed her left ankle pain improved slightly after the reconstruction operation and she could walk in normal gait by November 2012. Indeed, P could walk to witness stand without walking stick. But she claimed to have difficulty in negotiating slopes, running, getting up from bed or carrying heavy objects. I have found the Accident contributed to ⅓ of P’s left foot condition / disabilities, but even without the Accident P’s long-standing PTTD would have reached its final pathway of Rupture by 2022 when the reconstruction operation that P underwent (and which Dr Tio said was standard and appropriate) would have been required. In short, P would have experienced the same sequelae / disabilities that she currently suffers. 131.Depression The Psy Experts agreed P suffered depression as a result of the Accident but disagreed on its severity. Dr Cheung’s diagnosis was severe depressive episode (lasting more than 2 weeks) with psychotic symptoms.[56] Dr Singer acknowledged P experienced stressors (ie the Accident followed by stressful aftermath) and spoke of improvement (eg in respect of her back pain), but considered her complaints of depressed mood and associated symptoms (eg crying spells, loss of interest in activities and impairment of sleep), hearing “voices” and seeing “visions”, and consequent physical injuries / symptoms only reflected a mild depressive episode. 132.On balance I prefer Dr Cheung’s diagnosis. As Dr Cheung opined, P’s psychiatric symptoms appeared consistent / genuine, and I find the onset / development of depression were supported by her physical symptoms / disabilities. Even Dr Singer recognised P had a core of genuine symptoms caused by back sprain from the Accident and PTT pathology (which I have found to be ⅔ pre-existing) that the reconstruction surgery failed to fully correct. I am not confident about Dr Singer’s suggestion of exaggeration of psychiatric symptoms that largely rested on Dr Ko’s opinion as to the mildness of physical lesions from the Accident, as I have found P did not significantly exaggerate her physical symptoms. Despite Dr Singer’s opinion otherwise,[57] I find P did have delusions and hallucinations of “voices” / “visions” (which psychotic features Dr Chan also noted). I also disagree P’s depressive condition was attributable to any childhood gripe against her pre-existing foot problem, and I have found she had overcome any disappointment by accepting such condition as part of her life. 133.But with improvement in P’s back condition and with psychiatric treatment by YFSPC and Dr Chan, I accept P’s depressive condition had improved to a moderate state. Indeed, P presented with almost normal mood when examined by the Psy Experts, and she appeared euthymic when she gave evidence about the Accident and its impact on her. I accept Dr Cheung’s opinion that P’s psychiatric prognosis would depend on the prognosis of her physical symptoms. P subjectively attributed 40% and 60% of her depression to her back pain and ankle pain respectively, so Dr Cheung opined 60% (ie 40% + 60% x ⅓ based on Dr Tio’s views) of P’s depression was attributable to the Accident. But since the effect of the Accident on P’s left foot would have been spent by 2022, P’s depressive condition attributable to her left foot pathology attributable to the Accident would also be spent by then. 134.PSLA Although P claimed that after the Accident she could not wear shoes with mid-heels, there was no more cycling due to left ankle pain, and she only swam occasionally as she was not in the mood, Dr Tio agreed such activities should only be mildly affected by residual pain over back and left ankle. P had stopped all drinking, but started smoking 6-7 cigarettes a day. Dr Ko assessed P’s whole person impairment (“WPI”) for residual back pain and stiffness to be 1%. Dr Tio’s assessment was 3½%, ie 2% for back injury and 4½% for left ankle problem of which ⅓ was due to the Accident. Dr Cheung opined P’s WPI contributed by her psychiatric condition that was attributable to the Accident would be 4.2% whilst Dr Singer opined it would be 1-3.5%. 135.P claimed general damages for PSLA in the region of $500,000.[58] D2 / D3 suggested that if P’s ankle problem was not caused by the Accident, PSLA should not exceed $200,000.[59] Taking into account P’s reasonable rehabilitation, her mild residual condition, her symptoms and disabilities, her treatment history, the Ortho and Psy Experts’ opinion, but noting the impact of P’s pre-existing left foot pathology (ie PTTD and its natural progression that would lead to eventual Rupture), the appropriate award for PSLA is $300,000. In coming to this conclusion, I have also considered the authorities cited by Mr Lim.[60] (k) Pre-Accident work 136.Full-time job P worked for D1 from 2006 to 2008, and thereafter for several other companies[61] before re-joining D1 as property officer in July 2009. Her work hours were from 9:00am to 6:00pm for 5½ days / week. She had to regularly inspect the Kln Buildings, attend management meetings, prepare documents such as meeting minutes and residents’ notices, take telephone call and resolve problems raised by caretakers and / or complaints by building owners of the D1 Buildings. She also had to be on call after work hours to deal with property management issues or to reschedule meetings etc. 137.As explained above, P handled a portfolio of 10 odd Kln Buildings, but her P’s telephone number was left at the caretaker counter (座頭) of all D1 Buildings, so all IOs / caretakers could call her for help. For the Kln Buildings, P carried out regular day / evening inspections to satisfy licence requirements, and made ad hoc visits to deal with on-site property management issues. During regular inspections, P would conduct sample check of “巡樓簿” at different floors and sign the logbook kept at the caretaker counter (座頭). Back at A8 P had to deal with documentation, eg notices to residents, meeting papers / minutes and shift duty roster for caretakers. She frequently had to attend property management meetings (usually held in the evening). Although there