Ng Yuk Chun v. Austa Beauty Company Ltd t/a Pretty House Beauty Centre

DCPI 912/2021

[2024] HKDC 82

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 912 OF 2021

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JUDGMENT

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A.  OVERVIEW

1.The plaintiff (“P”) has commenced the present action against the defendant (“D”) to claim damages for the injuries sustained by her on 1 September 2020 at the beauty parlour (“the Beauty Parlour”) operated by D at 101-103, 1^st Floor, Citywalk 2, Tsuen Wan, New Territories, Hong Kong.

2.There is no dispute that P was at the material time a patron of D, receiving a beauty treatment (“the Beauty Treatment”) performed by Ms Yu Wing Yan (“Ms Yu”), a beauty therapist in D’s employment, with the use of a machine called ‘VSP 真空精鑽活膚儀’ (“the VSP Machine”) consisting of two parts, namely, the main body and a hand-held piece (“the Hand Piece”).

3.It is P’s case that the Beauty Treatment received by her on 1 September 2020 involved the motion of powerful suction on and around her eyelids with the purpose of clearing dead skin and black head, and discomfort had developed in her left eye afterwards (“the Incident”). P accordingly visited an ophthalmologist the next day, and diagnosed with macula edema in her left eye (“the Injuries”).

4.P claims that the Injuries were caused by the negligence of D and/or its employee, Ms Yu, and seeks damages against D for $427,041.49, together with interest as follows:

(1)	PSLA	$200,000.00
(2)	Pre-trial loss	Nil
(3)	Loss of earning capacity	$66,962.49
(4)	Special damages	$160,079.00
	Total	$427,041.49
		=========

5.D disputes both the happening of the Incident and the quantum as alleged and sought by P.

B.  SUMMARY OF P’s CASE

6.P opens her case contending that D was negligent in causing the Injuries in:

(1)  failing to adopt the appropriate method for the Beauty Treatment;

(2)  causing or allowing P to be subject to excessive force in her left eye;

(3)  failing to take any or any reasonable steps to avoid subjecting P’s left eye to unnecessary pressure in the Beauty Treatment;

(4)  failing to exercise any or any reasonable skills and/or care and/or competence in conducting the Beauty Treatment;

(5)  failing to make any or any appropriate assessment or take heed of the fact that the pressure on P’s left eye would cause injuries;

(6)  failing to explain to P the method of the Beauty Treatment and the potential risks arising therefrom;

(7)  exposing P to an unnecessary risk of injury which D knew or ought to have known;

(8)  failing to provide adequate training and/or supervision to Ms Yu in respect of the proper preparation and/or performance of the Beauty Treatment;

(9)  failing to devise a safe method for the Beauty Treatment to avoid injuries to P’s left eye;

(10)  failing to provide P with a competent beauty therapist for the Beauty Treatment; and

(11)  failing to provide adequate and/or sufficient instructions to Ms Yu in performing the Beauty Treatment.

7.Further or in the alternative, P contends that D should be vicariously liable for Ms Yu’s negligence committed in the course of her employment in:

(1)  failing to perform the Beauty Treatment in a competent and/or reasonably safe manner up to the standard of a reasonable and competent beauty therapist;

(2)  failing to manoeuvre the VSP Machine used in the Beauty Treatment in a competent or reasonably safe manner;

(3)  causing or allowing excessive force to be exerted on or around P’s left eye;

(4)  failing to sufficiently explain to P details about the Beauty Treatment and/or warn her of the potential risks arising therefrom;

(5)  failing to follow proper safety instructions (if any) for the Beauty Treatment;

(6)  failing to check or take heed sufficiently of the condition of P’s left eye during and/or after the Beauty Treatment; and

(7)  causing injuries to P’s left eye.

8.D denies breach of duty of care to P. In gist:

(1)  D’s defence is that Ms Yu did not touch P’s eyes, referring to the area below the eyebrows and above the cheeks, with the Hand Piece during the Beauty Treatment on 1 September 2020.

(2)  D submits that P fails to prove excessive force being applied by Ms Yu on P’s left eye with the Hand Piece during the Beauty Treatment.

