Yeung Lai Ping v. Secretary for Justice
Read the full judgment text of HCPI 833/2002 on BabelCite. This High Court CFI judgment was delivered on 1 April 2019.
1. This is an action for damages for personal injuries brought by the plaintiff, Ms Yeung Lai Ping. She was formerly employed by the Department of Health of the Hong Kong Government as a dental officer. She claims damages for injuries to her dominant right wrist, including an attrition injury to the triangular fibrocartilage complex (“TFC”), which put an end to her dental career. She alleges that the injuries to her right wrist were caused by the excessive workload that she was put under while
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HCPI 833/2002 [2019] HKCFI 881 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 833 OF 2002 __________________________
__________________________ Before: The Hon. Mr Justice Bharwaney in Court Dates of Hearing: 12-15, 19-21 December 2016 and 2 March 2017 Dates of Further Written Submissions: 10, 17, 21 and 27 March 2017 Date of Judgment: 1 April 2019 ______________ J U D G M E N T _______________ Index The plaintiff’s work as a dental officer prior to her attachment to North District Hospital Difference between surgical and non-surgical extractions The plaintiff’s work in OMS&DU of NDH The medical evidence on liability Causation, foreseeability, breach of duty and remoteness Pain, Suffering and Loss of Amenities (“PSLA”) Damages for loss of congenial employment Discount for pre-existing vulnerability Deduction of employees’ compensation 1.This is an action for damages for personal injuries brought by the plaintiff, Ms Yeung Lai Ping. She was formerly employed by the Department of Health of the Hong Kong Government as a dental officer. She claims damages for injuries to her dominant right wrist, including an attrition injury to the triangular fibrocartilage complex (“TFC”), which put an end to her dental career. She alleges that the injuries to her right wrist were caused by the excessive workload that she was put under while working in the Oral Maxillofacial Surgery and Dental Unit (“OMS&DU”) of the North District Hospital (“NDH”). 2.The plaintiff was born on 19 December 1966. She graduated from the Dental School of the University of Hong Kong in January 1990. She then practised as a dentist in a private dental clinic for 4 and a half years, until September 1994, when she resumed full time studies at the University of Hong Kong to pursue a 2-year Master of Dental Surgery degree which she completed in September 1996. During that period, she also took up the post of a Postgraduate Dental Officer, performing clinical dental work in the Prince Philip Dental Hospital. 3.After completing her Masters’ degree, the plaintiff returned to private practice for a few months, and then joined the Department of Health as a Dental Officer in February 1997. She was first deployed to work as a Relieving Dental Officer. She worked in various Government dental clinics for civil servants, and their dependents, as well as in the Lam Tin School Dental Care Services. 4.In March 1998, she took up an attachment post in the OMS&DU of the Queen Elizabeth Hospital (“QEH”). From time to time, she also took up some additional work, on a voluntary basis, at the Department of Health’s Yaumatei evening dental clinic, and received an honorarium for such work. She was posted to work in OMS&DU of NDH in September 1998. After suffering injuries to her right wrist in October 1999, when she was almost 33 years old, she was transferred to work at the School Dental Care Services in the MacLehose Dental Centre in February 2000. She remained in that post until her invalidation from the civil service in August 2004. 5.It is her work in OMS&DU of NDH that is the subject matter of this litigation. 6.Liability was strongly contested. Whilst prolonged, awkward and forceful movements of the wrist are known to be associated with work-related upper limb disorders, there are no reported cases of attritional TFC damage arising from working as a dentist. 7.A number of witnesses were called to give evidence. The plaintiff give evidence[1] and called a witness, Dr Jackie Lau Wai Ping (“Dr Jackie Lau”)[2], who is a dentist and was a colleague of the plaintiff. The defendant called a number of witnesses: Dr Sunny Tsui Hing Chung (“Dr Sunny Tsui”)[3], the senior dental officer in OMS&DU of NDH from March 1998 to early 2002; Dr Lee Kwing Hong[4], the consultant in charge of all hospitals where the Department of Health had oral maxillofacial surgery and dental units; Dr Wilkie Lui Wai Kay (“Dr Wilkie Lui”)[5], the senior dental officer in OMS&DU of NDH who took up, from March 2016, the same post that Dr Sunny Tsui held; Ms Irene Tai Sau King (“Ms Irene Tai”)[6], a dental surgery assistant who worked in OMS&DU of NDH from 1998 to December 2008; Dr Cham Kwong Man[7], an acting principal dental officer whose duties included occupational health within the dental service of the Department of Health; and Dr Yau Chuen Kam[8], the consultant oral maxillofacial surgeon in charge of the dental service of the Department of Health before he retired in early 2015. The defendant also adduced evidence relating to the quantum of the plaintiff’s claims from Ms Chui Oi Yee[9], a senior executive officer in the Department of Health in charge of appointments, and Ms Lee Chi[10], a senior executive officer in the Department of Health in charge of personnel. 8.The parties’ called their respective experts on liability to give evidence: Ms Tamara James (“Ms James”)[11], an ergonomics director and assistant professor at Duke University, North Carolina, USA, for the plaintiff, and Professor Chetwyn Chan Che Hin (“Professor Chan”)[12], chair professor of the Department of Rehabilitation Sciences at the Hong Kong Polytechnic University, for the defendant. I also received evidence from the parties’ orthopaedic experts on liability, Professor Leung Ping Chung (“Professor PC Leung”)[13] for the plaintiff and Dr Yeung Sai Hung (“Dr Yeung”)[14] for the defendant, in written form, including 2 joint reports[15], the last one dated 1 November 2016. 9.A substantial number of documents, including medical literature, was also adduced by the parties[16]. 10.A disturbing feature of this action is that ithas taken so many years to come to trial. The action was started on 25 September 2002, almost 3 years after the injury was suffered in October 1999, but the action only came on for trial on 12 December 2016, some 17 years later. Justice delayed is not only justice denied. Substantial delay impairs the ability of the court to dispense the justice that the parties deserve. Of the 14 witness statements that I received into evidence, only 3 witness statements had been prepared and signed in November and December 2003, the rest having been prepared and signed in 2015 or 2016. As I had remarked during the course of the trial, when parties allow cases to go to sleep for a many years, and then call factual witnesses to speak of events that occurred more than 10 years ago, both sides suffer prejudice. Human memory is such that it is almost impossible for parties to recall matters that happened so long ago that did not personally affect them in a dynamic way. Even if a witness statement was prepared and signed a few years after the events in question, parties would still have great difficulty if, many years later, they were asked to recall matters and events that had been dealt with in the witness statement in a cursory manner[17]. The plaintiff’s work as a dental officer prior to her attachment to North District Hospital 11.The plaintiff’s evidence about work as a dentist prior to attachment to NDH, which I have summarised in §§2 to 4 above, was not seriously challenged[18]. I also accept her evidence, set out in §§3 to 7 of her supplemental witness statement[19], regarding her duties and workload from February 1990 to September 1998. From late March 1998 to late September 1998, the plaintiff was attached to OMS&DU of QEH where her work was evenly distributed between consultations, conservative and periodontic work, and oral surgery. Between April and June 1998, she performed only 21 surgical extractions (“SX”)[20]. From July to September 1998, the number of SX increased to 38, 40 and 28 per month respectively. I accept her evidence that this increase of SX did not cause any symptoms in her right hand and wrist. I accept the plaintiff’s evidence and find that, prior to working at NDH, the plaintiff did not experience any numbness or other symptoms in her right hand and wrist, either from dental work or from any other cause[21]. Difference between surgical and non-surgical extractions 12.A memorandum on the Efficiency Index, an evaluation system for the dental service (general stream) was issued by the consultant dental surgeon (operations) of the Department of Health on 7 April 1995. It was updated on 29 March 1999[22]. Although it did not apply to the oral maxillofacial stream including OMS&DU, the time required to perform a non-surgical extraction and a SXin the OMS&DU and in the general stream would be comparable[23]. The Efficiency Index (“EF”) included revised guidelines for the Efficiency Index Table (“EIT”) that contained, amongst others, the following definitions[24]:
When the plaintiff was referred to these definitions, sheexplained that SX did not just involve raising of flap but also removal of bone and cutting of teeth, and that 99% of her surgical extractions involved bony impaction[25]. 13.Under cross-examination, the plaintiff agreed that non-surgical extractions did not require the use of surgical drills and that they involved the removal of teeth by forceps and dental elevators, without raising of soft tissue flap, or removal of bone, or sectioning of teeth, and without the need for suturing[26]. She could complete a SX in around 40 to 45 minutes during which she would need to use the handheld drill for about 20 to 30 minutes. In addition, she had to use her wrist for other procedures such as injection of anaesthetic, suturing and irrigation. A SX in the operating theatre (“OT”) took a shorter time because the handheld drill there was more efficient[27]. A faster drill, just like a sharp knife, is more efficient: the strain to the wrist during a SX is due to the resistance from the bone and hard tissue, when the drill is faster one can use less force[28]. A non-surgical extraction took between 10 to 15 minutes during which time a minute to 5 minutes would involve repetitive wrist action to extract the teeth. However she performed comparatively fewer non-surgical extractions[29]. SX required continuous exertion of force as opposed to non-surgical extractions which required a short exertion of force to loosen the tooth after which it would be easy to elevate[30]. Using a surgical drill for SX did not reduce the strain on the wrist when compared with non-surgical extractions: the wrist was put under a lot of strain when the drill was used continuously to cut very hard bone and hard teeth substance[31]. 14.Dr Lee Kwing Hong personally found that, with the use of a surgical drill, SX demanded less strength than extractions by forceps. A well-maintained surgical drill produced the minimum of vibrations and made SX less tiring[32]. Dr Sunny Tsui was of the opinion that, when properly used, the surgical drill required a minimum amount of force of the wrist which, in his experience, was even less than that required in tooth extractions by forceps[33]. 15.It does not assist me to compare the momentary amount of force required to extract a tooth with forceps or elevators and the momentary amount of force required to operate a surgical drill to cut bone or teeth. The force required must depend on the resistance that is met. What is clear is that a non-surgical extraction takes a shorter period of time than a SX. The EIT records the time to be taken for a non-surgical extraction for a single tooth as 1.5 units[34] or 15 minutes, and the time to be taken for a SX as 4 units or 40 minutes, and even 5 units or 50 minutes for a bony distal or horizontal impaction of the 3rd molar[35]. I accept the plaintiff’s evidence that a non-surgical extraction took between 10 to 15 minutes, during which time a minute to 5 minutes would involve repetitive wrist action to extract the teeth; and that a SX would take around 40 to 45 minutes during which time she would need to use the handheld drill for about 20 to 30 minutes. Repetitive wrist action requiring continuous exertion of force over a period of 20 to 30 minutes produced more strain on the wrist then similar action over a period of 5 minutes. The plaintiff’s work in OMS&DU of NDH 16.The plaintiff was posted to work in OMS& DU of NDH in September 1998. Dr Sunny Tsui was the senior dental officer posted there. The plaintiff worked 5 and a half days a week, with alternative Saturdays off, working from 9 am to 5 pm on Mondays to Fridays and from 9 am to 1 pm on Saturdays. She would start from 8:30 am when she had dental operations in the OT and when she had to make ward rounds. A working day was split into 2 sessions, the morning and the afternoon sessions. From September 1998 to June 1999, she worked in the OT for 2 sessions and in her surgery for 8 to 9 sessions per week. She spent most of her working hours in her clinic, S1[36]. 17.Despite some initial confusion, it became reasonably clear, after hearing the evidence of the plaintiff, her witness, Dr Jackie Lau, and Ms Irene Tai[37], that the equipment available for the plaintiff to use in her clinic, S1, was a KaVo surgical unit Model 905 console to which the surgical drill Model No 3610N[38] was attached. I accept the evidence of Ms Irene Tai that the dental unit in S1 was a KaVo surgical unit Model 905 console and not a Kavolus unit[39]. The plaintiff has given evidence that she relied on Ms Irene Tai to provide her with the information of the dental equipment she used, which Ms Irene Tai did shortly after she was transferred out of NDH in early 2000. Dr Jackie Lau, who was asked about these matters, so many years after she was posted to NDH in August 1998 as a relieving dentist for about 6 weeks, was not sure what the model of the console was. However, all were agreed that, unlike the KaVo Model 905 console depicted in the diagram in Bundle F[40], the console used by the plaintiff in S1 did not have a built in irrigation system. Instead, a syringe with saline would be used to irrigate the patient undergoing dental procedures. 18.The OMS&DU of NDH handled cases of referrals from public and private hospitals, and doctors and dentists in public and private practice, as did the OMS&DU of other hospitals. Most of the referred cases required treatment, usually surgical treatment. The nature and complexity of the referrals varied from simple procedures to complex dental surgery under general anaesthesia. Dental surgeries under local anaesthesia were performed at the clinic. Dental surgeriesunder general anaesthesia, or local anaesthesia with intravenous sedation, were performed in the OT[41]. After the initial consultation, usually carried out by Dr Sunny Tsui[42], an appointment would be booked by the clerical assistant for a dental procedure to be carried out on the patient. Although the plaintiff could instruct the clerical assistant to space out the SX, in practice, that did not happen. When she was first posted to NDH, her appointment book was already fully booked for 3 months, and more bookings were being made continuously thereafter [43]. 19.In her 2nd supplemental witness statement, the plaintiff produced a table of SX per work session during the period she worked in NDH from the end of September 1998 to October 1999[44]. The average number of SX per session was 1.68[45]. The table was compiled from entries that had been made in her monthly returns, the appointment book of her surgery, S1, and the OT records. She was cross-examined extensively on this table[46] and errors in relation to commencement of duty and to days off were rightly pointed out to her. It was also suggested to her that the average number of SX per session from the end of September 1998 to October 1999 was 1.65. I am prepared to accept this figure. Hence, I need not deal in detail with the evidence of Dr Wilkie Lui[47], who pointed out certain errors regarding commencement of duty and days off and who suggested that the tables prepared from monthly returns, set out in the tables attached to the witness statement Dr Yau Chuen Kam, were more accurate[48]. Dr Yau Chuen Kam[49], the consultant oral maxillofacial surgeon in charge of the dental service of the Department of Health before he retired in early 2015, gave evidence. He explained that the tables, giving a breakdown of the work carried out by the plaintiff and Dr Sunny Tsui[50], and a breakdown of the number of non-surgical extractions and SX performed by the plaintiff and 4 comparable dental officers[51], were prepared painstakingly by the executive staff of the Department of Health by extrapolating them from the monthly returns[52]. I also accept that, if a discrepancy is spotted, that the monthly returns would be more accurate than the appointment book[53]. In the event of conflict between the plaintiff’s tables and Dr Yau Chuen Kam’s tables, I will rely upon the latter as containing the correct information. Although Dr Yau Chuen Kam did not verify the figures set out in his tables[54], I do not see any basis to doubt the accuracy of his tables. I also accept the accuracy of the information set out in the table setting out the source of the information from which the plaintiff’s and the comparable dental officers’ workload was ascertained[55]. Although Dr Yau Chuen Kam’s witness statement was dated 5 June 2012, and was made in response to the plaintiff’s supplemental witness statement dated 3 April 2012[56], the tables he produced were prepared in 2003. 20.I proceed on the basis that the plaintiff’s table is largely accurate and that any minor errors in it do not affect the overall average. The heaviest workload in terms of SX per session was during the months of late September to November 1998 being 2.16, 2.15 and 2.0 SX per session for the 3 months. The workload lessened in the subsequent months from December 1998 to July 1999 but the number of SX per session still ranged from a low of 1.54 in May 1999 to a high of 1.81 in February 1999. It appears from the tables produced by Dr Yau Chuen Kam that, from October 1998 to September 1999, the plaintiff had performed 710 SX whilst, over the same period, Dr Sunny Tsui had only performed 479 SX[57]. 