was no manual work, sometimes P had to carry papers, board, logbooks etc (which could be bulky and heavy) for distribution at the Kln Buildings. Ng being less experienced had to consult P (if Yu was out of the office) on how to handle property management matters, but P could handle such matters herself without briefing Yu. 138.P in her witness statement dated 28 November 2012 and in her Re-Revised Statement of Damages filed on 20 March 2013 claimed her monthly income from her full-time job with D1 was $9,000, and Mr Lin’s opening submissions adopted such sum as P’s pre-Accident monthly earnings for her employment with D1. Although P’s statement evidence referred to travelling / overtime allowances etc, there was no mention of their amounts. Further, section F of Form 2 stated P’s monthly earnings for the month immediately preceding the date of the Accident was $9,000, and P’s average monthly earnings for the past total period of employment (if less than 12 months) preceding the Accident were $8,000. Since P did not fill out section F, it must have been completed by Yu for D1. Even though Yu / D1 submitted an Information Amendment Sheet dated 28 November 2009, no changes were made to section F of Form 2. The above suggested P’s all-inclusive monthly income from working for D1 was $9,000. 139.But P gave evidence that in addition to her monthly basic salary of $9,000 she was entitled to allowance for (a) attending property management meetings in the evening and preparing corresponding meeting minutes at $100-$120 per meeting, and (b) making evening inspections of buildings within her portfolio at $100 per visit.[62] P claimed that since July 2009 there were on average 11-13 such meetings / visits per month, so her additional monthly allowance was $1,000-$1,300. Mr Lin suggested that adverse inference should be drawn against D2 / D3 in failing to call Yu to contradict P’s testimony. I disagree as Yu was not their witness. Further, I am not persuaded by P’s evidence. Information in section F of Form 2 clearly showed that P’s basic monthly salary was less than $9,000 (otherwise the average monthly earnings in the period before the Accident would not have been $8,000). I find on balance that P’s pre-Accident monthly earnings for her employment with D1 were $9,000 that included meeting / evening visit allowances (if any). It explained why P did not specify any sum above $9,000 in her statement evidence and pleadings. 140.Part-time job P claimed her secondary school classmate Apple Sze(“Sze”) used to do part-time book-keeping for “Connie” of a small logistics company called “金星物流”, and introduced P to take up such work, which she did for about 5 months from 20 May 2009 to 10 October 2009 for $2,500 / month (paid in cash). It was a simple arrangement for some freelance clerical work done in P’s weekend spare time at home. In the middle of each month “Connie” would meet P at an MTR station to collect P’s completed work and give P fresh work, ie a bundle of “金星物流” papers.[63] P’s work (which would take at least 30 hours each month or 6 hours each weekend) was to sort such papers, put the papers for each day in an envelope, then put all of them in a manila folder, and prepare excel lists of expenses / income based on such papers. P knew “Connie” needed such work to be done regularly on monthly basis. As P was in serious pain when she woke up on 10 October 2009, she called to tell Sze and “Connie” before she went to PMH AED. P told “Connie” she could not handle the work for the coming month, but “Connie” said “咁就唔好做喇” so P “resigned” (but it was more like mutual arrangement and P asked Connie to turn to Sze for help). P asked her boyfriend to return the sorted papers for the previous month to “Connie” who gave cash for her work. 141.I find P’s willingness to give up her part-time work even before she attended PMH AED and / or knew her prognosis unsurprising. To finish her monthly work P had to work 6 hours each weekend, but P was in such pain on 10 October 2009 that she could not hope to work that weekend, so she must have known there would be difficulty in completing her work for the coming month. On balance, I accept P did have this part-time book-keeping job. The work was simple but tedious, and one could see why a small logistics company would farm out such work to a freelance clerk. I further accept P did not find out more about “金星物流” because she got this part-time job through Sze and she worked at home. Mr Wong questioned why P told the Ortho / Psy Experts about how her injuries affected her sports / hobbies but not her part-time work. But P was specifically asked about her recreational activities, and although she was also asked about her pre-Accident work, I accept on balance P thought they meant her employment with D1 (ie the work she was doing at the time of the Accident), and she did not realise she had to account for what she did during her private time, which part-time work had ended by the time she was interviewed by the Ortho / Psy Experts. 142.P had not reported income of such part-time work in her tax return for 2009 / 2010. I find on balance this was because such income was received in cash which P regarded as having been earned on the side in her spare time over weekend. I also bear in mind Sze did not tell P she had to include such earnings in her tax return, and “Connie” / “金星物流” also did not remind her to file tax return (presumably by providing her with a copy of the employer’s return). 143.P’s earnings On balance, I find P’s average monthly earnings at the time of the Accident were about $11,500 ($9,000 + $2,500). The earnings record of a comparable worker at D1 showed that by the time of trial P’s notional monthly earnings for her full-time job would have increased to about $13,500 and her total notional monthly earnings would have increased to $16,000. P’s median notional monthly earnings in the pre-trial period would have been ($11,500 + $16,000) ÷ 2 = $13,750. (l) Post-Accident work 144.P claimed she tried to look for work after expiry of her sick leave to no avail. In 2011, P helped the mother of her boyfriend (now husband) to run pet shop on half-day basis, but ceased in December (probably in 2011 but P was not sure) due to insomnia and poor / unstable mood. She was hospitalised at the Psy Dept of Kowloon Hospital, and returned to her maiden family for convalescence upon discharge. The pet shop ceased business shortly thereafter. 