(3)  The macular hole in P’s left eye was idiopathic, i.e. due to degeneration and was not caused by Ms Yu/D.

C.  ASSESSMENT OF WITNESSES AND FACTUAL FINDINGS

9.It is clear, as agreed by both parties, that the present case boils down to one question, namely, whether the Injuries were caused by the Beauty Treatment.

10.The parties have called two witnesses at trial, with P testifying for herself and Ms Yu for D.

11.As a matter of general observation, P is a genuine and honest witness. She is forthcoming, without trying to dodge from any question asked of her in the cross-examination. She answers each of them to her best, and her answers are mostly simple and straight-forward, yet full and complete. I do not accept D’s submission that P’s viva voce evidence is “fraught with inaccuracy”, at least not to the extent of undermining her general credibility as a witness as a whole.

12.On the contrary, Ms Yu appears flippant to me from the beginning of her evidence. Her attitude is overall casual, light-hearted in the negative sense. Both her tendency to trivialize the gravity of the matter under investigation by the Court and the way she answers questions put to her in cross-examination with dismissiveness are striking. When she is confronted the core or central issue regarding her use of the Hand Piece during the Beauty Treatment, her shiftiness and evasiveness are far too glaring. In the premises, I do not find Ms Yu a trustworthy witness, and would not accept her evidence without skepticism for one moment.

13.After setting out my assessment of the parties’ witnesses above, I make clear that in determining the material question of whether Ms Yu did indeed apply the Hand Piece to P’s eyes in the Beauty Treatment, I would prefer and adopt P’s evidence where and insofar as it conflicts with Ms Yu’s evidence, and make the following findings of fact.

14.P purchased a beauty package called “Cool Girls Never Age Package I” from D. She received her first treatment on 1 September 2020, i.e. the date of the Incident. On 17 June 2020, she had a ‘trial session’ of a much limited scope, as reflected by the discounted price of $200 charged by D.

15.After P arrived the Beauty Parlour on 1 September 2020, she was being taken to the treatment room to receive the Beauty Treatment, without being explained by D about the use of the VSP Machine or the details of the Beauty Treatment including its risks and procedure etc. in the first place. P therefore had no idea of what to expect altogether.

16.The Beauty Treatment involved powerful suction for the purpose of removing dead skin and black head. P felt that the skin of her eyelids and eye sockets were subject to pressure. She felt pain in her left eye, but since she did not know whether it was something normal, she did not complain right away.

17.As demonstrated by P, the motion of suction caused the corner of her left eye and left eyelid being pulled diagonally upward, with the feelings of being ‘pressed’ and ‘pulled’. P could also feel some pressure on her eyeballs as a result. Even though P’s eyes were admittedly closed at the material time, I do not accept D’s submission that P’s description must therefore necessarily be ‘inconsistent’ or ‘incoherent’, as P was then plainly not relying on her sight, but her other senses, mainly her feeling.

18.I note that as a matter of fact, P’s description of the process of the Beauty Treatment is perfectly consistent with the content of the user manual (“the User Manual”) of the VSP Machine attached to Ms Yu’s witness statement. In the User Manual, the operation of the VSP Machine is described to be involving both the spouting of water into the skin under high pressure to detach and remove old and dead cells, and suction of strong power to suck away oily bits, acnes and demodex from the deep follicles.

19.In other words, as submitted by P, the use of the VSP Machine would, on D’s own case, invariably involve force and pressure being applied throughout.

20.I also do not accept D’s submission that P has not properly pleaded her case, after considering carefully the substance of paragraph 2 of the Amended Statement of Claim (“ASoC”) which sets out the Injuries and identifies how they were caused to and sustained by P at the same time:

“2. On 1^st September 2020 at around 6:30 pm, the Plaintiff visited the Accident Site and engaged in beauty treatment performed by a beauty therapist (“the Beauty Therapist”). The beauty treatment involved powerful suction to clear the dead skin and black heads in and around the eyelid area (“the Beauty Treatment”). However, after the Beauty Treatment the Plaintiff developed discomfort and visited an Ophthalmologist on the next day and was diagnosed of having left eye Macula Edema as a result.” (emphasis added)

21.It is well-established that what the parties are required to do by way of pleadings is to identify the material facts to the extent of defining the issues in dispute ahead of the trial to avoid catching the opposing party by surprise. P met the requirement, by pleading specifically that it was the Beauty Treatment which caused the Injuries in her left eye, and the very subject in the treatment complained by P was the process of suction with power applied by D in and around P’s eyelids.