21.Dr Jackie Lau gave evidence[58] that she and the plaintiff were in the same batch of colleagues who joined the Department of Health in 1997. She did not know the plaintiff personally but came to know, in 2000, that she suffered from right-hand wrist pain and she mentioned casually to the plaintiff that she had also experienced right-hand wrist pain while working in NDH that was due to the high SX workload. In 2004, she agreed to the plaintiff’s request to her to be a witness in these proceedings. Dr Jackie Lau had been posted to NDH in August 1998 as a relieving dentist for about 6 weeks. She worked 11 sessions per week. Because the booking schedule was very heavy at NDH, she had 3 SX in the morning and 2 SX in the afternoon almost 5 days a week. She started to suffer wrist pain and shoulder discomfort after she had worked for about 2 weeks at NDH. The pain became progressively worse until she was posted elsewhere in mid-September 1998. She did not complain about this to Dr Sunny Tsui. She did not do so because she was just a relieving dentist posted to NDH for several weeks and she believed that the pain would stop when she left NDH. She explained that she was young then and that her generation was not used to speak out at that time. She agreed that, if she was unwell, she, or the receptionist, or the nurse, could cancel an appointment for a dental procedure, but only after seeking approval from the person in charge. I found her to be a frank and candid witness. I accept her testimony and find that she suffered from wrist pain after performing a substantial number of SX during the 6 weeks she spent in NDH. However, given the substantial passage of some 12 years before she made her witness statement in December 2010, I am not satisfied that her memory of being assigned as many as 5 SX to perform every day is reliable. 22.Although Dr Sunny Tsui has no recall of any such conversation[59], I accept the plaintiff’s evidence that, despite her heavy workload, Dr Sunny Tsui still asked her if she could do more SX every day. This occurred before she had any right hand symptoms. She declined to do so and suggested to him that she should be given more consultations, a better rotation of a variety of dental treatments, and space between the bookings for SX. However, he did not respond to her request[60]. 23.In late May to early June 1999, the plaintiff felt weakness in her right hand and nocturnal paraesthesia[61]. It also occurred intermittently during the daytime when she was driving. In July 1999, right wrist pain started to occur when she performed dental procedures. An occupational therapist made her a working splint to wear on her right hand in late July or early August 1999. Dr Sunny Tsui knew this and had been told that the splint was made for her by a patient who was an occupational therapist[62]. She first consulted the orthopaedic doctor in NDH on 19 August 1999[63] and was prescribed pain relief medication. At that time, Dr Sunny Tsui was on leave and only returned on 28 August 1999. He has no recollection of being informed about this consultation or a subsequent assessment of the plaintiff for carpal tunnel syndrome on 23 August 1999[64]. I am unable, on the evidence before me, to find that he was informed of these consultations after his return from leave. Occupational therapy and physiotherapy was also provided to the plaintiff. Dr Sunny Tsui knew that she had started physiotherapy but was not sure when she did so[65]. By late September 1999, the increase in the severity of her right wrist pain, especially on exertion, together with her right hand paraesthesia, had made dental work intolerable. She was granted sick leave by the orthopaedic clinic of NDH from 4 October 1999 to 23 October 1999[66]. 24.It was the plaintiff’s evidence that the hand splint was conspicuous, that Dr Sunny Tsui knew of her right hand and wrist problems, and that she had sought medical assistance[67]. On the evidence before me, I am able to find that Dr Sunny Tsui noticed her wearing a hand splint in July or August 1999[68] and, further, that he knew that she was granted sick leave for her wrist pain from 4 October 1999 to 23 October 1999, as he had to make arrangements for relieving dental officers[69]. He would have seen the sick leave certificates and would have known its contents stating, in one of them, that she had right hand numbness and weakness, tenderness around right wrist; and, in the other, that she had right wrist pain[70]. 25.The plaintiff also gave evidence that when she was back at work after the end of 3 weeks’ sick leave on 23 October 1999, Dr Tsui said to her that her sick leave was hindering and disrupting the unit’s operation and that he would not change the schedule for her, even though the receptionist had requested that less surgical cases be booked for her[71]. In her witness statement made on 13 December 2003, the plaintiff has said that when she was “back at work for short periods between sick leaves, he would not change the schedule for me, even though the receptionist had requested that less surgical cases be booked for me”. Dr Sunny Tsui made no mention of this in his witness statement. It was not put to him, in the course of his evidence, that such a conversation had taken place. If it had been, it is likely that he would have said that he had no recall of such a conversation. I accept the plaintiff’s evidence on this matter, but not the further evidence that she gave, for the first time in the course of her cross-examination, namely, that she had asked Dr Sunny Tsui whether he wished to make her “handicapped”[72], which, she admitted, was not mentioned in any of her witness statements. With the passage of some 17 years, I am not satisfied that her recollection of this conversation is reliable. 26.Dr Lee Kwing Hong was called to give evidence[73]. He was the consultant in charge looking after all hospitals where the Department of Health had an OMS&DU since September 2003. He retired in September 2010. In mid-1998, he was the consultant oral and maxillofacial surgeon at the Prince of Wales Hospital and remained in that post until September 2003. NDH was a newly established hospital in 1998 and Dr Sunny Tsui was a senior medical officer posted to the OMS&DU of NDH. Dr Lee Kwing Hong would visit the OMS&DU of NDH and participate in patient management there in complex cases, together with Dr Sunny Tsui, upon his request. Towards the end of 1999, the plaintiff began to take sick leave for pain in her right hand. He had seen her wearing a splint from time to time. Under cross-examination, he said that the immediate supervisor of Dr Sunny Tsui was Dr Bill Yan, the consultant oral maxillofacial surgeon in charge of NDH at that time. Dr Albert Ho, a consultant in operations, was also responsible for looking after the occupational health of all the staff. He could not comment on whether or not Dr Sunny Tsui should have consulted either Dr Bill Yan or Dr Albert Ho about the plaintiff’s case. His role was to come to NDH and offer his expertise as a consultant in the OT for difficult cases. He was not involved in the staff management of NDH. He had been involved in staff management and personnel management issues from 2003 to 2010. It was not very common, but if a dental officer suffered a wrist injury or had wrist pain then, generally speaking, in the initial period after the completion of sick leave, he would assign less complicated and less strenuous cases to the officer. 27.It was the plaintiff’s evidence that, on her return from sick leave after 23 October 1999, she was initially assigned one SX per day for 4 days and 2 SX on one day whilst Dr Sunny Tsui conducted all the SX fixed in the OT[74]. This is borne out by her appointment book for the week of 25 to 30 October 1999 which shows that 1 SX was fixed for her on Monday, 25 October 1999, 1 SX on the Tuesday, 26 October 1999, 2 SX on Wednesday, 27 October 1999[75], none on Thursday, 28 October 1999, and 1 SX on Friday, 29 October 1999[76]. This was considerably less than her SX workload before she went on sick leave on 4 October 1999, as is shown on the following table:
I am not able to conclude whether or not the reduction in her SX workload on her return to work on 25 October 1999 was planned, or fortuitous, given that her appointment book was being filled continuously and could be fully booked months in advance. Indeed, the plaintiff accepted that it was likely that appointments for the week commencing 25 October 1999 had been booked before 4 October 1999 when she was given sick leave[77]. 28.Notwithstanding that her condition was well known to Dr Sunny Tsui, 3 SX cases had been, and remained, assigned to her to carry out during the Saturday morning session on 30 October 1999. I accept her evidence and find that she performed 3 SX that morning[78], that in the course of those extractions, her right wrist gradually became more painful and that, towards the end of the third case, she suffered excruciating pain in her right wrist[79]. On the following Monday, 1 November 1999, she was granted further sick leave for a few weeks which was subsequently continued until 24 December 1999[80]. 29.I accept the plaintiff’s evidence that after her return to work in the week of 25 October 1999, Dr Sunny Tsui had not asked whether she could manage to perform SX and, further, that he had had not asked her whether she could manage to perform 3 SX on the Saturday morning[81]. Indeed, I am unable to find, on the evidence, that Dr Sunny Tsui knew that 3 SX cases had been assigned to her on that morning. As I have found above, her appointment book was being filled continuously and could be fully booked months in advance. 30.Dr Cham Kwong Man[82], an acting principal dental officer whose duties included occupational health within the dental service of the Department of Health, gave evidence and she was asked about the memorandum dated 19 January 2000 from a Mr C M Poon, who was a senior occupational hygienist for the Commissioner for Labour to the Director of Health. The memorandum stated that:
She agreed with the first recommendation. Regarding the second recommendation, she said it was good advice for the injured staff but it might depend on whether that specific clinic or unit could provide for the surgical wisdom tooth extractions to be interspersed with lighter activities. If it could not be done, the first option, i.e. to post out, would be the best one rather than to have impact on the work schedule in that clinic. As regards the third recommendation, she said that if changing the work schedule would cause hardship in the workplace then they would change the operator, by posting out. After it was pointed out to her that the suggestion that the plaintiff be posted out was not made until 22 November 1999, the following question was put to her:
The medical evidence on liability 31.As I have noted in §8, I received evidence from the parties’ orthopaedic experts on liability, Professor PC Leung[84] for the plaintiff and Dr Yeung”[85] for the defendant, in written form, including 2 joint reports[86], the last one dated 1 November 2016. They have provided a helpful, and factually correct, history of her medical problem in their joint report dated 14 June 2012, which I set out below[87]:
32.Dr Yeung had also rightly noted in his earlier report dated 5 September 2003[88] that the plaintiff had symptoms of carpal tunnel entrapment on her non-dominant left hand. She had told him that nerve conduction test done by Dr Chan Yuk Wah in May 2000 showed that the left-hand side was mildly abnormal. The plaintiff also noticed symptoms on the left hand after the right-hand operation in August 2002. At that time, her right hand was bandaged and splinted and she had to use the left-hand for her daily activities. During that time, she was already posted to look after school children and the volume of work was already reduced. 33.In their joint report dated 14 June 2012, Professor PC Leung and Dr Yeung agreed that the plaintiff suffered from bilateral carpal tunnel syndrome that was more severe on the right side and was only transient and mild on the left side; tear of TFC at the right wrist; and dislocation of the extensor carpi ulnaris tendon of the right wrist[89]. 34.Their opinion differed on the causation of these injuries. Professor PC Leung was of the opinion that the carpal tunnel syndrome and TFC tear of the right wrist were most likely the result of occupational injuries[90]. Dr Yeung agreed that the dental work might have contributed to the development of right carpal tunnel syndrome. However, the plaintiff also developed symptoms of carpal tunnel entrapment in her non-dominant left hand during the period when she was posted to look after schoolchildren and when the volume of work was already reduced. He was of the view that the plaintiff was intrinsically predisposed to develop carpal tunnel entrapment. Even Professor PC Leung had agreed in his earlier report dated 24 January 2003 that the fact that her non-dominant hand also developed a mild degree of carpal tunnel syndrome within the year after the right hand had problems supported the assumption that the problems in the dominant hand and wrist might not be totally occupation-related[91]. Dr Yeung also agreed that the dental work of the plaintiff might have contributed to the development of TFC injury. X-ray of her right wrist taken in QEH on 31 July 2002 showed that her right ulnar was 1 mm longer than the radius: i.e. she was ulnar positive for 1 mm. Positive ulnar variance of +1 to +5 mm has been reported to be associated with TFC injury. Dr Yeung was of the opinion that the positive ulnar variance was the major factor causing the TFC injury[92]. 35.Professor PC Leung and Dr Yeung agreed that there was no known pre-existing problem of carpal tunnel syndrome nor pre-existing condition for TFC injury. However, Dr Yeung was of the opinion that the positive ulnar are variance was a predisposing cause of the TFC injury[93]. Professor PC Leung agreed, in this later report dated 29 February 2016, that although the positive ulnar variance could be considered a predisposing factor, the structural variation could have at most, only made the plaintiff more vulnerable to unfavourable work-related manual stresses. Assumptions that a minor structural variance at the wrist would disable a young working person could not stand reasonable and logical analysis[94]. 36.Professor PC Leung and Dr Yeung have clarified and narrowed their difference of opinion on causation in their 2nd joint report dated 1 November 2016[95]. By this time, both of them had the opportunity to review the x-rays of both wrists taken on 11 January 2016. The x-ray of the left wrist showed that ulnar positive variance was 2.3 mm the left side, which was more than the positive variance of 1 mm on the right site[96]. Dr Yeung agreed with Professor PC Leung that her left side with the positive variance of 2.3 mm should be more vulnerable to TFC injury. There were several known predisposing causes of attrition type of TFC injury and positive ulnar variance was just one of them. Frequent use of power group with rotation of the forearm was another factor[97]. Previous research of the forces transmitted through the radius and ulna showed that when they were of equal length (neutral variance), about 20% of the force passes through the ulna. As the length of the ulna increases to +1 mm, the force increases to 30%. When the ulna was +2.5 mm, 41.9% of the force was transmitted through the ulna[98]. 37.Professor PC Leung and Dr Yeung were in agreement that the plaintiff’s TFC damage could be the result of both structural predisposition and repeated work-related strenuous mechanical stresses. They would not be able to affirm that her wrist problem was solely predisposed by the structural abnormality. They both felt that repeated mechanical stresses on the wrist and TFC could cause chronic damage, particularly so, because of the structural variance of the plaintiff’s right wrist[99]. 38.Dr Yeung was of the opinion that both are ulnar plus variance and repetitive strenuous movements required for her work will predisposing factors of her TFC injury. In his earlier report dated 5 September 2003, Dr Yeung stated that he thought that her work should be responsible for 20% of any impairment arising from the TFC injury[100]. In their 2nd joint report dated 1 November 2016, Dr Yeung clarified that there was no scientifically validated method to apportion her impairment from these 2 factors quantitatively and that, in his previous report dated 5 September 2003, he had “put up the assumption that her work should be responsible for 20% of her impairment only”[101]. Save for noting that the ulnar positive variance of her right wrist was mild, Professor PC Leung refrained from committing a quantitative analysis with regard to the compensation issues[102]. 39.I have already found that the plaintiff performed 3 SX on the morning of 30 October 1999; that, in the course of those extractions, her right wrist gradually became more painful; and that, towards the end of the third case, she suffered excruciating pain in her right wrist[103]. I find as a fact that the plaintiff suffered an attrition fracture of the TFC of her right wrist towards the end of the third SX that she was performing that morning, and that she suffered excruciating pain in her right wrist as a result of the damage done to the TFC of her right wrist. I am supported in making this finding by the joint opinion of Professor PC Leung and Dr Yeung, both of whom were of the opinion that repeated mechanical stresses on the wrist and TFC could cause chronic damage, particularly so, because of the structural variance of the plaintiff’s right wrist. 40.Dr Yeung was of the opinion that her work should be responsible for 20% of any impairment arising from the TFC injury, thereby implying that the structural variance of the plaintiff’s right wrist was 80% responsible for the TFC injury. He conceded, very frankly, that there was no scientifically validated method to make such an apportionment between the 2 causes of the TFC injury. In this connection, I prefer the opinion of Professor PC Leung that the main cause of the TFC injury was the repetitive strenuous activities related to dental extractions and the related wrist movements, and that the minor positive ulnar variance of the right wrist was a minor cause of the TFC injury in that it made the plaintiff more vulnerable to unfavourable work-related manual stresses. I am persuaded by Professor PC Leung to accept that assumptions that a minor structural variance at the wrist would disable a young working person could not stand reasonable and logical analysis[104]. I find that, but for the work-related stresses which she experienced on the morning of 30 October 1999, the plaintiff would not have suffered the TFC injury on that day, a finding which is supported by the opinion of Professor PC Leung, which I have preferred. The strict test of causation in negligence is satisfied in the present case. 41.However, even if I were to accept Dr Yeung’s opinion that her work was 20% to blame for the TFC injury, a 20% contribution towards the damage being caused was significant enough for me to find that her work was a material cause of the TFC injury. A 20% contribution towards the damage being caused cannot be classified as being de minimus[105]. It is trite law that liability attaches in negligence even though the conduct complained of was not the sole or major cause of the damage that was suffered. 42.In BAE Systems (Operations) v Konczak [2017] EWCA Civ 1188; [2018] I.C.R. 1, Underhill LJ commented on the distinction between apportionment of causation and quantification of damage and stated:
43.Even if I were to accept Dr Yeung’s opinion that her work should be responsible for 20% of any impairment arising from the TFC injury, and that the structural variance of the plaintiff’s right wrist was 80% responsible for the TFC injury, I would go on to find that the TFC injury was truly indivisible, and that it is not possible to apportion causation in this case. 44.Finally, even if the ulnar variation was 80% responsible for the TFC damage, the plaintiff’s pre-existing vulnerability did not make her loss too remote as the thin eggshell skull rule applies in this case. A defendant has to take his victim as he finds him or, as Mackinnon LJ stated in Owens v. Liverpool Corp[106]:
45.The Department of Health owed a non delegable duty of care to its employee, the plaintiff, to take reasonable steps to safeguard from injury in the course of employment. The plaintiff started to suffer from symptoms in her right wrist in late May and early June 1999. Right wrist pain started to occur when she performed dental procedures in July 1999. She wore a splint on her right hand from late July or early August 1999. Dr Sunny Tsui had noticed her wearing a hand splint at that time. She consulted an orthopaedic doctor in mid-August 1999. She received occupational therapy and physiotherapy. Dr Sunny Tsui knew that she had started physiotherapy although he was not sure when she did so. 46.From 31 August 1999 to 30 September 1999[107], the work that was assigned to perform was considerable, and included 43 SX, despite the fact that she had started to suffer from right wrist pain from late July or early August 1999, had towear a splint, and was prescribed pain relief medication. Notwithstanding that her condition was well known to Dr Sunny Tsui, 3 SX cases had been, and remained, assigned to her to carry out during the Saturday morning session on 30 October 1999 after her return to work from sick leave. Although Dr Sunny Tsui may not have known that 3 SX cases had been assigned to her on that morning, given the condition of her right wrist, she should not have been assigned to perform 3 SX on one morning. The Department of Health, the employer of the plaintiff, is imputed with the knowledge of the condition of the plaintiff’s right wrist that its employee, Dr Sunny Tsui, had, and the Department of Health is also imputed with the knowledge of its employee who had fixed 3 SX on the plaintiff’s appointment book for the plaintiff to perform on 30 October 1999. 47.Dr Lee Kwing Hong gave evidence that if a dental officer suffered a wrist injury or had wrist pain then, generally speaking, in the initial period after the completion of sick leave, he would assign less complicated and less strenuous cases to the officer. Dr Cham Kwong Man agreed that it is highly recommended that a dental officer returning to work after injury should be transferred, during her recovery period, to less demanding positions that require fewer forceful exertions of the wrist and added that if changing the work schedule to accommodate the dental officer during her recovery period would cause hardship in the workplace, then they would post out the recovering dental officer. She also agreed that the best time to offer a posting out would be at the time when the dental officer had finished her sick leave. 48.I refer to the literature and the evidence I referred to in §§114-116 below. I find that the defendant knew or ought to have known that repetitive strenuous dental activities related to wrist movements could cause upper limb musculo-skeletal disorders in dental personnel, including carpal tunnel syndrome. I find that it was reasonably foreseeable that assigning the plaintiff to perform 3 SX on the morning of 30 October 1999 may cause damage to her right wrist which had been injured previously. If damage to the wrist is reasonably foreseeable, reasonable foresight of the extent of damage is not required for liability to attach in negligence, neither is reasonable foresight of TFC damage to the wrist required, nor is reasonable foresight of the precise manner of its infliction required, for liability to attach in negligence [108]. 49.I am satisfied that the Department of Health is liable in negligence to the plaintiff for attrition fracture of the TFC of her right wrist that she suffered on 30 October 1999. The Department of Health was in breach of its duty of care owed to its employee, the plaintiff, by requiring her to carry out 3 SX on 30 October 1999. The breach of the said duty of care caused the TFC damage to her right wrist. 50.The plaintiff was cross-examined extensively on what steps she took to reduce the workload that had been fixed for her for Saturday, 30 October 1999[109]. I am satisfied that she would have seen, even before Friday, 29 October 1999, that she was scheduled to perform 3 SX on the Saturday morning. I am also satisfied that she did not complain to Dr Sunny Tsui that she could not handle 3 SX in 1 session. However, I accept her evidence that the staff of NDH did try to cancel some of her appointments so that she would not have to shoulder that much work[110]. An appointment for a SX on the afternoon of Wednesday, 27 October 1999, had been cancelled and there were 3 other cancellations, for other procedures, on Monday, 25 October 1999,on Thursday, 28 October 1999, and on Friday, 29 October 1999[111]. She acknowledged that she was worried about having to perform 3 SX on the Saturday morning. However, she expected some changes to be made to the Saturday appointments[112]. I find that this was more a hope on her part, rather than an expectation. 51.Insofar as this line of cross examination was directed to trying to establish contributory negligence on the part of the plaintiff, it is important to note that the onus is on the defendant to establish that any steps that the plaintiff ought to have taken to reduce her workload would have resulted in the rescheduling of some of her appointments on that Saturday morning. I am not satisfied, on the evidence, that any complaints the plaintiff ought to have made would have resulted in the rescheduling of the appointments fixed for that Saturday morning. Indeed, a stronger ground for asserting contributory negligence on the part of the plaintiff would be to rely upon the plaintiff’s failure to have regard to our own safety, by her failure to stop work and to refuse to carry out the third SX fixed for that morning after her wrist gradually became more painful in the course of the SX she performed; and to assert that, had she done so, the injury to her TFC would not have occurred[113]. Dr Cham Kwong Man’s evidence that an employee, who is a graduated dentist, has his individual responsibility to take care of himself when performing his duty, for example, by applying what he has learned in dental school when extracting teeth, is a layman’s restatement, in the context of dental work, of the general duty imposed by the law of negligence to take care of one’s own safety[114]. However, these observations are academic as these matters were not pleaded in the Defence to the plaintiff’s claims. The plaintiff’s failure to complain about 3 SX that had been fixed on that Saturday morning was raised in the course of final submissions[115], but was rightly objected to[116], as this ground had not been included under the particulars of the plaintiff’s contributory negligence pleaded in the Defence. 52.The matters that were pleaded were not pursued at trial[117]. The offer to be posted out of NDH was only made on 22 November 1999, after the damage to the TFC of her right wrist had already occurred[118]. 53.Ms James[119], an ergonomics director and assistant professor at Duke University, North Carolina, USA, gave evidence for the plaintiff, and Professor Chan[120], Chair Professor of the Department of Rehabilitation Sciences at the Hong Kong Polytechnic University, gave evidence for the defendant. As I have already found the Department of Health liable in negligence for the reasons set out above, I shall deal with this evidence and my findings on them as briefly as possible. I do so as they would become relevant if I am overturned, on appeal, on the findings I have made above. 54.Ms James is an assistant professor in the Department of Community and Family Medicine at Duke University Medical Center. She is a certified professional ergonomist who received her master’s degree in Human Factors Engineering from George Mason University in Virginia. Her bachelor’s degree is in the area of Industrial Engineering from the University of Iowa. Ms James has worked for over 20 years as the Director of Ergonomics Program at Duke University Medical Center, having responsibility for hazard evaluation and training for upward of 35,000 workers[121]. Ms James prepared her ergonomic assessment in this case based on the Moore and Garg Strain Index. In 1995, J Stephen Moore and Arun Garg published a paper called “The Strain Index: a Proposed Method to Analyse Jobs for Risk of Distil Upper Extremity Disorders.”[122] (“the Strain Index”). Prior to this case, Ms James had performed ergonomic assessments on dentists, some of whom had hand and wrist related issues[123]. In her ergonomic assessments, she had used the Strain Index about 25 times. Although the Strain Index was published over 20 years ago, Ms James said that it remained the gold standard to analyse jobs for the risk of distal upper extremity disorders[124]. 55.Professor Chan, Chair Professor of the Department of Rehabilitation Sciences at the Hong Kong Polytechnic University, graduated with a bachelor of science degree in Occupational Therapy from University of Alberta. He received a master’s degree from the University of Hull in the field of Health Administration and Research. He also has a PhD from the University of Alberta in educational psychology. He started teaching in Hong Kong Polytechnic University in 1994. He taught occupational therapy and ergonomics. He was a founding member of the Hong Kong Ergonomics Society in 2000 and rose up the ranks to become President of the Society in 2011 and 2013. He was a council member of the Occupational Safety and Health Council of Hong Kong for 6 years during which time he was Chair of the Research Committee of the Council[125]. Although he had not used the Strain Index before this case, he gave evidence that, with his experience, he would be able to work with and interpret the Strain Index[126]. 56.I have no hesitation in accepting both Ms James and Professor Chan as experts whose opinion can be of assistance to me in this case. 57.The following definition appears from the Strain Index:
58.Appendix A to the Stain Index contains a “User’s Guide for the Stain Index” which is set out in the appendix to this judgment. It was not disputed that, according to Step 5 of the User’s Guide for the Stain Index:
59.There was very little agreement between the experts andsubstantial disagreement. The only areas of agreement were:
60.The following table shows the difference between the 2 experts in their assessment, based on the Strain Index, of the risks posed by SX in present case:
61.The major difference between the 2 experts arises from their different assessment of the value to be assigned for the task variable called “Duration of Exertion”. The difference between the experts on the task variable “Hand-Wrist Posture” and ‘Duration per Day” was less marked. Both experts assigned a value of 6 to the task variable “Intensity of Exertion”, which is the most critical variable with increasing levels of intensity of exertion implying increasing levels of strain on the distal upper extremity[134]. Both experts also assigned a value of 3 to the task variable “Efforts per Minute” and a value of 1 to the task variable “Speed of Work”. 62.The experts’ differences also stem from 5 areas of disagreement, which are set out in the “Joint Note on Areas of Disagreement of the Parties’ Ergonomic Experts”[135]. These areas of disagreement are:
63.It is expressly stated in the Strain Index:
64.The following publications also show that the SI methodology has been used for homogeneous jobs, and not heterogeneous jobs:
On the other hand, other studies on single task manufacturing processes have provided additional evidence of the Strain Index’s external validity and predictive validity: “Predictive Validity of the Strain Index in Manufacturing Facilities” (Rucker & Moore, 2002)[139] and “Predictive Validity of the Strain Index in Turkey Processing” (Knox & Moore, 2001)[140]. 65.It is the defendant’s case that[141]:
66.The plaintiff’s case is that SX can be considered as a monotask because:
The plaintiff also relied on the extract from “Reviews of Human Factors and Ergonomics” (Garg & Kapellusch, 2011), under Example 1: Flywheel Subassembly[144] to demonstrate the correct application of the Strain Index to a task which involved a number of different movements of both hands:
Table 4.9. Strain Index (SI) Ratings, Multipliers, and Overall Score for Example 1
67.In the “Joint Note on Areas of Disagreement of the Parties’ Ergonomic Experts”[145], Ms James stated that SI methodology was not designed for multi task jobs. For this reason, the task of SX and the task of non-surgical extraction were considered separately rather than together for the analysis. Further modification, such as the approach used by Professor Chan, to the methodology would render it invalid. In the same Joint Note, Professor Chan stated that the SI method is useful for describing the potential effects of the risks associated with the job on a cohort of workers, but not the risks on a worker who performs the job. Furthermore, the Strain Index method was designed for homogenous work rather than heterogeneous work involving many work steps and procedures, such as that of a dentist. It was, therefore, unsuitable for assessing the plaintiff’s occupational risks without modifications. 68.In evidence in chief[146], Ms James stated that Professor Chan seemed to have used parts of the Strain Index methodology, but other parts were from elsewhere, without any literature in support. She agreed with the statement that the Strain Index methodology is useful for the potential risks associated with the job on a cohort of workers but not the risks on a single worker who performs the job, and she explained that she looked at it as a cohort of workers doing the same sort of task for the same amount of time, in the same manner, and that is why she looked at videotapes of other dentists. She also stated that the Strain Index methodology accommodated, to some degree, the heterogeneous nature of the task of SX because, even though the tasks were slightly varied, the dentist was still holding instruments, manipulating them within a patient’s oral cavity: it was all similar work and was not different enough that it would warrant not using the Strain Index methodology. She disagreed with Professor Chan that one should divide the task of SX into subtasks. When one does so, one begins to minimise the amount of time spent in each sub task. When you look at them separately, there is no good way to bring them back together as a whole. It was not possible, using our current methods that are validated, to analyse each and every subtask and then summate them to produce a SI score. Later on in her evidence she explained this further in these terms:
Ms James said that she followed the statements in the Strain Index that “[at] this time there is no proposed method for multiple task analysis. Currently, each task of a multitask job can be analysed separately by considering duration of task per day”, to separately analyse the multi task in the present case, being surgical extraction and regular extraction, as the Strain Index method did not tolerate mixing of tasks because the mathematics behind it had not taken that into consideration. Her SI score for non-surgical extraction was 13.5 and for SX was 54. To mix a task with a high SI value with a task with a low SI value would reduce the overall risk and mask the risks that arise from the task with the high SI value. Nothing in the Strain Index allows one to mix 2 different tasks together and come up with a risk per day formula. Ms James did not agree with the approach of Professor Chan to average the percentage maximum voluntary contraction (“MVC”)[148] because when one averages the highest and the lowest it puts everything at a sort of medium-range which is contrary to the statement in the Strain Index that “[if] the distal upper extremity is somewhat analogous to the low-back, it is suspected that the hazard potential of the job is primarily mediated by peaks stresses, not time-weighted or some other averaged value”. 69.Under cross examination, Ms James would not agree, and would not say, that the variation is that great, between different parts of the task of SX, when the dentist is manipulating the dental tool within the oral cavity. Sometimes the dentist used greater force than other times, but the motions and the activities were very, very similar[149]. Ms James explained that there was some confusion between jobs and tasks but that the Strain Index was primarily focusing on a task; for example, there could be different types of tasks for a machine operator[150]. Although the work of dentists is quite complex, in that the dentists were gripping tools and manipulating them in a person’s mouth, the work required quite stereotypical motions and exertions[151]. She agreed that dental work involved multiple tasks and that is why she separated SX and nonsurgical extractions as being 2 different types of tasks: to break down SX into multiple tasks would produce the smallest multiplier which was not what the Strain Index intended. She did not agree that SX ought to be treated as a multitask by itself which may be broken down into subtasks. The task is the work product, the subtask is not the work product: what one analyses is the work product or the work process: in this case, the surgical extraction. The work process is not cutting the gum or drilling the tooth, the work product or process is the whole task which is SX[152]. Professor Chan had no precedent to rely on to modify the test set out in the Strain Index. By straying from the methodology, he could not apply the results produced by the Strain Index[153]. She had not previously applied the Strain Index to dental work but had applied it to the work of a gastroenterologist performing colonoscopies[154]. 70.In his evidence in chief, Professor Chan stated that according to what he saw in all the papers on the Strain Index, homogeneity of the task refers to very, very, homogenous work, and the repetitiveness is very high, such as a work cycle of 30 seconds. Everyone was doing that for the whole day: we are talking about maybe thousands of repetitions which is notapplicable to the SX performed by the plaintiff[155]. In cross examination, Professor Chan was referred to the extract from “Reviews of Human Factors and Ergonomics” (Garg & Kapellusch, 2011), under Example 1: Flywheel Subassembly[156] and asked the following questions:
71.In the Strain Index methodology, the terms “cycle” and “cycle time” referred to the exertional cycle and average exertional cycle time, respectively. The duration of recovery per cycle is equal to the exertional cycle time minus the duration of exertion per cycle[159]. I am not persuaded that the Strain Index can only be applied to monotask jobs with a short cycle time measured in seconds and not minutes or tens of minutes. Certainly no literature has been cited to me containing such a limitation on monotask jobs. On the contrary, the articles relied upon by the defendant included “Predictive Validity of the Strain Index in Manufacturing Facilities” (Rucker & Moore, 2002)[160] in which the authors collected exposure data for 10 jobs at a hose connector manufacturing plant and for 18 jobs at a chair manufacturing plant. The work involved included furniture assembly work, foam trimming work, wheel assembly work, and the work of a press operator[161]. All these jobs were described as single task jobs[162]. Although there was no discussion of the length of the cycle time of these various jobs, the description of these jobs suggests to me that the cycle time was not limited to a short cycle time measured in seconds, and not minutes or tens of minutes. Further support for my conclusion that the Strain Index can be applied to monotask jobs with long cycle times can be found from the following extract from Reviews of Human Factors and Ergonomics, Garg and Kapellusch, 2011:
72.I prefer the evidence of Ms James that the Strain Index methodology accommodated, to some degree, the heterogeneous nature of the task of SX because, even though the tasks were slightly varied, the dentist was still holding instruments, manipulating them within a patient’s oral cavity: it was all similar work and was not different enough that it would warrant not using the Strain Index methodology. Her opinion is supported by the extract from “Reviews of Human Factors and Ergonomics” (Garg & Kapellusch, 2011), under Example 1: Flywheel Subassembly[164] and by the article, “Predictive Validity of the Strain Index in Manufacturing Facilities” (Rucker & Moore, 2002)[165], which I have just referred to. 73.I also accept the opinion of Ms James in preference to the opinion of Professor Chow that one should not divide the task of SX into subtasks. As Professor Chan himself accepted, there is no literature to support his approach[166]. I prefer the opinion of Ms James that one should not divide the task of SX into subtasks because, to do so would minimise the duration of exertion for each subtask, which would attract a much lower multiplier than if one were to assess the duration of exertion of the task as a whole. The opinion of Ms James in this regard is supported by the extract, that was relied upon by the defendant, from “Reviews of Human Factors and Ergonomics” (Garg & Kapellusch, 2011), under “Future Research” and “Estimating Stresses: Complex Jobs”:
Whilst modifications to the strain index have been suggested to cater for multi tasks, unless and until such modifications are scientifically validated, including Professor Chan’s modifications, I am not prepared to accept his opinion and assessments based on his modifications. As Ms James said in her evidence, Professor Chan’s modifications are untested in practice, unsupported by the literature and unvalidated by peers[168]. 74.The remaining areas of disagreement are:
75.As I do not accept the opinion of Professor Chan that the Strain Index is unsuitable for assessing the plaintiff’s occupational risks without modifications, I need not consider Disagreement 3, namely, whether the methodology adopted by Professor Chan is valid and reliable. 76.I turn to consider Disagreement 2, namely, whether the methodology adopted by Ms James is valid and reliable. In the “Joint Note on Areas of Disagreement of the Parties’ Ergonomic Experts”[169], the disagreement between the parties is expressed as follows:
77.Ms James detailed her assessment and computations in her 1st expert report[172] to which she attached her worksheet[173] which is reproduced below: Strain Index Worksheet – Yeung Lai Ping Surgical Extractions (SX) A) Intensity of Exertion
B) Duration of Exertion
C) Efforts Per Minute
D) Hand/Wrist Posture
E) Speed of Work
F) Duration Per Day
78.It was not disputed that some of the variables were measured whilst others were estimated. Intensity of Exertion was estimated, Duration of Exertion was measured, Efforts per Minute was measured, Hand/Wrist Posture was estimated, Speed of Work was estimated, and Duration of Task per Day was measured[174]. 79.The plaintiff’s case was that:
80.The defendant’s case was that:
81.My conclusions on Disagreement 2 are as follows. 82.The criticism that Ms James’ observation of a Caucasian female dentist in Raleigh, North Carolina, was meaningless and misleading is completely unfounded. As she explained in her evidence, she did so primarily to understand the tools that were used and to become familiar with them: she had not collected any data during that session: she did not actually observe her perform a procedure or analyse her, she analysed the videos[177]. Likewise, the criticism of the photo-based tool[178] is unwarranted. No measurements were made during this exercise and there was no reason to require validation of the photo-based tool. Ms James relied most heavily on the videos which was just supplemented by the photo tool and the information from the plaintiff[179]. 83.However, in assessing Hand/Wrist Posture, which was not as significant as Intensity of Exertion or Duration of Exertion, Ms James relied more on the photo-based tool and the Skype interview as it was difficult to see the hand posture on some of the videos she had observed[180]. The further criticism made on the photo-based tool and the Skype interview with the plaintiff was that the photo-based tool required the plaintiff to estimate, from her memory, the number of times that she adopted a certain posture and carried out certain acts within a minute and that any recollection by the plaintiff, who had left the dental profession more than 12 years ago, must be doubtful. I have already found the plaintiff to be a frank and candid witness[181]. Although I was not satisfied that her memory of some of the conversations she had had was reliable[182], I am satisfied that her recollection of the number of times she adopted a certain posture and carried out certain acts within the stated period was sufficiently reliable to be used by Ms James. During cross-examination, Ms James, an experienced ergonomist with 23 years of experience, said that the plaintiff had done this task enough, and long enough, that she felt comfortable with the information she gave to Ms James about hand posture. Ms James would ask a worker to describe for her what they did and the postures they used: if they had any doubt at all, then she would say that their account was not reliable; but the plaintiff was very sure of what she did, and the way she did it, and the methods that she used, and Ms James felt very comfortable that her account was reliable[183]. The plaintiff had performed SX hundreds of times prior to the occurrence complained of and I am satisfied that, even after 12 years, her recollection of the number of times that she adopted a certain posture and carried out certain acts within the stated period was reliable. Ms James explained in her report[184] that as hand or wrist postures progressively deviate beyond a neutral range to extremes, they are graded as “fair”, “bad”, and “very bad” and that the multiplier is selected accordingly. She prepared a table in her report showing the approximate percentage of a working day that was employed adopting a particular wrist posture, based on which she rated the overall risk of the hand wrist posture as bad, which attracted the corresponding multiplier of 2. Other than complaining that she was making an assessment of the heterogeneous job as a homogenous job, it was not suggested that this assessment, based on the photo-based tool and the Skype interview, was wrong or wrongly made[185]. Ms James explained that some of the postures were good and some of them were very bad and that she tried to come up with the posture that was most representative of the posture across the entire task and she came up with an overall riskof the hand wrist posture as “bad”[186]. As I have already found that the photo-based tool and the Skype interview communicated reliable information to her, I find that Ms James properly applied the methodology set out in the Strain Index to correctly assign a multiplier of 2 for Hand/Wrist Posture. 84.I turn to consider the criticisms levied at Ms James regarding her assessment of the Intensity of Exertion. In her evidence in chief, she said she assessed the Intensity of Exertion of the task of SX, from the time the patient came in until the time the patient left, to be hard and she explained that, as per the methodology in the Strain Index, the ergonomist has to look across the entire task and determine the Intensity of Exertion that best describes the entire task. In this case, she found the Intensity of Exertion to be light for some of the task, some she found to be somewhat hard, and some she found to be near maximal. According to the methodology, where there is a range of Intensity of Exertion across a task, one has to choose the one that best represents the task as a whole, which she did through observing videotapes of the task as well as interviews and discussion with the plaintiff[187]. 85.The defendant complained that Ms James adopted the Borg Scale, which the defendant submitted was subjective, as compared with the other method of assigning a rating for Intensity of Exertion by assessing the percentage maximal strength, which Professor Chan did. Whilst the Borg Scale is a subjective measure of a person’s perceived exertion, I cannot understand why Ms James is being criticised for using the Borg Scale when the Strain Index expressly permits the use of the Borg Scale to assign rating criteria, as per the User’s Guide which is appended to this judgment. Ms James explained that one can either use the Borg Scale or the percentage of maximal strength, or even assign the rating criterion by using the Perceived Effort which is set out to the right of the Borg Scale in the User’s Guide. She determined the Intensity of Exertion according to the Borg Scale through observation of the task. Research has shown that a trained ergonomist’s estimation of that is better than force matching, and better then asking workers to just tell them what that force is[188]. I accept her evidence and find that she properly used the Borg Scale to correctly assign a rating criterion of the Intensity of Exertion and that she properly applied the methodology set out in the Strain Index to correctly assign a multiplier of 6 for Intensity of Exertion. I do not accept the criticism being levied that, without the dentist involved describing to Ms James how much force he or shewas using, any estimation as to whether the exertion is hard or not was unreliable. 86.Substantial criticism was made of Ms James’ reliance on videos from other dentists. It was suggested that the work environment of the SX, the type of drill used, and the background of the dentist that was shown in the videos was unknown, and that some of the videos were demonstrations to students instead of ordinary surgery. I accept the evidence of Ms James that she was actually looking at the amount of time that force was being exerted divided by the amount of time for that entire piece of video and it did not matter what type of drill was being used. The Strain Index was workplace-independent. Further, it did not matter for this analysis what the background of the dentist was. As the exercise was for a cohort of dentists, not an individual, she looked at a number of videos not just one. There may be less force from an experienced dentist, but then the timeframe is shorter; a less experienced dentist may exert more force over a longer period of time: so the overall ratio would not change. This evidence answers the complaint made by the defendant that the surgical action period measured from the 5th video was 17.77 minutes, out of which the exertion time was 14.12 minutes[189], which was very different from the 35 to 50 minutes the plaintiff required for SX with 20 to 30 minutes involving “drilling with bur on vibrating handpiece”[190]. 87.The demonstrations were performed on live patients and they were actual patient extractions. For most of the videos, the dentists were talking while they were working. Ms Jamessaw very few instances where there were large pauses between what they were doing. Where there were pauses or where there were inconsistencies, she deducted that time so that it was more of a pure measure of the actual task[191]. 88.Complaint was also made that there was no information on the dentists shown on the videos: whether they were similar in background to the plaintiff or whether they were representative of members of the dental profession, especially Hong Kong dentists. I discount this complaint and accept the evidence of Ms James that the way a dentist works and the way teeth are extracted does not vary that much from country to country and that the same risk could apply to any dentist of any experience of any race working in any dental environment[192]. 89.The general complaint that was made about the use of videos by Ms James is unsubstantiated. On the contrary, it is well acknowledged that:
It was not possible to videotape the plaintiff performing an SX so many years after the matters complained of. Professor Chan based his assessment on a simulation rather than a video of an actual SX on a live patient. The parties could have cooperated to obtain videos of actual SX being performed on live patients by a cohort of dentists in Hong Kong, and they could have agreed a selection of such videos to be used by Ms James and Professor Chan for their respective assessments. As this was not done, the best evidence available for the assessment using the methodology of the Strain Index were the videos used by Ms James. 90.Her use of the video showing the use of hammer and chisel to carry out the extractionwas criticised for being irrelevant to the task of SX using surgical drills. However, Ms James explained that she referred to this particular video as an illustrative and working example of the methodology she applied in ascertaining Duration of Exertion and Efforts per Minute when she prepared her report TJ-5[194], which was a step-by-step explanation of the methodology she had applied in her original report TJ-1[195]. She did not use the videos showing the use of hammer and chisel when she prepared TJ-1 and when she compiled her worksheet[196] showing the duration of exertion as being 9.17 minutes, out of a total observation time of 12.17 minutes, which produced a percentage of 75.3%[197]. 91.The specific complaint was made that Ms James set out in her report the analysis in relation to the 5th video only, that she did not do the same for the other videos so that the court has no way of verifying what her analysis might have been of those videos, and whether they were consistent with her analysis of the 5th video. Ms James has set out a methodology very clearly in TJ-5[198]. Professor Chan could have applied the same methodology on the other videos relied upon by Ms James to demonstrate inconsistency. He did not do so. As Ms James rightly complained, no one asked her to produce the raw data and her working notes for the other videos[199]. I am not at all impressed by this specific complaint that has been made. 92.Duration of Exertion and Efforts per Minute are measured values. Ms James was criticised for adopting the definition used by the authors of “Reviews of Human Factors and Ergonomics” (Garg & Kapellusch, 2011), that “Each time a worker grasps an object, regrasps an object, or substantially increases the force required while grasping an object, an exertion has occurred.”[200] Ms James give evidence that she saw a great deal of manipulation of the tools and movement of the tools. There was a lot of grasping and movement of the tool during the videos. Although she will not calculate every second that the tool was held, an effort was made when it was moved and that is what she was counting: every time one has to activate the muscles, an effort is made and every time there is effort, there is an exertion. Holding something for a prolonged period of time would not necessarily be cause for effort, or increase in effort. But the act of moving a tool itself, with resistance, as was the case in these videos, there would be effort required because there was resistance inside the mouth. Sometimes there was added force, sometimes it was low and sometimes it was high. Whether it was a light or heavy exertion, it was still an exertion. It is the cumulative effect of all the exertions. The Intensity of Exertion has a separate multiplier. The Duration of Exertion is a measure of what percentage of time one’s hands are actively exerting some effort, regardless of the level. Ms James disagreed with the suggestion that, from watching the video, it was actually very difficult for one to tell when an exertion had occurred, not to mention counting them. She said that she was able to see very clearly when an exertion was made take the time of that exertion, and then, when she was measuring the efforts per minute, to be able to count them. She had no problem doing that.[201] I accept and prefer the evidence of Ms James on these matters. I do not accept the definition of Professor Chan that an exertion is measured for Duration of Exertion and Efforts per Minute only when it reaches rating 2, i.e. somewhat hard[202], which is unsupported by any literature that has been produced. 93.The biggest difference in the multipliers chosen by Ms James and Professor Chan was in respect of the multiplier for Duration of Exertion. Professor Chan’s multiplier was 0.5 and Ms James’ multiplier was 2. I questioned Ms James about this:
94.I accept the evidence of Ms James and I find that she properly applied the methodology set out in the Strain Index to correctly assign a multiplier of 2 for Duration of Exertion and a multiplier of 3 for Efforts per Minute. 95.There was little dispute about the task variable, Speed of Work. The multiplier of 1 applies whether one is working at an extremely relaxed pace, or taking one’s own time, or whether one is working at a normal speed of motion[206]. Ms James gave evidence that this is one of the estimated variables which she determined through watching the videos and also confirming with the plaintiff that they were representative of the speed at which she worked[207]. I accept the evidence of Ms James and I find that she properly applied the methodology set out in the Strain Index to correctly assign a multiplier of 1 for Speed of Work. 96.There was a substantial dispute over the task variable, Duration of Task per Day, the subject of Disagreement 4: “What is the workload basis upon which the SI scores are calculated”, which I turn to consider.