145.In September 2013, P returned to work for D1 as part-time property officer for $1,000-$2,000 / month. The clerical duties required P to concentrate and sit for 2-3 hours at a stretch to read papers and to prepare minutes, but at that time she could not do so due to back pain. By January 2014 her work performance was so affected that there was not enough suitable work for her, so her income dwindled and she had no alternative but to resign. 146.Since 15 April 2014 P worked as a part-time clerk for a debt collection company Charm Forever Limited for about 4 hours / day at $4,500 / month. But P found the work environment too complicated, so she resigned on 9 May 2014. Thereafter, P applied for clerical jobs to no avail, so she enrolled for “美甲師基礎證書課程” by the Employees Retraining Board for possible change of career in future. 147.P was bored after her marriage in 2014, so since November 2014 she took up part-time clerical work (eg typing quotations, issuing invoices, “交下錢呀，做下文件呀，跟住看住間鋪仔呀咁樣 ......”) for 4 hours / day. She had no problem in using a seat support and driving a Toyota Ractis between her home in Tsing Yi and her employer’s small ground floor office in Kwun Tong (each one-way trip took 20-25 minutes). P was paid on hourly rate basis, and earned about $2,000-$3,000 each month. At first P worked 5 days / week which was reduced to alternate days, and she took days off when she did not feel well. P resigned in mid-April 2015 when she was 5 months’ pregnant. She earned a total sum of $14,000 during such period. P was unemployed at the time of trial, and she felt she could only handle part-time clerical work for 2-3 hours / day due to limited sitting and standing tolerance. (m) Pre-trial loss of earnings and loss of MPF contribution 148.Sick leave P was granted 39 months’ sick leave (10 October 2009 to 5 January 2013) initially for her back problem and later for her back, left foot and psychiatric problems, and she agreed she should have returned to work 2 months after expiry of such period. However, Mr Wong argued P should be allowed only 13.3 months’ sick leave (ie up to 16 November 2010) for her back / psychiatric problems and another 2.7 months to look for alternative employment, but such submission ignored P’s left foot disabilities that were ⅓ attributable to the Accident. 149.The starting point is Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[64] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. However, the end of sick leave as a result of static or MMI state on the basis that no further active or therapeutic treatment will be of assistance does not necessarily mean the patient has made full recovery or can immediately return to pre-Accident work or other gainful employment. It is a matter of assessment and degree. 150.Dr Tio[65] and Dr Cheung considered the sick leave period as granted to be reasonable and appropriate. Dr Ko only endorsed sick leave of 6 months for back sprain / contusion injury. I disagree with Dr Ko’s view. Even though there were hints that P’s back / left leg condition had become static or had reached MMI by April 2010, P still had residual back pain for some time before it gradually turned stable and moderate. I find reasonable sick leave would be 12 months from the date of the Accident. By that time, P’s residual back condition was overtaken by her left foot pain with Rupture discovered in June 2010 and consequent reconstruction operation done in September 2011 (which required convalescence and rehabilitation and led to post-operative nerve numbness that affected the underfoot and toes), so P’s left foot condition would require longer sick leave. P’s sick leave until 5 January 2013 (ie 39 months – 12 months = 27 months) was not unreasonable but should be discounted by ⅔ as being attributable to her pre-existing left foot condition (ie 27 months x ⅔ = 18 months). Thus, reasonable sick leave attributable to the Accident would be 12 months + (27 months – 18 months) = 21 months. I am prepared to allow P another 2 months for adjustment and to find work (ie up to 23 months). 151.Apart from Dr Chan who granted psychiatric sick leave from 27 April to 16 November 2010, YFSPC did not grant any sick leave for P. I disagree with Dr Singer that P would not require psychiatric sick leave given her genuine psychiatric condition / symptoms, but find there was no practical purpose in granting psychiatric sick leave since P was already on orthopaedic sick leave for 39 months after the Accident. But since P’s mental symptoms depended on her physical symptoms, P’s psychiatric sick leave would have been co-extensive with her orthopaedic sick leave. Thus, in relation to her Accident-related injuries / disabilities, P should have returned to some form of gainful employment 23 months after the Accident. 152.Notional post-Accident work P did not resume full-time employment but conceded she should have been able to find lighter and more sedentary work to accommodate her back and foot pain at, say, $6,500 / month after expiry of sick leave. P claimed she would suffer future partial loss of earnings,[66] or alternatively her condition due to her disabilities would have caused her earning ability to be reduced by a portion even after the sick leave period had expired affecting the whole pre-trial period and a limited post-trial period.[67] 153.Drs Ko and Singer opined P’s back condition should allow her to resume work as property officer without any impairment of her work efficiency and effectiveness, and she would be psychiatrically able to cope with such work. But Dr Tio opined P could resume duty as property officer with reduced efficiency such as pain over her back and left ankle aggravated by prolonged walking of over 1-2 hours or physical exertion etc. Dr Cheung also opined it may be difficult for P to resume such work in view of her combined physical and mental symptoms, but she could take up jobs that would not require prolonged walking / standing, or long working hours and concentration. 