22.The rest is essentially a matter of proof and evidence by P at trial.

23.D then tries to discredit P by inviting the Court to ‘forensically’ examine P’s viva voce evidence. It is certainly not the correct, or at least not the desirable, approach to adopt in the present case, as by so doing there is a high risk that the gist of P’s evidence may be missed. On the contrary, P’s evidence should be properly viewed as a whole and understood in its relevant context.

24.In any event, it does not occur to me that the so-called ‘variations’ in P’s evidence as highlighted by D are inconsistent with each other as such. In particular, according to P, when Ms Yu performed the Beauty Treatment on her, Ms Yu had used the tip of the Hand Piece to pull the skin of her eyelids to the peril-orbital area (眼框位置). Ms Yu would then continue to use the tip of the Hand Piece to press and to suck from “眼頭、眼框及眼尾”. At the risk of stating the obvious, these all form the area “in and around the eyelids”. I also accept P’s submission that when the skin of her eyelids is pulled, it is hard for her not to feel any force on her eyeballs altogether.

25.It is Ms Yu’s evidence that she did not touch P’s eye area, defined to mean the area below P’s eyebrows but above her cheeks, with the Hand Piece in the Beauty Treatment, as she knew that both such area and the lips were sensitive.

26.I have no reservation in rejecting such evidence altogether, bearing in mind that Ms Yu has to accept, under cross-examination, to have moved and applied the Hand Piece to the area close to the corner of P’s left eye. Even though she has been ‘careful’ enough later on to just label that area as P’s ‘temple’, it is not difficult to observe that the area which she actually points with her finger is indeed the area so very close to the left eye corner or socket.

27.Furthermore, even though Ms Yu says under cross-examination that she only applied the ‘small’ head of the Hand Piece on P during the Beauty Treatment, the size of the ‘small’ head is not that small. It is merely slightly smaller than the size of a 50 cent. On the basis of Ms Yu’s evidence, it cannot be ruled out that when she was working on P’s left ‘temple’ in the Beauty Treatment, the ‘small’ head of the Hand Piece might have touched P’s left eye and hence causing the Injuries.

28.I also mention, in passing, that the video demonstration of the use of the VSP Machine is self-serving, and is therefore hardly of any use to the Court in determining whether or not Ms Yu had applied the Hand Piece to P’s left eye causing her injuries in the Beauty Treatment. Nor is the fact that D has through Ms Yu and its other employees performed the Beauty Treatment on different customers for many times relevant or determinative in any way.

29.Turning to the degree of force or pressure applied by Ms Yu on her left eye in the Beauty Treatment, P’s evidence under cross-examination is that it was quite hard, and much harder than what she experienced at the trial session on 17 June 2020. After comparing the Beauty Treatment with her other facial treatments, laser therapies and massages, she is able to point out that the level of pain experience by her in the Beauty Treatment was something akin to undergoing a laser therapy. She says that was similar to what she felt when she had her freckles removed in an invasive treatment.

30.I accept P’s evidence herein to be genuine and indeed it represents her true feeling at the material time.

31.D questions why P did not demand Ms Yu to stop the Beauty Treatment or report the matter to D or consult a doctor for the Injuries on 1 September 2020. While this might all well be the case, it is equally true that P did complain the Injuries to D via WhatsApp the next morning. Most significantly, there are also contemporaneous records in support of the medical treatments received by her thereafter.