97.The defendant’s case is:
98.The plaintiff’s case is:
99.This very substantial dispute does not, however, translate into a substantial difference in the multiplier chosen for Duration of Task per Day[211]: Ms James’ multiplier was 0.75 (based on 2 to 4 hours of SX per day) and Professor Chan’s was 0.5 ((based on 1 to 2 hours of SX per day). This was brought out in the course of the questions that I had put to Ms James:
100.Consistent with my findings in §§19-20 above, I am prepared to accept that the data used by Professor Chan to assess the Duration of Task per Day as being more reliable than the data used by Ms James. I, therefore, conclude that the proper multiplier to adopt for Duration of Task per day is 0.5. This will reduce the Strain Index score, as per my findings and conclusions that I have reached above, to 36:
101.I turn to deal with Disagreement 5:
102.It is the plaintiff’s case that:
103.It is the defendant’s case that:
104.Disagreement 5 is easy to resolve. In the absence of scientific literature to support Professor Chan’s theory of triangulating results from the Strain Index and HAL-TLV, I have little difficulty in preferring the evidence of Ms James. She explained that the HAL-TLV assessment is supposed to be used on jobs that are monotask and take place for more than 4 hours a day, such as the work on an assembly line where workers are repeatedly doing the same thing over and over again for more than 4 hours a day. The HAL-TLV assessment requires the measurements for the task to be taken immediately after performing the specific activity, which Professor Chan did not do. Research has shown that agreement between the Strain Index and HAL-TLV is only about 54 or 57%. It was so weak that, in terms of triangulation, Ms James could not see the benefit of such an exercise. She applied the Strain Index because it was the gold standard. She did not think that another method was necessary.[219] 105.In conclusion, I find that the correct Strain Index Score that Ms James ought to have arrived at in this case is 36. Whilst not as alarming as her score of 54, nor the score of 81 in respect of thetask of flywheel subassembly[220], it is substantially above the Strain Index Score of 7. The authors of the Strain Index have stated that Strain Index Score “greater than or equal to 7 are probably hazardous.”[221] A Strain Index Score of 36 must raise serious concerns on the part of a prudent employer for the safety of his employees carrying out the tasks which was the subject matter of the assessment using the Strain Index. 106.However, I accept as entirely correct the submissions of the defendant that:
I would add that, as I had stated in §89 above, the parties could have cooperated to obtain videos of actual SX being performed on live patients by dentists in Hong Kong, and they could have agreed a selection of such videos to be used by Ms James in Professor Chan for their respective assessments. As this was not done, the best evidence available for the assessment using the methodology of the Strain Index were the videos used by Ms James. Although this was the best available in the present case, and sufficiently reliable for me to rely upon to make my findings in this case, an assessment based on videos of actual SX being performed on live patients by a cohort of dentists in Hong Kong is likely to be more reliable. Causation, foreseeability, breach of duty and remoteness 107.Be that as it may, the Strain Index Score of 36 is evidence to support my further findings on causation that I make as follows. 108.I have already found that the plaintiff performed 3 SX on the morning of 30 October 1999; that, in the course of those extractions, her right wrist gradually became more painful; and that she suffered excruciating pain in her right wrist which was caused by an attrition fracture of the TFC of her right wrist that occurred towards the end of the third SX that she was performing that morning[223]. 109.I repeat what I stated in §37 above that Professor PC Leung and Dr Yeung were in agreement that the plaintiff’s TFC damage could be the result of both structural predisposition and repeated work-related strenuous mechanical stresses. They would not be able to affirm that her wrist problem was solely predisposed by the structural abnormality. They both felt that repeated mechanical stresses on the wrist and TFC could cause chronic damage, particularly so, because of the structural variance of the plaintiff’s right wrist[224]. 110.Based on the medical evidence and based on the ergonomic evidence, from which I have concluded that the Strain Index Score in this case is 36, I find, further, that the plaintiff suffered the attrition fracture of the TFC of her right wrist because her right wrist had been weakened and was made vulnerable from the excessive SX that she was assigned to perform from the end of September 1998 to the beginning of October 1999, when she had to take sick leave because of the pain in her right wrist. After her return to work from sick leave, her right wrist continued to be weakened and vulnerable such that when she performed the third SX on the morning of 30 October 1999, she suffered an attrition fracture of the TFC of her right wrist. 111.I refer to my findings in §20 that the plaintiff’s heaviest workload, in terms of SX per session, was during the months of late September to November 1998 being 2.16, 2.15 and 2.0 SX per session for the 3 months. The workload lessened in the subsequent months from December 1998 to July 1999, but the number of SX per session still ranged from a low of 1.54 in May 1999 to a high of 1.81 in February 1999. It appears from the tables produced by Dr Yau Chuen Kam that, from October 1998 to September 1999, the plaintiff had performed 710 SX whilst, over the same period, Dr Sunny Tsui had only performed 479 SX[225]. 112.As I noted in §19 above, in her 2nd supplemental witness statement, the plaintiff produced a table of SX per work session during the period she worked in NDH from the end of September 1998 to October 1999[226]. The average number of SX per session was 1.68[227]. However, I found that the average number of SX per session from the end of September 1998 to October 1999 was 1.65[228]. I also noted in §19 above that Dr Yau Chuen Kam[229] gave a breakdown of the work carried out by the plaintiff and Dr Sunny Tsui[230], and a breakdown of the number of non-surgical extractions and SX performed by the plaintiff and 4 comparable dental officers[231]. I quote from the defendant’s Closing Submissions[232] as follows:
113.The plaintiff’s average number of SX per session from the end of September 1998 to October 1999 was 1.65. The plaintiff was assigned to perform more than twice as much SX per session as Drs Ko/Tong and Dr Lui, and almost twice as much SX per session as Dr Cheung. I reject the defendant’s submission that the plaintiff’s workload was not excessive because the other doctors had correspondingly more non-surgical extractions to perform whilst the plaintiff had correspondingly less nonsurgical extractions to perform. The Strain Index Score for SX was 36, whilst the Strain Index Score for non-surgical extractions, as assessed by Ms James, was only 13.5[233]. Performing non-surgical extractions does not ameliorate the risk of injury from performing excessive SX. 114.Dr Cham Kwong Man accepted in the course of cross examination that she was aware of the major study, based on 20 years or more of literature on musculo-skeletal disorders and workplace factors, that was called NIOSH[234] for short, and that she had a soft copy of that study in her office. She was also aware of the material contained in chapter 5 and 5a of that study[235] on work-related hand/wrist muscular skeletal disorders (including carpal tunnel syndrome)[236]. 115.I agree entirely with the plaintiff’s closing submissions that:
116.In addition to the literature identified in §44, which is quoted above in the preceding paragraph, in her report TJ-1[238], Ms James also identified the paper published in 1987 by Silverstein et al. that found that carpal tunnel syndrome has a high correlation with highly repetitive jobs that require high amounts of exerted force. They found that reducing the force or the repetition appeared to reduce the occurrence of carpal tunnel syndrome. Repetitive motions were particularly problematic when performed using awkward hand/wrist postures. I accept the evidence of Ms James that, at the time of this occurrence, “we knew that there were certain risk factors that would contribute to musculoskeletal disorders such as carpal tunnel syndrome. … the evidence was readily available at that time”[239]. 117.I find that the defendant knew or ought to have known that repetitive strenuous dental activities related to wrist movements could cause upper limb musculo-skeletal disorders in dental personnel including carpal tunnel syndrome. I find that it was reasonably foreseeable that the assignment of an excessive amount of SX to a dentist to perform would create an unreasonable risk of injury and damage to the wrist of the dentist assigned to carry out that work. 118.I conclude from the evidence I have reviewed in the preceding paragraphs that the plaintiff was assigned an excessive of amount of SX to perform, being twice and more than twice the amount of SX that 4 other dentists had to perform during the relevant period from the end of September 1998 to the beginning of October 1999. I find that the defendant was in breach of its duty of care to the plaintiff by assigning to her an excessive amount of SX to perform during the period in question. 119.I have found in §48 above that, if damage to the wrist is reasonably foreseeable, reasonable foresight of the extent of damage is not required for liability to attach in negligence; neither is reasonable foresight of TFC damage to the wrist required, nor is reasonable foresight of the precise manner of its infliction required for liability to attach in negligence. Accordingly, I also find that it is not a defence to assert that TFC damage was not reasonably foreseeable and too remote a type of damage for the defendant to take reasonable precautions against. 120.I repeat my findings on causation in §110 above and my findings on causation in §§40-44 above, which apply equally to this ground of liability, namely, the assignment of an excessive amount SX to perform from the end of September 1998 to the beginning of October 1999. 121.For these reasons, I also find the defendant liable in negligence on the alternative ground advanced by the plaintiff, namely, that she was assigned an excessive amount of SX to perform during the period in question. 122.The following table sets out in summary form the various heads of loss and damage claimed by the plaintiff and the parties’ differences in respect of these claims:
(odd cents removed in sub totals for clarity) 1The Plaintiff’s sub-total after deducting Employees’ Compensation, less 15% tax (645,120 x 0.85= 548,352) Pain Suffering and Loss of Amenities (“PSLA”) 123.I refer to §§2.8 to 2.14 of the joint report of Professor PC Leung and Dr Yeung, which I have set out in §31 above. I also refer to §§32 and 33 above. 124.After the injury to her right wrist on 30 October 1999, light duty was recommended for her. In January 2000, she was transferred to look after school children in the MacLehose Dental Centre. Her main duty was to supervise the work of dental therapists and to assist them in difficult extractions. 125.In November 1999, she sought treatment in QEH. Owing to her persistent pain, MRI of the right wrist was performed in August 2000. She was diagnosed to be suffering from right CTS and right wrist TFCtear. She was treated with splintage, local steroid injection, and physiotherapy. Because of persistent numbness, weakness and pain around the right wrist, a surgical operation was carried out in August 2002 to release the carpal tunnel entrapment, repair the TFC, and relocate the dislocated extensor carpi ulnaris tendon. After the operation, she used a splint for her right wrist and tried to use her left hand to extract teeth. However, this resulted in pain at the ulnar aspect of the left wrist and occasional numbness of the left hand. 126.She was first examined by Professor Leung in December 2002, who reported that her right wrist problems were about 50% resolved, but that, onstrenuous supination/pronation, pain was still felt over the ulnar side of the wrist. 127.The plaintiff was examined by Dr Yeung in August 2003. At that time, she still had pain at the ulnar aspect of her right wrist, weakness of the right hand, and also numbness of the right thumb and fingers at the radial side. Dr Yeung was of the opinion that she had not yet reached maximum medical improvement at that stage. 128.In August 2004, a medical board recommended her to be invalidated because of her right wrist problem and she has ceased work as a dentist since then. 129.In September 2009, the plaintiff was again examined by Professor Leung. Further improvement was noted, and numbness over the right hand was only occasionally felt. The wrist pain would come on strenuous wrist motion, particularly on twisting. Since she stopped her dental practice in August 2004, her own assessment was that she was somewhat 70% recovered. 130.Both orthopaedists agreed that the plaintiff suffered from:
131.After examining the plaintiff in September 2009, Professor Leung was of the opinion[240] that she was no longer suffering from any CTS of the right or left wrists. He was also of the view that that carpel tunnel release was unlikely to give rise to recurrence. 132.Both orthopaedic experts agreed that the prognosis of the TFC injury was worrying. Little further improvement could be expected, though the plaintiff’s condition would not deteriorate either. She had reached maximum medical improvement and no further treatment is indicated. 133.The sick leave granted to the plaintiff before her retirement was considered by both orthopaedic experts to be appropriate. They also agreed that the plaintiff could not resume work as a dentist. 134.I have reviewed the authorities cited to me by the parties on damages for PSLA, including Yip Mau Leung v. University of Hong Kong[241], Bhim Bahadur Rai v. Fung Shing Hong[242], and Ho Kwai Kong v. Cheung Kok[243]. I agree that the closest authority with respect to the plaintiff’s right wrist injury is Cheng Yuk Chun v Winson Cleaning Service Company Limited & Ors[244]. The learned judge appears to have misnamed the triangular fibrocartilage complex in the wrist as the triradiate cartilage in the hip but it is reasonable clear that he was referring to the wrist and not to the hip. In Cheng Yuk Chun in Lee Yau Wai v Yeung Kam Wing[245] Master Marlene Ng, as she was then, gave the following summary of his considerations for his award of PSLA:
135.In David John Slater v. Commissioner of Police[246], I held that awards for damages for PSLA in personal injury cases falling within the Serious Injury category would start at $530,000 as at July 2017. In July 2007, when Cheng Yuk Chun v Winson Cleaning Service Company Limited & Ors. was decided, awards for damages for PSLA in personal injury cases falling within the serious injury category started at $390,000[247]. The increase in the level of awards in the 10 years from 2008 up to the current level of awards has been to the order of about 36%. Applying the same percentage of increase to the award of $300,000 would produce an award of about $400,000 today. 136.However, it should be noted that the award in Cheng Yuk Chun v Winson Cleaning Service Company Limited & Ors was not only for the wrist injury but also for the plaintiff’s adjustment disorder with depressed mood. On my reading of the said judgment, I am of the view that the award of $300,000 could be apportioned, as to $225,000 thereof, in respect of the wrist injury; and as to $75,000 thereof, in respect of the psychiatric condition. I would award the plaintiff in the present case, damages for PSLA in the amount of $300,000 for the damage that she suffered to her right wrist. 137.The plaintiff also claims damages for PSLA for “depression and stress disorder requiring continuing psychiatric care”[248]. The defendant has denied the claims for psychiatric injury, only allowing $300,000 as damages for PSLA and denying the claims for pre-trial and post-trial cost of psychiatric treatment[249]. It was submitted in the defendant’s closing submissions that the claim for damages for psychiatric and psychological injuries ought not to be entertained as no expert evidence had been adduced in support thereof[250]. 138.I had refused the plaintiff’s late application for leave to adduce expert psychiatric evidence. At the last Check List Review Hearingon 2 September 2016, I reiterated that I was not permitting the plaintiff to adduce expert psychiatric evidence[251]. These proceedings were started in 2002 and the need for such evidence was apparent as early as January 2003, when the plaintiff started to consult a psychiatrist[252]. The reasons I relied upon, on 15 September 2014, for my refusal to allow the plaintiff’s late application to adduce expert evidence from Professor Cheung Lim Kwong on issues of liability, applied equally to my decision to refuse to allow the plaintiff’s late application to adduce expert psychiatric evidence:
I had refused to allow the plaintiff’s late application to adduce expert psychological evidence in Fung Chun Man v. Hospital Authority & Or. for similar reasons:
139.In the absence of an admissible expert report from a psychiatrist, the plaintiff relies on the plaintiff’s treating doctors’ reports[255] and her own evidence[256] in support of claims for damages for “depression and stress disorder requiring continuing psychiatric care”. The reliance on treating doctors in personal injury claims was commented upon by Deputy High Court Judge Gill in Siu Leung Shang Peter v. Chung Wai Ming[257]:
A more fundamental objection to the use of treating doctors’ reports is that opinion evidence is only admissible with leave of court. I addressed the court’s role in controlling the receipt of expert evidence, in Fung Chun Man v. Hospital Authority & Or.[258], in these terms:
140.In Hung Sau Fung v Lai Ping Wai[259] I explained that:
141.I re-iterated the Court’s role and the exercise of its case management powers in this regard in my recent decision in Tang Tak Ping v. Kai Shing Construction Co. & Ors.[260]:
142.In her decision in Lau Mei Wa v. Li King Yin & Or[261], MasterMarlene Ng, as she then was, made it clear that treatment records were insufficient and that the court required assistance from expert psychiatric evidence:
143.More recently, Deputy High Court Judge, Marlene Ng, as she then was, reiterated the same principles in Pak Siu Hin Simon v. J V Fitness Ltd[262]:
144.I have no hesitation in concluding that the plaintiff became extremely unhappy about the loss of her career as a dentist, and suffered much anxiety and distress arising from the need to change her career and the uncertainties she faced going forward. However, in the absence of admissible psychiatric opinion evidence, I am unable to find that she suffered from a recognizable psychiatric illness. The recommendations in the occupational therapists’ reports of Ms Alice Tsang and Dr Cecilia Li that the plaintiff should seek help from a psychologist or psychiatrist and their reference to the treating doctors’ diagnosis[264] do not convert the treating doctors’ reports into admissible psychological or psychiatric expert opinion evidence[265]. Specifically, the administration by Dr Cecilia Li of the Beck Depression Scale, which is a self rated questionnaire, and the resulting assessment that, although she “scored 29/103 from the Beck Depression Scale ... showing that her present state was stable”, the plaintiff “was found to have some psychological problem”[266], does not constitute admissible psychological or psychiatric expert opinion evidence. However, even without such evidence, I am able to take into account her emotional distress, unhappiness and anxiety that she suffered to increase the award of PSLA that I make in this case to $325,000. Damages for loss of congenial employment 145.The claim for loss of congenial employment is well established as “… a separate head of damage and an award may be made when the Plaintiff has had to give up a job which he enjoyed and which gave him satisfaction and/or status.”[267] This is an award of general damages and is distinct from an award of special damages for past loss of earnings and an award for damages for future loss of earnings and/or damages for loss of earning capacity. The following cases illustrate the awards that have been made in Hong Kong under this head of claim:
146.The plaintiff’s career has been ruined and she is saddened by the fact that she will never be able to return to the practice of dentistry[268]. I find that the plaintiff has suffered a real loss arising from the abrupt end to her career as a dental professional which she had pursued for 8 years. She had completed her Master’s degree and aimed to become a prosthodontist, a goal that has been denied to her. I award $150,000 as damages for loss of congenial employment. Discount for pre-existing vulnerability 147.The defendant seeks a discount of 75% on account of the plaintiff’s double vulnerability: 1mm ulnar variance in the right wrist and the greater variance and greater propensity to develop carpal tunnel syndrome in the left wrist[269]. I can deal with this issue very briefly. 148.I remind myself of the principle that the assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the plaintiff would have succumbed to a stress-related disorder in any event[270]. I also remind myself of the 3 scenarios set out in Chan Kam Hoi v Dragages Et Travaux Publics[271]:
In Yu Wai Kan v. Law Cho Tai[272], Master Marlene Ng, as she then was, explained:
149.Is there a is a strong possibility in the present case that that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state? In the context of the present case, some other event would be the continued practice of dentistry pursuant to which the plaintiff would need to undertake repetitive strenuous dental activities using her hands and wrists which could cause upper limb musculo-skeletal disorders, including carpal tunnel syndrome. 150.It was submitted on behalf of the plaintiff that she was not going to be pursuing these strenuous dental activities for the rest of her working life: she was going to become a prosthodontist, which meant doing sophisticated repairs, not doing the strenuous day-in and day-out two or three SX, or whatever was assigned to her[273]. 151.It was the plaintiff’s evidence that after she received her Master’s degree in Prosthetic Dentistry in 1996, she had been planning to pursue a specialist pathway. As part of the requirement for the exit examination in that speciality, she had to work in a recognised institution such as the Hospital Authority and the Government Dental Service or under a qualified trainer for at least 3 years or until she had sufficient clinical experience. Although she had published 2 academic papers in the Journal of Oral Rehabilitation, she could not realise her aspiration to gain her specialist qualification in Prosthetic Dentistry because of the injury to her right hand in 1999.[274] By October 1999, she had almost completed 3 years of clinical practice after her graduation with a Master’s degree in Prosthetic Dentistry. 152.Dr Yau Chuen Kam produced a booklet called “The Guidelines for Accreditation and Training in Prosthodontics”[275]. The defendant has conceded that the plaintiff was at level 5 of the sequence of training set out in the guidelines, having completed her Master’s degree[276]. The guidelines set out final levels of training as follows:
153.I accept the plaintiff’s evidence that she wished to become a prosthodontist and that she was well on her way towards completing her training programme. I find, on a balance of probabilities, that, if she had not suffered the TFC injury to her right wrist in October 1999, she would have qualified as a prosthodontist and worked as such no later than 3 to 4 years from October 1999. I refer to §§2 to 4 and 11 above. I had found that, prior to working at NDH, the plaintiff did not experience any numbness or other symptoms in her right hand and wrist, either from dental work or from any other cause in the course of almost 7 years of practice as a dentist from February 1990 to September 1998[278]. I also find that, if she had not suffered the TFC injury to her right wrist in October 1999, there was only a remote possibility that her continued practice of dentistry in the 3 or 4 years after October 1999 would have brought about the plaintiff’s present state. The work of a prosthodontist does not require her to undertake repetitive strenuous dental activities using her hands and wrists which could cause upper limb musculo-skeletal disorders, including carpal tunnel syndrome, and would not have posed any risk to her pre-existing vulnerability. Accordingly, I do not discount the damages I award on account of a pre-existing vulnerability. 154.The differences between the parties under this head of claim are set out below:
155.I award the sums of $13,378, $7,630 and $5,810 in respect of medical and therapy expenses, travelling expenses, and costs of care. The latter amount is agreed. I do not award the expenses incurred in obtaining psychiatric and psychological treatment and the travelling expenses incurred in respect of such treatments, as these claims are not supported by admissible expert evidence. 156.By far, the greatest claim under this head is in respect of past loss of earnings. 157.The plaintiff give evidence about the steps she took to find alternative employment[279]. The plaintiff retired from the civil service in August 2004. In between September 2005 and late 2008, she pursued a Masters’ course in translating and interpreting (MATI) at the Hong Kong Polytechnic University. She found herself unable to do translation work full-time, as a result of pain and discomfort in her right hand and wrist caused by computer work and hand writing. 158.She then started a part-time Master of Arts in Biblical Studies (MABS) course in September 2009. She carried on with the MABS course until mid-July 2011, without graduating, when she switched to study for a full-time Master of Divinity (MDiv) course commencing September 2011. 159.In January 2014, without graduating from the MDiv course, she switched back to the MABS course, which she completed in November 2015. She then continued with the MDiv course in January 2016, which she would have completed in November 2017. 160.I do not pay any heed to the plaintiff’s complaint that she was psychologically impaired[280] as no admissible expert evidence was adduced to support such claim. I also do not accept her claim that she was unable to perform translation work because of pain and discomfort in her right hand and wrist. In September 2009, when she had started her part time MABS course, she had been re-examined by Professor PC Leung who noted further improvement. Numbness over the right hand was only occasionally felt, and the wrist pain would only come on with strenuous wrist motion, particularly on twisting. Computer work, and handwriting, does not require strenuous wrist motion and twisting. Professor PC Leung was also of the opinion that she was no longer suffering from any CTS of the right or left wrists.[281] 161.The plaintiff pleads her claim in the Updated Amended Revised Statement of Damages as follows:
162.The defendant’s case on pre-trial loss of earnings is as follows:
163.The first difference between the parties is in respect of the plaintiff’s claim for $190,864, being no-pay sick leave from August to October 2002. I accept the defendant’s evidence and calculations and assess this claim in the sum of $107,443 (rounded off) as follows:
164.The second difference between the parties is in respect of the plaintiff’s claim of $12,261,356 for loss of earnings from 24 August 2004 to 24 December 2016 (82,847 x 148 months)) less 15% salary tax. Again, I accept the defendant’s evidence and calculations and assess this claim (up to end December 2016) in the sum of $10,569,266 (rounded off) as follows:
I divide the sum of $10,569,266 by 148 months to produce a monthly loss of basic earnings, net of tax, in the sum of $71,414 (rounded off) to assess the additional loss from January 2017 to March 2019 in the sum of $1,928,178, net of tax, which produces the sum of $12,497,444 ($10,569,266 + $1,928,178), being pre-trial loss of basic monthly earnings from September 2004 to March 2019. My assessment of the additional loss from January 2017 to March 2019 in the sum of $1,928,178, net of tax, is not final and can be varied in accordance with the liberty to apply I have granted in §194 below. 165.The main difference between the parties is the notional salary of $21,500 that the defendant avers the plaintiff should have been earning since September 2004. I agree with the plaintiff’s submission that she should be allowed sometime retrain herself in a different discipline and to find suitable employment in such discipline. As she had been invalidated in August 2004, she had passed the deadline in which to apply to enrol in a suitable course in her selected discipline. I also find that it was reasonable for her to take a full-time two-year course to retrain in her selected discipline. I also find that she ought reasonably to have found gainful employment in her selected discipline by September 2007 and that she ought to have earned a median salary of $21,500 from September 2007 up to March 2019 based on published statistics set out as follows:
166.On the above basis, I make the following assessment and award for pre-trial loss of earnings up to March 2019, using the defendant’s evidence and calculations as follows: Notional salary for the period from September 2004 to December 2016, after deduction for notional salary tax (see Table 4 [A1/11/238] for notional tax calculations): [($21,500 x 148) – $537,285] = $2,644,715. I divide the sum of $2,644,715 by 148 months to produce a monthly notional salary, net of tax, in the sum of $17,870 (rounded off) to assess the notional salary from September 2007 to March 2019 in the sum of $2,483,930 ($17,870, x 139 months), net of tax. This assessment is not final and can be varied in accordance with the liberty to apply I have granted in §194 below. 167.The plaintiff has offered to deduct the sum of $2,998,496 that she received as her pension up to December 2016. The defendant’s evidence and calculations establish that the pension to be deducted should be in the lesser amount of $2,866,959 (rounded off) calculated as follows:
However, I do not accept the plaintiff’s concession which is wrong in law[289]. Where loss of pre-retirement income is in issue, pension payments received from the employer before what would otherwise have been the date of retirement are not to be taken into account in assessing the plaintiff’s loss: the pension payments that the plaintiff has received were funded by contributions from her salary towards the pension fund when she was employed and the payment of pension to her represents the fruit of her contributions – these pension payments are in the same position as insurance money[290] and are not to be set off against the claim for loss of earnings[291]. I decline to deduct the pension payments that the plaintiff has received to reduce a claim for pre-trial loss of earnings. 168.My assessment of pre-trial loss of earnings from September 2004 to March 2019 is as follows: Pre-trial loss of earnings: ($107,443 + $12,497,444 – $2,483,930) = $10,120,957 This assessment in the sum of $10,120,957 is not final and can be varied in accordance with the liberty to apply I have granted in §194 below. 169.The final claim under this head is in respect of costs of re-education in the amount of $177,974. The defendant does not dispute that, in principle, the plaintiff is entitled to claim reasonable expenses incurred for the purpose of training/education, so as to enable her to find an alternative job. However, the defendant avers that it ought not to be responsible for all the expenses she has incurred in the various courses that she had taken and then abandoned and then retaken[292]. I agree and I only allow and award the sum of $90,000 as the pre-trial cost of re-education, being about half of the amount claimed by the plaintiff. 170.The differences between the parties under this head of claim are set out below:
171.I award the sum of $6,310 but do not award the rest of the expenses claimed, being expenses to be incurred in obtaining psychiatric and psychological treatment and the travelling expenses to be incurred in respect of such treatments, as these claims are not supported by admissible expert evidence. 172.The claim for loss of earning capacity is agreed in the sum of $142,800. 173.The plaintiff pleads her claim for future loss of earnings in the Updated Amended Revised Statement of Damages as follows:
174.The defendant’s case on future loss of earnings is as follows:
175.The major dispute between the parties under this head of claim is the likelihood of the plaintiff being promoted to the rank of Senior Dental Officer (“SDO”) if she had not suffered the TFC injury on 30 October 1999. Although the plaintiff does not have to prove on the balance of probabilities that she would be promoted, the plaintiff must prove as a matter of causation that she has a real or substantial chance of being promoted, as opposed to a speculative one[297]. The court will look at statistical information on the proportion of workers in the particular occupation or work place who go on to obtain promotion, and when such promotion usually takes place, i.e. the average ages for promotion in the particular occupation or workplace. The plaintiff’s personnel records would need to be reviewed and the particular characteristics of the plaintiff would be taken into account in determining his or her chances of promotion and when this might have arisen. 176.In considering this issue, I have reviewed the evidence[298] and I have noted the following matters:
177.I find that the plaintiff’s prospects of promotion to SDO were slim. She has failed to prove that she enjoyed a real or substantial chance of being promoted after 20 years’ service. Given the evidence that I have considered in sub-paragraphs (b) to (d) above, the fact that Dr Sunny Tsui was promoted after 12 years of service[300], that Dr Wilkie Lui was promoted after 16 years of service[301], that Dr Cham Kwong Man was promoted after this 16 years of service[302] and that Dr Yau Chuen Kam was promoted after 8 years of service[303] does not persuade me that the plaintiff enjoyed a real or substantial chance of promotion to SDO after 20 years of service. 178.The plaintiff has put forward an alternative claim on the basis that she would leave the public service and enter into private practice, if she was not promoted when she reached the age of 50. If she had not suffered the TFC injury, I am not satisfied that she would have left public service and entered into private practice even if she had not been promoted. As is apparent from the table compiled by Ms Chui Oi Yee[304], out of 21 dental officers appointed at about the same time as the plaintiff, 19 have remained in the public service. It is not known whether the remaining two have entered private service. 179.Except in respect of the deduction for pensions to be received, I accept the defendant’s submissions on how the claim for future loss of earnings ought to be assessed. Accordingly, I make the following assessment. 180.If the plaintiff had not suffered the TFC injury and had retired from the dental service, her monthly salary would have been $99,205 (MPS 44) in March 2017; and her annual income, after deduction for tax liability[305] ought to have been:
181.I find, based on Census & Statistics figures, that the plaintiff’s notional salary would have increased to $26,000 per month at present (p. 10 of AUARSD [A1/11/214]); and her annual notional income, after deduction for tax liability[306], would be:
182.According to the memorandum from the Director of Accounting Services dated 13 July 2016[307], the plaintiff was receiving monthly pension of $24,972.15; and I find that her annual pension income, after deduction for estimated tax liability[308], would be: ($24,972.15 x 12) – $16,503.19 = $283,163 (rounded off). The plaintiff has not made any concession about the deduction of such pension payments from her claim for future loss of earnings. For the reasons set out in §167 above, and I decline to make this deduction. 183.The plaintiff was born on 19 December 1966[309] and is now 52 years old. According to Table 8 of the Personal Injury Tables Hong Kong 2016, the appropriate multiplier, adopting a discount rate of 1%[310] for a future loss not exceeding 10 years, for a female aged 52, who would have retired at the age of 60, is 7.63. 184.Accordingly, I assess and award damages for future loss of earnings as follows: ($1,022,522 – $258,960) x 7.63 = $5,825,978.This assessment in the sum of $5,825,978 is not final and can be varied in accordance with the liberty to apply I have granted in §194 below. 185.The plaintiff pleads her claim for future loss of pension in the Updated Amended Revised Statement of Damages as follows:
186.The defendant’s case on future loss of pension is as follows:
187.There is no dispute regarding the plaintiff’s length of pensionable service at retirement age of 60, the pension factor of 1/675, and the formula for calculating annual pension. The pension calculator and the pension benefits formulae can be found on the Civil Service Bureau website[315]. 188.An injured plaintiff who has to retire earlier than planned and is prevented from continuing to earn and to make contributions to an occupational pension, or an injured plaintiff who can continue to work but is earning less and thus unable to make a higher earning related pension contribution, may make a claim for loss of pension benefits. An award of damages for loss of pension benefits is not an award for future loss: the award is compensation for lost earnings that have been deferred to retirement age[316]. 189.The court uses a multiplier/multiplicand approach to assess loss of pension benefit from the date of retirement to the date of natural death when the pension payments would have stopped. The capital sum thus obtained must be discounted for accelerated receipt, for example, a plaintiff who is aged 50 at the date of trial and who would have retired at 60, but for the accident, would need to discount the capital sum, assessed by using a multiplier/multiplicand approach, to take into account accelerated receipt of 10 years. These complex calculations, i.e. the first calculation using the multiplier/multiplicand approach to assess loss of pension benefit from the date of retirement to the date of natural death, and the second calculation of discounting, for accelerated receipt, the capital sum, obtained by using the multiplier/multiplicand approach, have been built into the Chan Tables in Tables 20 to 26[317]. Unlike the other multiplier tables, the multipliers in these tables get larger as the plaintiff’s age at trial gets closer to his retirement age. This is because the discount for accelerated receipt becomes less. 190.As I stated in §167 above, where loss of pre-retirement income is in issue, pension payments received from the employer before what would otherwise have been the date of retirement are not to be taken into account in assessing the plaintiff’s loss. However, this rule does not apply to claims for loss of post retirement pension benefits: insofar as the plaintiff is actually receiving a pension and continuing to receive a pension after his retirement date, had he not suffered the accident, to that extent, he has not lost pension benefits. In such a case, the plaintiff has not lost all the future pension, only part of it: it is a deduction of part pension against full pension, not a deduction of pension against lost earnings[318]. 191.Applying these principles, I make the following assessment:
192.In Chan Pak Ting v. Chan Chi Kuen (No.1)[321], I explained that the multiplier tables do not take account of other risks and vicissitudes of life, other than mortality, such as the possibility that the plaintiff would have ceased to earn for periods of time due to ill-health, or loss of employment, or may cease work for periods of time to care for children or other dependents[322]. The actuarial tables published by the UK Government’s Actuary Department, known as the Ogden Tables, discuss these contingencies and, in Tables A to D, provide calculations to be made of the appropriate discount for contingencies[323]. Although the validity of Tables A to D is not universally accepted, they can provide a useful starting point for the court to consider in assessing an appropriate discount in respect of contingencies other than mortality. However, I need not embark upon this exercise as the defendant has not asserted that an additional discount ought to be made on account of contingencies other than mortality[324]. 193.Accordingly, I assess and award future loss of pension benefits in the sum of ($559,368 – $283,163) x 17.26 = $4,767,298. This assessment in the sum of $4,767,298 is not final and can be varied in accordance with the liberty to apply I have granted in §194 below. 194.I grant liberty to the parties to apply to vary my awards for pre-trial and future loss of earnings and loss of pension benefits, net of tax, on account of the rise in salary of a dental officer, and the tax on such increased salary and pension benefits, and of the plaintiff’s notional salary from January 2017 to March 2019, and the tax on such increased salary and pension benefits. Deduction of employees’ compensation 195.There is no tax payable on the award of employees’ compensation and the plaintiff’s deduction of 15% on account of tax is erroneous[325]. The full award of employees’ compensation in the sum of $645,120 must be deducted. 196.The usual order for interest that is made on judgments for damages for personal injuries is as follows:
As the loss has not yet been incurred, interest is not awarded on damages for future loss or expenses. Interest is also not awarded on damages for loss of earning capacity which is an award of damages in respect of future loss. These awards are advance payments for future loss. 197.The unusual feature about this case is that it was started in 2002, the writ having been issued on 25 September 2002. The trial only commenced on 12 December 2016, more than 14 years later. The defendant asserts that I should disallow interest for those periods of time when the plaintiff was guilty of delay. 198.The principles governing the award of interest are clear. It is provided in section 48 (1) and (2) of the High Court Ordinance, Cap. 4, that, in relation to a judgment given for damages for personal injuries or death, there shall be included in any sum for which judgment is given simple interest, at such rate and for such period, as the court thinks fit, on any part of the damages awarded, unless the court is satisfied that there are special reasons to the contrary. The onus is on the defendant to establish special reasons to deny the award of interest. Watkins LJ explained the rationale for denying interest in Birkett v Hayes[326]:
As long ago as 1970, Lord Denning said in Jefford v. Gee[327]:
Morland J in Read v Harries denied interest for 3 years out of the 7 year pre-trial period and said[328]:
199.In Spittle v. Binney[329] the Court of Appeal held that the trial judge was right to reduce his award of interest by 2 years, on account of unreasonable delay, in that case which took 7 ½ years to come to trial. Other English cases[330] in which interest has been denied for certain periods of time or where the interest rate has been reduced include Socimer International Bank Ltd v. Standard Bank London Ltd[331], Nash v. Southmead HA[332], Fairhurst v. St Helens HA[333], Eagle v. Chambers[334] and Adcock v. Co-Operative Insurance[335]. 200.Hong Kong cases[336] in which interest has been denied for certain periods of time or where the interest rate has been reduced include Wong Suk ha v. Li Tsun Wing[337], Ng Yat Ying (an infant) v. Law Ming Kwan[338]and Lo Yuk Sui v. Fubon Bank (Hong Kong ) Ltd. & Anor[339]. 201.I agree with the editors of Kemp & Kemp that “the court will take a broad brush approach in reducing interest where there is delay by a claimant”[340] Indeed, Ng J. adopted a broad brush approach in Lo Yuk Sui v. Fubon Bank (Hong Kong ) Ltd. & Anor[341]. 202.I have considered the parties’ respective submissions, written and oral, on the exercise of my discretion to allow disallow interest[342]. In the defendant’s Summary of Quantum Assessment dated 10 March 2017, the defendant did not advance any new submissions and only reiterated its submissions in §§24-26 and 51-58 of the defendant’s reply submissions. The plaintiff’s response dated 17 March 2017 to the defendant’s Summary of Quantum Assessment contained 51 paragraphs of written submissions on the issue of interest[343] and went outside the ambit of the leave I had granted to the plaintiff[344]. I disregard these additional written submissions. 203.It appears from the Court file that the action was dormant from 10 November 2003 to 7 September 2011:
The order made on 22 September 2003 was an order made at a Check List Review directing that witness statements be exchanged and giving further directions for the conduct of the action. A Check List Review was also fixed to be heard on 10 November 2003. Pursuant to the order of 22 September 2003, the plaintiff served, albeit late, her written statement dated 13 December 2003[345]. The steps taken in May and June 2009 were in relation to the plaintiff’s solicitors application to cease to act which was granted. 204.It appears from the Court’s correspondence file that the Check ListReview heard on 10 November 2003 was adjourned to 20 February 2004. The latter date was vacated later and the Check List Review was refixed to be heard on 23 April 2004. However, on 30 March 2004, the Check List Review, fixed to be heard on 23 April 2004, was again vacated and the parties were asked to send representatives to fix the adjourned Check List Review. This was never done. The next Check List Review was fixed many years later on 17 February 2012. 205.The steps taken by the parties between 9 October 2003 to 7 September 2011 are detailed in the defendant’s “Chronology of Major Events of Delay”[346] which I have reviewed and rely upon. It has not been suggested that the chronology is inaccurate. I have also had regard to the plaintiff’s chronology that was handed up to me in the course of final submissions on 2 March 2017[347]. 206.After having regard to the court file, the court’s correspondence file and the parties’ chronologies, I conclude that there has been substantial inactivity in the prosecution of this action from 2005 at least until September 2011 when the plaintiff took steps to obtain expert evidence[348]. In the course of final submissions on 2 March 2017 I remarked:
207.Was such a delay justified? The plaintiff puts forward the following reasons to try to explain the very substantial delay:
208.The plaintiff cannot rely upon the defendant’s delay or refusal to disclose documents as an excuse for her very substantial delay in prosecuting this action. She was under a duty to pursue her action speedily and diligently. Even if the defendant had unreasonably refused to provide the requested documents, it was the plaintiff’s duty to seek the court’s assistance by way of suitable applications for discovery. The plaintiff could not simply wait and do nothing. 209.In the absence of admissible expert evidence in support, I am unable to rely on any psychiatric or psychological impediment the plaintiff may wish to rely upon to excuse her failure to prosecute the action diligently. The plaintiff was certainly able to give detailed and cogent instructions which enabled her 1st witness statement dated 13 December 2003 to be made and served. 210.The plaintiff’s lack of funds, difficulties in instructing solicitors to represent her, and the fact that she was not eligible to qualify for legal aid until January 2009 do not constitute sufficient reason to justify the very substantial delay in prosecuting the action from 2005 to August 2011. 211.I am satisfied that special reasons have been established for me to depart from requirement in section 48 (1) and (2) of the High Court Ordinance to award interest for the full pre-trial period in this case. In the exercise of my discretion, I award interest as follows:
212.A summary of my award is set out below:
213.I award damages to the plaintiff in the total sum of $20,810,161 ($475,000 + $9,592,775 + $10,742,386) and interest to be calculated. This award is not final and can be varied in accordance with the liberty to apply I have granted in §194 above. 214.I make a costs order nisi that the defendant pays the plaintiff’s to be taxed, if not agreed, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations. 215.I cannot conclude this judgment without expressing my gratitude to counsel for the assistance I received.
Mr Ruy Barretto SC and Mr Douglas Jones, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the plaintiff Mr Simon K C Lam, instructed by Department of Justice, for the defendant APPENDIX A – A USER’S GUIDE FOR THE STRAIN INDEX This guide describes how to perform the five steps associated with using the Strain Index. Page 1 describes the rating criteria and the measurements and calculations for the six task variables. The numerical ranges for assigning rating criteria for the subjective variables are only guidelines. Page 2 includes a table for entering your data and guides you through calculating an SI score. Step 1: Data Collection 1. Intensity of Exertion is an estimate of the strength required to perform the task one time. Guidelines for assigning a rating criterion are presented in the following table. Write the most appropriate rating criterion into the data table.
A Percentage of maximal strength B Compared to the Borg CR-10 scale 2. During of Exertion is calculated by measuring the duration of all exertions during an observation period, then dividing the measured duration of exertion by the total observation time and multiplying by 100.
3. Efforts per Minute are measured by counting the number of exertions that occur during an observation period, then dividing the number of exertions by the duration of the observation period, measured in minutes.
4. Hand/Wrist Posture is an estimate of the position of the hand or wrist relative to neutral position. Guidelines for assigning a rating criterion are presented in the following table. Enter the result in the data table.
^ Derived from data presented in Stetson et al. 5. Speed of Work is an estimate of how fast the worker is working. Guidelines for assigning a rating criterion are presented in the following table. Enter the result in the data table.
^ The observed pace is divided by MTM-1’s predicted pace and expressed as a percentage of predicted. See Barnes. 6. Duration of Task per Day is either measured or obtained from plant personnel. Enter the result in the data table. Step 2: Assign Ratings Values Use the table below [the] find the rating values for each task variable. Select the appropriate entry for each variable, then find the corresponding rating value on the same row at the far left.