154.Mr Wong argued Dr Cheung’s opinion that rested on P’s orthopaedic sequelae was outside his remit as a psychiatric expert, but in any event P’s mild physical lesions would not have prevented her from working as property officer. Mr Wong suggested P could walk for an hour or walk quickly with her mild back condition, and the left ankle injury should have minimal effect after expiry of her sick leave. Mr Wong reminded that P’s pre-Accident walking tolerance was not significantly different from P’s condition after the reconstruction surgery in 2011, and by 2014 / 2015 P could drive herself to work and handle part-time clerical work. D2 / D3 therefore suggested P’s failure to return to work was her own choice, and there should be no loss of earnings or loss of earning capacity after expiry of reasonable sick leave. On the other hand, P claimed she still suffered back pain, left ankle pain and depressive illness, and could not handle full-time work as property officer and/or part-time book-keeping work. P said she could not resume full-time work even at trial due to back and foot pain, but she agreed she could manage part-time clerical work a few hours a day. 155.In my view, P would not be able to return to pre-Accident work as property officer even on her left foot disabilities alone. Even though walking tolerance might not be significantly affected, P’s left foot was painful on the underside with numbness of the toes (which was in worse state than before the Accident). Further, PTT discontinuity left P’s left foot in a weaker state as it would strain other medial structures / ligaments and the heel. But a property officer would require a fair amount of non-sedentary work out of the office, and she would have to deal with property management issues as and when they arose (eg to make ad hoc visits to the Kln Buildings) irrespective whether she had pain in her left ankle or numbness of the toes etc. I find she would have difficulty in descending slopes / staircase, and in carrying weight (eg notices, minutes, logbooks, boards etc for distribution to the Kln Buildings). The above difficulties would be enhanced by the fact P had to work long hours (eg building inspections and / or property management meetings in the evening). So quite irrespective of P’s back condition, P would not have been able to return to her pre-Accident work as a property officer. 156.I accept P could have (as she conceded) returned to part‑time clerical work earning $6,500 / month. The more sedentary nature of work suited her foot problem. Neither P nor D2 / D3 had any alternative case that she could have returned to full-time work as general office clerk with fairly little loss of income.[68] Anyway, I find on balance that even for P’s left foot disabilities alone she would have difficulty to manage any full‑time clerical work and / or her part-time book-keeping work. Although such work was more sedentary in nature, it would have required long hours in a sitting position to handle clerical or book-keeping duties, and keeping a painful foot with numbness underfoot and in the toes in a similar posture for hours would not be easy or even possibly unwise given P’s previous psychiatric reactions to her foot disabilities. I note P emphasised the more prominent problem that adversely affected her general well-being was her left foot condition. 157.Turning to her back problem, P frankly accepted the residual back pain was moderate, but it did not mean she could sit for long hours. I find on balance P would have difficulty in working as property officer as such work required her to spend considerable time doing deskwork eg preparing notices / minutes, shift duty roster, etc, or in taking up part-time book-keeping work that would require her to work with documents / computer for 6 hours each weekend (mainly on Saturday so as to allow time for relaxation and leisure on Sunday). 158.That said, I have found only ⅓ of P’s left foot disabilities were attributable to the Accident, and had the Accident not happened, P’s PTTD would have run its natural course to reach the final pathway of Rupture with similar sequelae by 2022, so in any event P would have to retire early as property officer (with fair amount of walking for inspection of buildings and ad hoc visits, and some weight-carrying for papers and boards) and give up on her part-time work (with fairly long hours over the weekend in single posture to deal with documents). P conceded she could take up part-time clerical work, and she worked as such from November 2014 until May 2015 when she was 5 months’ pregnant and she could drive herself to work. On a broad-brush basis, based on P’s subjective consideration, I find on balance 40% and 60% of P’s overall disabilities were respectively attributable to her back and left foot pain / condition, so 60% (ie 40% + 60% x ⅓) loss of earnings would be attributable to the Accident prior to 2022. But even without the Accident, P by reason of her pre-existing PTTD and left foot condition would not have been able to continue with her pre-Accident full-time and / or part-time work after 2022, and would only have been able to work as part-time general clerk which work P acknowledged she could handle, so there would no further loss of earnings. 159.On balance, I find that in the pre-trial period P suffered full loss of earnings and MPF contribution for 23 months until 7 September 2011 in the sum of $13,750 x 23 months x 1.05 = $332,062.50, and partial loss of earnings and MPF contribution for 51 months from 8 September 2011 to 7 December 2015 in the sum of ($13,750 - $6,500) x 51 months x 60% x 1.05 = $232,942.50, totalling $565,005. (n) Post-trial loss of earnings and loss of MPF contribution 160.As explained in paragraph 158 above, I find P would not suffer further loss of earnings as a result of the Accident after 2022. So P’s future loss of earnings from 8 December 2015 to 31 December 2022 (ie 84¾ months) would be ($16,000 - $6,500) x 84¾ months x 60% x 1.05 = $507,228.75. (o) Loss of earning capacity 161.I agree P will be less competitive than comparable workers who are able-bodied (as she would have residual back pain and reduced inefficiency) should she be thrown into the labour market, and she would probably need a longer time before she could find herself suitable employment in the open market.[69] I disagree that P’s unimpressive academic results would limit her employment opportunities. Even P said she would have no problem in handling usual clerical duties, and her ability to work as a property officer since she was 19 would demonstrate to any prospective employer her clerical abilities despite any less than gratifying public examination results. I find P’s claim for $200,000 (ie equivalent of 30.8 months of earnings for her notional post-Accident job) excessive. Mr Lin referred me authorities that allowed an award on the basis of 6 months of earnings[70] or 2 weeks to a month every year over 15 years,[71] but each case turns on its own facts. I bear in mind the period in which P would be at risk of being thrown into the labour market would only be up to 2022 and part of such risk was attributable to her pre-existing condition. I agree with Mr Wong’s suggestion of $50,000 for this head of claim. (p) Incurred medical expenses 162.P claimed a sum of $106,028 for incurred medical expenses (ie for hospitalisation, follow-up and Chinese medical treatment). Mr Wong submitted the following should not be allowed: (a) hospitalisation fees after April 2010,[72] (b) follow-up fees after November 2010,[73] and (c) other medical expenses (Chinese medical treatment) after 18 October 2010,[74] so medical expenses should be $15,473 + $30,990 + $6,910 = $53,373. I disagree as P was entitled to reasonable medical expenses for her back, left foot and psychiatric conditions except ⅔ of such expenses for her left foot condition would not be attributable to the Accident. Taking a broad-brush and sensible approach, and taking into account that in respect of P’s physical lesions the initial focus was on P’s back with subsequent shift to her left foot, I allow $75,000 under this head of claim. (q) Travelling expenses 163.P pleaded a claim for travelling expenses in the sum of $10,000, but Mr Lin’s closing submissions put it at $1,241. It appeared the sum of $1,241 only referred to receipted taxi expenses from 30 August 2011 to 16 April 2013, but failed to include travelling expenses for other modes of transport for seeking treatment over the years. Although Mr Wong asked me to reject the claim for taxi fares, I note D2 / D3 in fact conceded a sum of $5,000. I see no reason why P should not be entitled to reasonable travelling expenses for treatment (subject to discount for pre‑existing left foot condition), and I allow $3,000 for such claim. (r) Future medical treatment 164.Dr Cheung said P would require maintenance psychiatric treatment at monthly intervals without saying how long it would take. Dr Singer opined P’s psychiatric treatment should be tailed off over a period of 6 months after end of litigation. The trial took place 3 years after P’s examination by the Psy Experts. Since then P got married, returned to some part-time work (which ceased when she was 5 months pregnant) and gave birth to her baby. P did not demonstrate poor spirits when she gave evidence over 2 days. I accept Dr Singer’s opinion as to the duration of future psychiatric treatment, and reject P’s claim for further psychiatric treatment for 10 years as pleaded or 5 years as Mr Lin suggested in oral final submissions. Even though public psychiatric service had been helpful, I accept Dr Chan’s intensive psychiatric treatment had been useful in putting P on the road to psychiatric recovery. It would be reasonable to allow private psychiatrist to tail off P’s psychiatric treatment. Dr Cheung said it cost about $700-$1,000 per session plus drug charges of several hundred dollars (say, $500 each time). On the basis of monthly sessions, Dr Singer gave a more generous estimate of $18,000 for 6 months. 165.For P’s orthopaedic disabilities, the Ortho Experts agreed that P had reached MMI and no further active treatment is required. Mr Lin submitted P should be allowed $1,500 / quarter or $6,000 / year for 10 years (written submissions) or 5 years (oral submissions) for orthopaedic follow-up and analgesics for pain-relief. P gave evidence she still attended orthopaedic GOPD and SOPD. Using the 1st half year of 2013 (from 8 January to 7 July 2013) in the agreed schedule of medical expenses as reference, the expenses for orthopaedic follow-up and ad hoc AED attendances were $500. Bearing in mind that P’s back condition was mild, I am prepared to allow another 5 years of orthopaedic medical expenses for monitoring and pain-relief at $1,000 / year. 166.D2 / D3 suggested no more than $10,000 should be allowed for future medical expenses. In my view, the future medical expenses had to reflect appropriate discount for P’s pre-existing left foot condition, so the sum of [$18,000 + ($1,000 x 5 years)] x 60% = $13,800 is allowed as being attributable to the Accident. (s) Summary 167.I summarise the above awards as follows:
V. CONCLUSION 168.I therefore grant judgment in favour of P against D2 and D3 in the sum of $1,017,545.35. Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment. I dismiss P’s claim against D1, and consequently also dismiss D1’s claim against D2 and D3 in the contribution proceedings. 169.I also grant the following order costs order nisi: (a) D2 and D3 shall pay P’s costs of the main action against them (including all costs reserved if any) to be taxed if not agreed, (b) P shall pay D1’s costs of the main action against it (including all costs reserved if any) to be taxed if not agreed,[75] (c) there be no order as to costs as between D1 on one part and D2 and D3 on the other part in the contribution proceedings, and (d) P’s own costs be taxed in accordance with Legal Aid Regulations.