Step 3: Determine the Multipliers
^ If duration of exertion is 100%, then efforts/minute multiplier should be set to 3.0. Enter Your Data Here:
Step 4: Calculate the SI Score Insert the multiplier values for each of the six task variables into the spaces below, then multiply them all together.
Step 5: Interpret the Result Preliminary testing has revealed that jobs associated with distal upper extremity disorders had SI Scores greater than 5. SI Scores less than or equal to 3 are probably safe. SI Scores greater than or equal to 7 are probably hazardous. The Strain Index does not consider stresses related to localized mechanical compression. This risk factor should be considered separately. [1] [T/Day1/91-Day2/86] “T” is a reference to the Transcript Bundle. [B/1-37, 38-80, 203-220] “B” is a reference to the Witness Statements Bundle. [2] [T/Day3/1-35] [B/81-85, 221-228] [3] [T/Day3/51-107] [B/98-108] [4] [T/Day4/6-26] [B/91-97] [5] [T/Day4/28-38] [B/229-258] [6] [T/Day4/38-50] [B/132-135] [7] [T/Day4/50-97] B/171-181] [8] [T/Day5/1-15] [B/136-170] [9] [T/Day4/97-105] [B/182-202] [10] [T/Day4/105-110] [B/119-123] [11] [T/Day5/33-Day6/95] [C/134-159G (“TJ-1”), 192, 192A-192L (“TJ-2”), 208-223 (“TJ-3”), 224-253 (“TJ-4”), 286-299 (“TJ-5”)] “C” is a reference to the Experts’ Reports Bundle. [12] [T/Day6/95-Day7/121] [C/160-191 (“CC-1”), 192, 193-207 (“CC-2”), 254-273 (“CC-3”), 274-285 (“CC-4”)] “CC-5” and CC-6” were prepared to assist the parties and the court to understand the changes that were made by Professor Chan to his earlier reports [T/Day7/39(16)-(17)]: Defendant’s Bundle/Tab2/combined version of CC-1, CC-2 and CC-4 with tracked changes (“CC-5”) and Defendant’s Bundle /Tab 4/combined clean version of CC-1, CC-2 and CC-4 (“CC-6”), as explained in the letter from the defendant’s solicitors dated 16 December 2016. [13] [C/1-6, 7-13, 14-20, 300-303] [14] [C/21-35, 36-39] [15] [C/40-53, 304-317] [16] Bundles D, E, F, G, H, J, K, L, N, P1, P2, Q, R and Defendant’s Bundle [17] [T/Day3/81(17)-(24), 82(21)-83(5)] [18] See §13 of defendant’s (“D’s”) Opening Submissions [19] [B/39-43] [20] See §§12 - 15 below. [21] [T/Day2/82(1)-83(12)] [22] [E/1-16] [23] [B/234 §17] [T/Day3/101(10)-(13), 103(10)-(13), 105(21)-107(4)] [24] [E/9] [25] [T/Day1/113(8)][Day2/81(1)-(12)] [26] [T/Day1/99(5)-100(1)] [27] [T/Day1/100(19)-102(23)] [28] [T/Day2/18(1)-(6), 19(11)-(23)] [29] [T/Day1/104(24)-105(18), 107(14), 110(8)] [30] [T/Day1/100(13), 111(1)-(5)] [31] [T/Day1/115(8)-(25)] [32] See §26 below. [33] [B/105 §21] [34] One unit is 10 minutes: [T/Day3/17(23)-(24)] [35] [E/6] [36] [B/5 §§17-18] [37] [B/208 §§23-24] [T/Day2/7(11)-8(25), 11(21)-(25), 14(20)-(22)] [B/82 §6, 222 §4] [T/Day3/29(17)- 32(10)] [B/133 §5] [T/Day4/42(7)-43(1), 48(12)-49(18)] [38] [F/256] [39] [F/257] [40] [F/252] [41] [B/100-101 §§6-8] [42] [T/Day1/113(22)-(23)] [T/Day3/93(7)-(13)] [B/144: from September 1998 to January 2000, Dr Sunny Tsui had 2,049 consultations while the plaintiff had 331 consultations] [43] [T/Day1/143(10)-(20)] [44] [B/203, 211] [45] [B/218 at §3(c)] [46] [T/Day1/118-138] [47] [B/229-258] [T/Day4/28 – 38] [48] [B/136, 144-146] [49] [T/Day5/1-15] [B/136-170] [50] Appendix A at B/144 [B/140 §12] [51] Appendix B at B/145-146 [B/140-141 §13] [52] [T/Day5/3(7)-5(7)] [53] [T/Day5/8(20)-9(7)] [54] [T/Day5/9(12)-(23)] [55] [B/146A] [56] [B/137 §4] [57] [B/144] [T/Day3/96(1)-(23)] One can see from the data set out in B/144 that §16 of Dr Sunny Tsui’s witness statement, in B/103, that he performed 80% of all referrals while the plaintiff performed 20% of all referrals, is incorrect. [58] [B/81-84] [T/Day3/3(5)-(8), 4(22)-5(4), 25(21)-26(25), 27(9)-28(5)] [59] [T/Day3/104(2)-105(14)] [60] [B/7 §28] [T/Day1/143(20)] [Day2/23(2)-(8), 25(8)-(25)] [61] An abnormal sensation such as tingling or numbness. [62] [B/106 §26] [T/Day3/79(10)-(14)] [63] [D/28] [64] [T/Day3/86(16)-87(15)] [65] [T/Day3/88(15)] [66] [B/9 §§37-38), /10 Table 3 /11 §41 /12-13 Table 4 /14 Table 5] [67] [B/9 §38] [68] [B/106 §26] [69] [T/Day3/91(1)-(15)] [70] [T/Day3/92(3)-(5)] [K/1A] [71] [B/20 §54] [B/206 §15] [T/Day2/24(1)-(20)] [72] [T/Day2/26(5)-(7)] [73] [B/91-97] [T/Day4/6(25)-7(10), 8(16)-(20), 10(9)-11(2), 15(7)-(16), 18(10)-(14), 19(5)-(25)] [74] [B/203 §16] [75] 1 SX on 27 October 1999 was later cancelled. [76] [J/59] [77] [T/Day2/34(3)-(10)] [78] [T/Day2/37(24)] [79] [T/Day2/49(1)-51(11)] [80] [B/206-207 §§16 -18] [81] [T/Day2/83(21)-84(3)] [82] [B/171-181] [83] [T/Day4/90(14)-92(12), 94(18)-95(14)] [84] [C/1-6, 7-13, 14-20, 300-303] [85] [C/21-35, 36-39] [86] [C/40-53, 304-317] [87] [C/42-44] [88] [C/29 at §6.5] [89] [C/44 at §3.2] [90] [C/44 at §3.3.1] [91] [C/44-45 at §3.3.2] [C/5 last paragraph] [92] [C/45 at §3.3.3] [93] [C/45 at §3.4] [94] [C/302 last paragraph] [95] [C/304-308] [96] [C/304 at §2.1] [97] [C/305 at §2.1] [98] [C/305 at §2.2] [99] [C/306-7 at §§3.4-3.6] [100] [C/31 at §7.4] [101] [C/306 at §2.4] [102] [C/307 at §4.1] [103] See §28 above. [104] See §37 above. [105] Bonnington Castings Ltd v. Wardlaw [1956] A.C. 613; Bailey v. Ministry of Defence [2009] 1 W.L.R. 1052; Williams v. Bermuda Hospitals Board [2016] A.C. 888;Clerk & Lindsell on Torts, 22nd Ed., at 2-32 to 2-34. [106] [1939] 1 KB 394 at 400-401 [107] See the Table under §27 above. NDH was closed because of a typhoon on 16 September 1999 and 25 September 1999 was a public holiday. [108] Hughes v. Lord Advocate [1963] AC 837 [109] [T/Day2/33(19)-48(2)] [J/59] [110] [T/Day2/35(19)-(23)] [111] [T/Day2/36(2)-(16)] [J/59] [112] [T/Day2/43(9)-(10), 44(12)-(13), 46(20)-(22)] [113] [T/Day2/49(3)-51(11)] [114] [T/Day4/61(4)-62(4)] [115] D’s Closing Submissions 27 §104 [116] Plaintiff’s (“P’s”) Speaking Note dated 1 March 2017 §10, Transcript of Closing Submissions at T/Day8/25A [117] [A1/168-169 §17A] [118] [B/19 §53] [119] [T/Day5/33-Day6/95] [C/134-159G (“TJ-1”), 192, 192A-192L (“TJ-2”), 208-223 (“TJ-3”), 224-253 (“TJ-4”), 286-299 (“TJ-5”)] [120] [T/Day6/95-Day7/121] [C/160-191 (“CC-1”), 192, 193-207 (“CC-2”), 254-273 (“CC-3”), 274-285 (“CC-4”)] [Defendant’s Bundle/Tab2/combined version of CC-1, CC-2 and CC-4 with tracked changes (“CC-5”) Defendant’s Bundle/Tab 4/combined clean version of CC-1, CC-2 and CC-4 (“CC-6”), as explained in the letter from the defendant’s solicitors dated 16 December 2016] [121] Her curriculum vitae can be seen in C/159A-159C. [122] [P1/255] [123] Ms James reviewed the research papers on the development of musculoskeletal disorders among dental professionals in §§13-18 of TJ1 at C/138-140. [124] [T/Day5/35(25)-37(25)] [125] [T/Day6/96(8)-(25)] His curriculum vitae can be seen in C/191-A to 191-K. [126] [T/Day6/111(13)-(19)] [127] [P1/259] [128] [P1/270] [D’s Final Submissions on 8 February 2017 at p.4 §12] [129] [C/192] [T/Day7/64(17)-65(12)] [130] Professor Chan [131] In respect of the assessment by Professor Chan, only the score for SX for the entire workday is quoted. His separate scores for SX and non-surgical extractions can be found under §32 of CC-6 [Defendant’s Bundle//Tab 4/combined clean version of CC-1, CC-2 and CC-4, as explained in the letter from the defendant’s solicitors dated 16 December 2016] [132] Ms James [133] In respect of the assessment of Ms. James, only the score for SX is quoted. Her score for non-surgical extraction can be found under §21 of TJ1 [C/142]. [134] [P1/260] [T/Day5/52(11)-(25), T/Day6/115(22)-(23)] [135] Tab 6 of P’s Opening Bundle. [136] [P1/265-266] [137] [P2/567] [138] [P2/549-552] [139] [Q/Tab 56] [140] [Q/Tab 57] [141] D’s Closing Submissions at §§20-21 [142] [T/Day7/99(20)-101(6)] [143] P’s Closing Submissions at §142 [144] [P2/536-538] [145] Tab 6 of P’s Opening Bundle at pp.2-3. [146] [T/Day5/80(25)-89(25)] [147] [T/Day5/90(15)-91(3)] [148] [CC-5 at p.5 Defendant’s Bundle/Tab2/combined version of CC-1, CC-2 and CC-4 with tracked changes] [149] [T/Day5/96(15)-98(10)] [150] [T/Day5/102(24)-103(4)] [151] [T/Day5/107(5)-(7), 110(5)-(7))] [152] [T/Day5/111(11)-(19), 112(20)-113(13), 114(12)-115(3)] [153] [T/Day5/121(3)-(11)] [154] [T/Day5/122(9)-(14)] [155] [T/Day7/28(2)-(11)] [156] [P2/536-538] [157] [P2/536] [158] [T/Day7/93(10)-96(16)] [159] The Strain Index at p.261 [160] [Q/Tab 56] [161] At Q/Tab 56 pp.632, 635-636. [162] At Q/Tab 56 pp.631, 638. [163] At P2/553. [164] [P2/536-538] [165] [Q/Tab 56] [166] [T/Day7/67(12)-(14)] [167] [P2/552] [168] [T/Day5/94(12)-(18)] [169] Tab 6 of P’s Opening Bundle at pp.3-6. [170] Ms James [171] Professor Chan [172] [C/140-143] [173] [C/157] [174] [T/Day6/21(11)-23(4)] [175] P’s Closing Submissions §§82-88 [176] D’s Closing Submissions §§24-48 [177] [T/Day5/50(4)-(14), 126(20)-129(16)] [178] [C/16/237A-AF] [179] [T/Day5/132(5)-(9)] [180] [T/Day5/65(4)-(24)] [181] §21 above [182] See §25 above. [183] [T/Day5133(4), 140(13)-(20)] [184] TJ-5 at C/289-290 [185] [T/Day5/144(10)-(15)] [186] [T/Day5/144(16)-(20)] [187] [T/Day5/48(20)-49(21) [188] [The Strain Index at P/260] [T/Day5/135(8)-138(9), T/Day6/75(14)-76(2), 10(11)-(24)] [189] [C/292§4(b)] [190] [B/5§21] [191] [T/Day6/5(1)-6(4), 6(22)-7(17), 8(8)- 9(9), 10(8)-(24), 12(6)-(10)] [192] [T/Day6/12(6)-(11)] [193] Extract from Reviews of Human Factors and Ergonomics, Garg and Kapellusch, 2011, at P2/553 [194] [C/287] [195] [C/134] [196] [C/157] [197] [T/Day6/35(10)-40(7)] [198] [C/287] [T/Day6/15(19)-16(2)] [199] [T/Day6/37(8)-(10)] [200] [P2/536] [201] [T/Day6/26(5)-35(9)] [202] CC-6 p.13 [203] As is clear from Ms James’ worksheet at C/157, the multiplier for Duration of Exertion is 2 when the percentage ranges from 50-79%. Ms James correctly assessed a multiplier of 2 in her worksheet. The multiplier of 3 appearing on the table in P’s Opening Tab 5, p.6 is a typographical error. The table interposed the multiplier for Duration of Exertion, which was 2, with the multiplier for Efforts per Minute, which was 3. [204] This is a typographical error. See the preceding footnote. Ms James’ calculation in C/157 is correct: 6 times 2 times 3 times 2 times 1 times 0.75 = 54. [205] [T/Day6/87(2)-88(8)] [206] [C/157] [207] [T/Day5/67(2)-(7)] [208] Joint Note on Areas of Disagreement of the Parties’ Ergonomic Experts: Tab 6 of P’s Opening Bundle at p8. [209] D’s Closing Submissions §§56-71 [210] P’s Reply Submissions at p.10-12 §34 [211] [C/157] [212] There was an error on the table in P’s Opening Tab 5, p.6 which interposed the multiplier for Duration of Exertion, which was 2, with the multiplier for Efforts per Minute, which was 3. [213] 36 is the correct Strain Index Score. [214] [T/Day6/83(12)-85(19)] [215] Joint Note on Areas of Disagreement of the Parties’ Ergonomic Experts: Tab 6 of P’s Opening Bundle at pp.8-9. [216] P’s Closing Submissions p.33 [217] P’s Reply Submissions p.12 [218] D’s Closing Submissions at p.20 [219] [T/Day5/97(4)-(23)] [T/Day6/74(13)-76(180) [220] See §66 above. [221] [C/269-270] [222] D’s Closing Submissions at p.21 [223] See §§28 and 39 above. [224] [C/306-7 at §§3.4-3.6] [225] [B/144] [T/Day3/96(1)-(23)] [226] [B/203, 211] [227] [B/218 at §3(c)] [228] See §19 above. [229] [T/Day5/1-15] [B/136-170] [230] Appendix A at B/144 [B/140 §12] [231] Appendix B at B/145-146 [B/140-141 §13] [232] At p.23 [233] §21 of TJ1 [C/142] [234] National Institute for Occupational Safety and Health: P1/271 [235] [P1/283, 284] [236] [T/Day4/89(4)-90(8)] [237] P’s Closing Submissions at pp.10-11 [238] [C/137] [239] [T/Day5/75(13)-(19)] [240] [C/45 §3.5.1]. [241] [2000] 3 HKLRD 198 [242] HCPI 776/2007, 17 September 2009 [243] HCPI 93/2002, 31 October 2002 [244] DCPI 629/2006, HH Judge Leung, 6 July 2007 [245] HCPI 281/2009, 29 March 2011 [246] HCPI 646/2012, 7 July 2017 [247] See the table on p. 65 in Personal Injury Tables Hong Kong 2016 which contains a revision of the level of PSLA awards taking into account the impact of inflation and deflation since 1996. [248] [A/177] [249] [A/208, 211, 225] [250] At p.35, §128. [251] Darts Recording on 2 September 2016 at 10:57:57 am. [252] [D/23] [253] HCPI 833/2002, 15 September 2014 [2014] 5 HKLRD 525 [254] HCPI 1113/2006, 24 June 2011 [255] Report of Dr Simon Siu dated December 2010: D/23-26. [256] [B55] [257] HCPI 43/2006, 16 March 2007 [258] HCPI 1113/2006, 24 June 2011 [259] [2012] 1 HKLRD 1 HCPI 204/2009 7 October 2011 [260] HCPI 539/2011, 6 February 2012 [261] HCPI 527/2011 13 July 2012 [262] HCPI 574/2014, 4September 2015 [263] The same quotation appears in §140 above. [264] It was noted in the joint occupational therapist report that “she was treated by a psychiatrist who was her friend and who did not charge her much”: C/112. [265] [C/54, 62, 69, 82, 83, 92, 93, 95, 110, 112] [266] [C/82, 83, 92] [267] Chan Yiu Ping v Mok Yuk Kwong & Ors HCPI 92/1998, Suffiad J, 3 July 2000 [268] [B/36 §101, 58 §46] [269] See §§31-38, 124-132 above. [270] The crumbling skull principle: see §42 above. [271] [1998] 2 HKLRD 958 at p. CACV 58/1997 11 November 1997 [272] HCPI 62/2010, 11 May 2011 [273] [T/Day8/56E-G] [274] [B/45-46 §14] [275] [B/147 – 169] [T/Day5/2(8)-3(6)] [276] [B/154-155] [T/Day8/58O-T] [277] [B/167-169] [278] Less the 2 years spent pursuing her Master’s degree. [279] [B/33-35 §§89-91, B/47-50 §§18-26] [T/Day2/61(6)-73(5)] [280] [T/Day2/65(16) 72(16-70)] [281] See §§129 and 131 above. [282] [A1/183-185] [283] Answer to Updated Amended Revised Statement of Damages [284] Answer to Amended Revised Statement of Damages [285] Defendant’s Summary of Quantum dated 10 March 2017 at p.1. I have deleted the 75% discount on account of pre-existing vulnerability that is contained in the defendant's calculations. [286] [A1/129] [287] Further revised to $21,500: A1/238. [288] [A1/129-130] [289] Cf. Hollywood Shopping Centre Owners Committee Ltd. v. The Incorporated Owners of Wing Wah Building Mongkok Kowloon CACV 185/2010, 4 August 2011,at §32: the Court of Appeal permitted a concession made by a party at trial to be withdrawn as it concerned a question of law. [290] Where the plaintiff can be shown to have paid or contributed to the cost of insurance against accidental personal injury and consequential loss, the benefit of such insurance is not deducted from the compensation award for the same injury and loss: Hussain v. New Taplow Paper Mills Ltd [1987] 1 WLR 336 and Hunt v. Severs [1994] 2 WLR 602. [291] Parry v. Cleaver [1970] AC 1, Smoker v. London Fire and Civil Defence Authority [1991] 2 AC 502, Longden v. British Coal Board [1998] AC 653 [292] [A1/131] [293] [A/191-192] [294] There has been a typographical error. This amount should be $283,162.61. [295] See preceding footnote. [296] Defendant’s Summary of Quantum dated 10 March 2017 at p.2. I have deleted the 75% discount on account of pre-existing vulnerability that is contained in the defendant's calculations. [297] Allied Maples Group Ltd. v. Simmons & Simmons (a firm) [1995] 1 WLR 1602 at 1614; Lai Jianxing v Sakoma (HK) Ltd [2012] 5 HKLRD 589 at pp.597-598 CACV 220 of 2011, 19 October 2012 [298] See witness statement of Chui Oi Yee (attaching with it an earlier witness statement of Choi Wai Sheung [B/182-202A] [299] Appendix to Ms Choi Wai Sheung’s witness statement [B/194] [300] [T/Day3/62(20-63(4)] [301] [T/Day4/29(16)-(21)] [302] [T/Day4/54(11)-(15)] [303] [T/Day5/13(6)-(18)] [304] [B/184] [305] Table 7 [A1/241] [306] Table 8 [A1/242] [307] [F/208] [308] Table 9 [A1/243] [309] [B/1] [310] This was wrongly stated to be 1.5% in AUARDS [A1/223]. [311] [A1/193] [312] This was omitted from the Defendant’s Summary of Quantum dated 10 March 2017 at p.2. It appears in A1/224. [313] See §§174 and 182 above. [314] Defendant’s Summary of Quantum dated 10 March 2017 at pp.2-3. I have deleted the 75% discount on account of pre-existing vulnerability that is contained in the defendant's calculations. [315] http://www.csb.gov.hk/english/retirement/185.html [316] Nizami v. London Management Clubs Ltd [1985] 1 WLR 784 [317] See Phipps v. Brooks Dry Cleaning Services Ltd [1996] PIQR Q 100 in respect of the corresponding Ogden Tables [318] Parry v. Cleaver [1970] AC 1, Smoker v. London Fire and Civil Defence Authority [1991] 2 AC 502, Longden v. British Coal Board [1998] AC 653 [319] Table 10 [A1/11/244] [320] Table 9 [A/11/243] [321] [2013] 1 HKLRD 634 [322] At §31. [323] 7th Ed., at §§ 26-44 [324] See Auty v. National Coal Board [1985] 1WLR 784 and the discussion in Kemp & Kemp Vol 1 at 11-030 – 11-035: R.123:May 2012. [325] See §§122 and 154 above. [326] [1982] 1 WLR 816 at 825 [327] [1970] 2 QB 130 at 151F [328] [1995] PIQR Q34 at Q34 [329] [1988] 1 WLR 847 at 860F [330] Including non-personal injury claims. [331] [2006] EWHC 2896 Comm [332] [1993] PIQR Q156 [333] [1995] PIQR Q25 [334] [2005] PIQR Q32 [335] [2000] Lloyd’s Rep IR 657 [336] Including non-personal injury claims. [337] HCPI 770 of 1995 [338] HCA 2495 & 2496 of 1977 [339] HCA 409/2005 19 December 2016 [340] Kemp & Kemp The Quantum of Damages Vol 1 at 21-031 (R.137: October 2015) [341] HCA 409/2005 19 December 2016 at §47. [342] Plaintiff’s Closing Submissions pp.69-76, defendant’s Reply Submissions §§24-26 and 51-58, [T/Day8/61-68] [343] From §7 – 58. [344] [T/Day8/69A-F] [345] [B/1] [346] Tab 4 in defendant’s Closing Submissions Bundle [347] [T/Day8/65I] [348] Defendant’s Chronology of Major Events of Delay p.9 [349] [T/Day8/63N-R] [350] [F/219] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCPI 833/2002