Ms Kenny Lin, instructed by B Mak & Co, for the plaintiff Mr Patrick Lim, instructed by Leung & Lau, for the 1st defendant Mr Wong Chi Kwong, instructed by S H Leung & Co, for the 2nd and 3rd defendants
[1] (a) failing to heed D3’s oral warnings and walking across the wet Floor, (b) failing to use the alternative Forward Route, (c) walking too fast and conversing with Ng, (d) failing to keep any or any proper lookout or to have any sufficient regard for the Floor condition, (e) failing to observe / heed (or avoid stepping on) the wet / slippery Floor where P slipped and fell, (f) failing to take care where she placed her feet or to take reasonable precautions / care for her own safety, and (g) failing to sufficiently keep her foothold / balance thereby stumbling, slipping or over-balancing so as to fall and injure herself [2] see Star Glory Investment Ltd v Kai Tuo (H.K.) Technology Co Ltd & ors HCA3523/2002 (unreported, 13 August 2005) para 12, Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494, Lam Sou Fung Rogerio v Tan Soon Gin George HCA2576/2005, Chu J (as she then was) (unreported, 5 May 2011) paras 39-40, and Hua Tyan Development Ltd v Zurich Insurance Co Ltd [2012] 4 HKLRD 827, 835 [3] see Cheung Wai Mei v Excelsior Hotel (Hong Kong) Ltd trading as The Excelsior CACV38/2000 (unreported, 22 November 2000) paras 22-24 and So Wang Chun v Rainforce Ltd & ors HCPI64/2006, Sakhrani J (unreported, 9 January 2008) paras 15-17 [4] P claimed (a) a film of wetness (rather than any patch of water (“一灘水”) or other slippery substance) made the Floor at that spot wet and slippery but P could not feel it with her shod feet, (b) such wetness was not visible on the shiny and smooth (光滑) white Tiles that reflected the bright lighting (反曬光), (c) P was not alerted to beware of wet Floor as there were no Signs about, (d) no one was present to give any verbal warning to beware of wet floor, and (e) P would not have walked / chatted with Ng when she was on her way to attend the Meeting [5] D3 said “當時即係[D3]望向[P]嗰個地拖拖緊地，就擺喺原地個方向度喇，即係[D3] ...... 開頭對住[A2]個方向，即係因為[D3]個身轉咗，地拖仲係隻手揸住，...... 就停低咗响個 ...... 走廊嗰個中間嗰啲位置喇” [6] “一個腳一踏出去，跟住咁樣扭一扭，失咗重心，因為𨃩，扭一扭，跟住咁樣拗一拗，跟住之後就成個咁樣向上升一升，即係個身係感覺到離一離，跟住咁樣坐咗落地下，個pat pat，跟住隻手就咁樣撐住 ...... 扭少少，向前𨃩一𨃩再將腳升起，再跌咗落地下 ......” [7] “响門口出嚟，轉彎，行兩步，一踩落去扭一扭「霎」一聲向咗前。 ......左腳向前踏咗，跟住咁樣拗一拗，...... 跟住之後就左腳升起，跟住右腳又升起少少，左腳就升起高啲嘅，右腳就升起低啲嘅，跟住就成個坐咗落地下，pat pat落地下，跟住個人挨後，手踭兩個一齊落埋地下” [8] such view was consistent with P’s evidence under re-examination that: “......嗰個因為高踭鞋嚟㗎嘛，...... 唔係好似而家波鞋吖嘛，咁你踩落去嘅時候就大約係側邊呢啲位置，...... 嗰個踭亦都唔係全踭喇，咁嗰個側邊呢邊嘅位置就落啲嘅，即係咁樣多啲嘅覺得，係所以就咁樣有少少偏側咗，有少少類似拗柴咁嘅--咁嘅--咁嘅感覺嘅，咁之後就向前𨃩喇，......”, “呢個有感覺，係踏空咁樣「sir」咁樣，...... 即係大家都跌過，知道嗰種感覺，即係總之就係有啲失平衡，...... 成個有啲凌空嘅感覺嘅，即係其實嗰度都有啲--有少少離心力咁囉，......”, “...... 跟住成個「boom」一聲飛起咗，就係咁樣喇” (my emphasis) [9] ie “...... 跟住就入𨋢，...... 大家咬耳仔咁樣講，就係話「有冇搞錯呀，咁痛呀」，咁即係「搞錯呀，咁濕呀，又冇牌又冇『盛』咁樣。」咁 ...... [P]咪話「有冇搞錯呀，又唔講又唔『盛』咁樣，整到濕晒，又跟住整到我跌親呀咁。」即係自己好無奈咁同[Yu]呻緊嘅，咁你話詳細對話呢，其實[P]就梗係唔記得喇 ...... 係喇，[Yu]就話「欸，其實我都爭啲𨃩親嘅。」咁樣囉，[Yu]話「個地係濕濕地嘅真係」” (my emphasis) [10] see Li Sau Keung v Maxcredit Engineering Ltd & anor [2004] 1 HKC 434, 443-444, DBS Bank (Hong Kong) Limited v Sit Pan Jit HCA382/2009 (unreported, 2 April 2015) paras 33-35 and Tjang Siu Thu v Profield Construction Engineering Limited & anor CACV156/2013 (unreported, 27 May 2015) para 33 [11] see Charlesworth & Percy on Negligence 12th ed paras 6-21 – 6-24 at pp 414-415 [12] see Yu Wai Kan v Law Cho Tai HCI62/2010 (unreported, 11 May 2011) para 71(d) and Tam Wai Tuen v Seiko Screw Manufactory Limited HCPI383/2008, Recorder B Yu SC (unreported, 18 December 2009) para 36 [13] Mr Lim posed the possibility that he / she could have cleaned the Floor with a wet mop, a dry broom, a vacuum cleaner or a combination of those methods [14] see Larner v British Steel plc [1993] 4 All ER 102, 111 (see also Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107) [15] [2011] 4 All ER 223 [16] [2015] 4 HKC 28 [17] bare demonstration that a step could have been taken and that if taken might have some effect on the safety of a working environment does not, without more, demonstrate the employer has broken his statutory duty (p 38) (see Baiada Poultry Pty Ltd v The Queen (2012) CLR 92 at [15]) [18] “...... the obligations of a proprietor were to be considered in terms of the language of the Ordinance, and not as a reflex of the common law principles of negligence. The relevance of reasonable foreseeability, if it becomes an issue, will be to the question of the reasonable practicability of some measure to enhance safety. ...... the judge was correct in following existing Hong Kong authority, and declining to treat Baker as demonstrating the approach to be taken” (p 47) [19] [2010] 3 HKLRD 267, ie a delivery man slipped and fell when alighting from a lorry as a result of an oily or slippery patch / stain on the footrest, and the employer’s random inspections and generalised exhortations to keep vehicles clean were not sufficient discharge of its duty to keep its vehicles clean and safe “as far as reasonably practicable”, but they showed the employer was necessarily aware of the risk of injury as a result of dirty trucks (and the cleaning arrangements were within its control) [20] (2000) 3 HKCFAR 134, 139, ie the plaintiff was dismantling decorative lights of a building from a mobile ladder scaffold when he fell down but the risk of fall injury was reasonably foreseeable since it was a matter of common sense that one could not use safety belt when ascending or descending on the scaffold, but the contractor “responsible for the site” contracted with the sub-contractor by merely making some safety suggestions that did not amount to precautions that were “so far as is reasonably practicable” under regulation 38(A) of the Construction Sites (Safety) Regulations Cap 59I; nevertheless the facts showed (a) the risk of injury was reasonable foreseeable and (b) the contractor “responsible for the site” retained primary control and responsibility over activities at the site [21] HCPI64/2006, Sakrani J (unreported, 9 January 2008) in which the plaintiff was held to be 50% contributorily negligent in slipping and falling on a patch of water outside a restaurant whilst carrying 2 plastic bags, talking on the telephone and walking hurriedly, but in the present case P only carried pen and paper and walked at normal pace, and there was a thin film of wetness after mopping rather than a patch of water on the Tiles [22] CACV38/2000 (unreported, 22 November 2000) in which Rogers VP considered the plaintiff must have been at least 50% responsible because how “this accident occurred is only explicable if the plaintiff was indeed moving fast”, but here there was no evidence that P was moving fast at all [23] HCPI416/2005, DHCJ Wright (unreported, 18 May 2006) para 14 in which the plaintiff tripped over objects on the landing close to the top of the stairs, which items were a danger to users of the stairs, and fell down the stairs, and he was 50% liable for contributory negligence because he was familiar with the area and “[the] presence of the objects was apparent to him – as they must have been – but, as he conceded, having noticed their presence he paid no particular attention to them” [24] ANB pain is the result of ANB becoming prominent thereby causing friction between foot and shoe, and is usually associated with some flatfoot [25] such patients may learn about the Rupture from MRI or ultrasound examination and retrospectively think it is related to some past occurrence that they in fact cannot fully verify [26] see Lee Kin-kai, a patient by his father and next friend Li Wah v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232, 236 and Hung Sau Fung v Lai Ping Wai [2016] 1 HKLRD 106, 125 [27] see CMY v Tam Siu Wing [2008] 4 HKLRD 604, 612 and McGhee v National Coal Board [1973] 1 WLR 1, 6, 8 and 11 [28] there is a causal connection in law if it is shown on the balance of probabilities that the accident is a substantially contributing cause of the injury, but doctors practice the science of aetiology and look for “clinical cause” or “irrefragable chain of causation” which is to be proved beyond reasonable doubt or beyond any doubt (see Lee Kin-kai, a patient by his father and next friend Li Wah at pp.235-236, Lee Sau Keung v Maxcredit Engineering Ltd & anor [2004] 1 HKC 434, 450, and Ansar Mohammad v Global Legend Transportation Limited CACV 162/2010 (unreported, 24 March 2011) para.22(2)) [29] see paragraph 8 above and Robert Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283 paras 10-11 [30] see Robert Synclair at para 12 [31] ie the tortfeasor is only responsible for the extent to which he has worsened the victim’s condition [32] [1998] 2 HKLRD 958 [33] HCPI62/2010 (unreported, 11 May 2011) [34] P confirmed her left ankle “不嬲都有少少淵淵痛嘅” or “長期都會有少少好似唔係好舒服咁呢，有啲嘢頂住頂住咁樣囉，咁就即係普通嘅唔舒服囉，咁除非係即係長期做咗好多勞動性嘅嘢先會覺得好攰囉隻腳” [35] Dr Ko said either the Rupture had not happened or it had happened more than ½ year ago, so the acute symptoms had became quiescent and there was reasonable foot function [36] ie Rupture would show up in MRI or ultrasound scan but not in x-ray [37] for a normal individual that would include presentation of pain, swelling and bruising on the injured side within 1-2 days [38] ie conscious level, blood pressure and general well-being [39] Dr Tio opined that being able to walk stably did not rule out the possibility that P (with chronic foot pain) did experience pain in her left foot / ankle that day, and Dr Tio cited as example that he himself had a tear in his gastrocnemius muscle and was still able to walk stably into the courtroom [40] Dr Tio opined the power test was an inaccurate method to test whether P’s left ankle sustained an injury that was more serious than visible to the eyes because (a) the PTT (though in pain) might not affect the power of the foot to a very large extent, especially in view of P’s chronic left foot condition, and (b) different types of muscles could replace the function of PTT when the power of P’s left foot was tested [41] which might relate to the pain P was experiencing since low back injury at L4S1 could possibly affect ankle / foot / toes [42] P said whenever she attended AED, she would be asked whether she had any drug or food allergy and / or any chronic condition or operation, and she always replied she had no drug allergy but was allergic to shrimp / crab, and she also had chronic condition, ie left foot pain and left ankle excision operation [43] the AED notes recorded the consultation and disposal times as 4:53pm and 5:14pm respectively [44] P said she would not have omitted to mention her back pain because she attended PMH AED only 3 days ago for her back pain which had not resolved [45] eg the referral letter showed P’s treating doctor on 29 October 2009 was Dr Leung Hau-yee Heidi and not Dr Lo [46] including the observation in the report dated 31 August 2011 that P attended PMH AED on 10 October 2009 “for back injury without mentioned and left foot injury or pain ...... [P] was attended on 16/11/2009 for left foot pain without mentioned any history of injury” [47] ie from having a bit more pain than the usual ache to swelling and bruising with reported painful left foot especially when negotiating staircase (see paragraph 113 below) and painful left ankle with limited walking tolerance (see paragraph 114 below) [48] eg (a) gradual increase of left foot pain after ANB excision in July 2001, (b) tenderness and inflammatory swelling of her left foot in April 2008, and (c) sharp foot pain, swelling and bruising in November 2009 for which P sought medical treatment in December 2002, April 2008 and November 2009 respectively [49] but such bruising would not be too obvious or dramatic as PTT had poor blood supply and P’s ANB excision would have further compromised blood supply to PTT [50] the discrepancy might be due to subjective visual observation by the triage nurse and AED doctor [51] Dr Ko said the deltoid ligament on the medial side that protects the ankle is composed of the anterior tibiotalar, posterior tibiotalar and other ligaments, and the calcaneonavicular or spring ligament is on the underside of the foot [52] P’s symptoms included low mood with crying spells, loss of interest in normally pleasurable activities, poor sleep, suicidal thoughts without acting them out, slowing of movements, reduced sex with boyfriend, feeling of worthlessness, reduced concentration, and reduced memory [53] P would hear unknown voices day and night (more frequently at night when she was alone) referring to her in 2nd and 3rd person pronouns, telling her to die or to stab her painful foot with knife, or deriding she was useless and rubbish, and sometimes P would hear non-human voices (such as ambulance sirens, alarm bells or hand ringing bells) especially in medical settings like hospitals, and such auditory hallucinations (which diminished after P took psychiatric drugs) still occurred once every 3-4 days with each time lasting for minutes [54] P would see visions of catastrophic consequences of what she was doing eg P would see hot liquid she held in a bowl splashing onto her feet, she would see her body falling down as she descended a staircase, or she would see her stabling herself when holding knife, but such visual hallucinations occurred very occasionally [55] this was consistent with Dr Tio’s view that it usually took about a year for soft tissue contusion back injury without structural deficit to reach static phase, and thereafter active treatment would be unlikely to lead to improvement even if there was still residual pain [56] as all 3 typical symptoms (ie depressed mood, loss of interest and enjoyment, and reduced energy leading to increased fatiguability and diminished activity) were present plus at least 4 other symptoms (in this case reduced concentration and attention, reduced self-esteem and self-confidence, ideas of unworthiness, ideas of self-harm or suicide, and disturbed sleep) [57] Dr Singer opined that P’s complaints of “voices” and “visions” did not amount to hallucinations (ie psychotic features) because P at first said they occurred when she was half asleep (ie in a setting of drowsiness) which could also occur in normal / anxious people, and only later said they also occurred when she was awake [58] see Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited HCPI 913/2011, Bharwaney J (unreported, 17 July 2015 ($500,000), Yu Wai Kan v Law Cho Tai HCPI62/2010 (11 May 2011, unreported) ($400,000 before discount for pre‑existing bipolar disorder, $320,000 after discount) and Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2011] 1 HKC 463 ($300,000 after taking into account degeneration), and Cheung Yuk Yee v Furniss Jacqueline Elizabeth & anor CACV236/2014 (unreported 25 June 2015) ($400,000) [59] see Wong Yuin Chiu v Union Printing Company Limited HCPI282/2009 (unreported, 29 July 2011) ($200,000), Chu Chung Wah v Ng Tung Pak & anor HCPI547/2003, Master Jeffries (unreported, 15 December 2004) ($200,000 before 20% discount for pre-existing condition, $160,000 after discount), Chan Chung Keung v Greenroll Limited trading as Conrad Hong Kong HCPI275/2005, DHCJ Carlson (unreported, 20 December 2005) ($180,000), and Gurung Devchandra v Pacific Construction (HK) Co, Ltd & ors HCPI138/2011, DHCJ Sakhrani (unreported, 14 July 2014) ($160,000) [60] see Yip Mau Kei v Wong Kam Tim DCPI1905/2013, HH Judge Levy (unreported, 10 February 2015), Leung Hiu Yan Hilda v Lau Kam Hung DCPI220/2012, DDJ S P Yip (unreported, 15 May 2013), Tamang Udas v Global Sunny Engineering Limited & anor HCPI732/2011, DHCJ Woo (unreported, 7 January 2013) and Fazal Ahmed v MTR Corp Limited DCPI29/2011, DJ Leung (unreported, 25 April 2012) [61] eg Good Yield Property Management Ltd (assistant property officer), Eaton Property Management Company operated by Sky Field Group Limited (property officer), and Ease Joy Management Limited (property officer) [62] P said this was infrequent because Yu usually required evening inspection to be scheduled on the same day as when there was an IO or management committee meeting for a building in the same district [63] mainly carpark / warehouse chits and meal / drink receipts for various vehicles [64] [2008] 5 HKLRD 210, 214-216 [65] Dr Tio considered 1 year sick leave would be appropriate only for back injury [66] see Khan Amar v Cheung Ying Construction Engineering Ltd & anor HCPI231/2005, Reyes J (unreported, 14 March 2006) upheld by the Court of Appeal in CACV153/2006 (unreported, 5 June 2007) [67] see Ha Kwok Ming v Boxton Limited HCPI No576/2007, Suffiad J (unreported, 2 April 2009) [68] according to the statistics kept by the Census and Statistics Department, the average monthly salary of a general office clerk was $13,062, $13,393, $13,230, $12,943 and $13129 on quarterly basis from June 2014 to June 2015 (which was only just slightly lower than P’s notional monthly earnings in the pre-trial period of $13,750) [69] see Cheung Lee Man v Chan Wai Wing cacv179/2006 (unreported, 11 January 2007) where the trial judge did not analyse fully why he considered the plaintiff would be at a disadvantage in the labour market, but Rogers VP para 18 considered circumstances existed to justify the holding and said “...... [clearly] a person who is under some physical disability is at a disadvantage. Lack of mobility can hamper a person’s effectiveness” [70] seeCheung Lee Man [71] seeWong Man Kin v Golden Wheel (C&HK) Transportation Company Limited HCPI913/2011, Bharwaney J (unreported, 17 July 2015) [72] when P was arranged to attend MAB assessment for her back injuries, so D2 / D3 suggested the fees should be reduced to $15,473 [73] when P’s psychiatric treatment should also be static, so D2 / D3 suggested total follow-up expenses up to and inclusive of 1 December 2010 should be $1,530 (up to 16/11/09) + $3,745 (18/11/09 – 07/04/10) + $19,445 (14/4/04 – 16/08/10) + $6,270 (18/08/10-01/12/10) = $30,990 [74] D2 / D3 suggested the expenses should be reduced to $6,910 [75] see Irvine v Police Commissioner of Police for the Metropolis & ors [2005] 3 Costs LR 380 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCPI 347/2012