32.For present purpose, the following matters are not in dispute between the parties:

(1)  On 2 September 2020, P attended Ophthalmic Surgery & Cataract Center (“OSCC”) complaining to Dr Patrick MK Tam of blurred vision in her left eye. She had visual acuity of 0.5 for her right eye and 0.3 for her left eye. A dull macula was noted on her left eye. Optical coherence tomography confirmed an early macular hole.

(2)  On 3 September 2020, P consulted Dr Woo Chai Fong Donald of The Hong Kong Ophthalmic Associates. A macular hole was found in her left eye resulting from a direct eye injury during facial treatment on 1 September 2020. She underwent posterior vitrectomy operation under local anesthesia that day.

(3)  P consulted Dr Woo Chai Fong Donald on 7 September 2020 after operation. Closure of the macular hole was revealed. P had follow-up sessions on 21 September 2020, 29 September 2020, 12 October 2020, 10 November 2020 and 22 December 2020. Cataract gradually developed on her left eye and she was advised to undergo extraction.

(4)  On 6 October 2020, P consulted Dr Byron TH Chu of Eye Clinic for blurring of vision in her left eye. Her best corrected visual acuity were right eye 1.0 and left eye 0.7. She was found to have cataract, retinal barrier laser marks and closed macula hole in her left eye. Optical Coherence Tomography scan revealed a closed left macula hole, with disruption of the photoreceptor layers at the central macula (fovea).

(5)  P consulted Dr Byron TH Chu of Eye Clinic again on 28 December 2020, complaining of further blurred vision in her left eye. The best visual acuity were right eye 0.9 and left eye 0.3. She was still found to have cataract, retinal barrier laser marks and closed macula hole in her left eye. She was advised to undergo cataract surgery.

(6)  P returned to OSCC on 28 January 2021 after receiving a left eye macular surgery, complaining deteriorated vision afterwards. The visual acuity was 0.7 right eye and 0.6 left eye. She was found to have left eye cataract, evidence of 360 degrees retinal laser and a closed macular hole. She was advised to have cataract surgery, which she did on 12 March 2021. Her vision was 0.7 bilaterally one month after the operation.

(7)  On 25 May 2021, P attended Premier Eye and Cataract Centre (“PECC”). Examination showed the corrected vision of right eye to be 0.8 and left eye to be 0.5. There was early posterior capsule opacification in her left eye, a common occurrence after cataract operation. There was epiretinal membrane at the left macula and evidence of retinal peripheral argon laser in her left eye. On review on 25 August 2021, there was further increase in left posterior capsule opacification.

(8)  P visited OSCC again on 28 September 2021, and her visual acuity was 0.8 bilaterally. Her left eye intraocular lens and macula were stable. She was advised to follow-up annually thereafter.

(9)  P attended PECC for review on 17 December 2021, and her left posterior capsule opacification increased. She was therefore suggested to receive left Yag laser capsulotomy, which was done on 21 December 2021. In the last follow-up as documented on 4 January 2022, P’s eyes were stable and there was no need for further treatment other than applying ocular lubricating eye drops.

D.  ISSUE OF LIABILITY

33.Based on the findings of fact above, I now consider the question of D’s liability in the present case, if any.

34.In Cheung Wing Yee v Angel Kiss Limited, DCPI 2259/2011 (unreported, 15 January 2016), the duty of care owed by the operator of a beauty centre to its patron was discussed. Deputy District Judge Ling Chun Wai held:

“15. As a matter of law, the defendant owed a duty of care in tort to Ms Cheung to perform the treatment up to a reasonable standard, to explain all risks involved before performing the treatment, to take any or any adequate precautions for avoiding injury and not to expose her to a risk of damage or injury of which the defendant knew or ought to have known.

16. Furthermore, section 5 of the Supply of Services (Implied Terms) Ordinance, Cap 457, provides that:-

“In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable skill and care.””

35.There were similar observations made by Judge Wong in Nam Cheuk Yin v Ng Yim Hing [2003] 2 HKLRD 195:

“35. It is incumbent on the defendant, as a professional beautician operating a beauty centre as a business, to make sure the products used on her customers should be safe and fit for the customer’s use, eg prior to treatment, a test for allergic reaction should be performed on the customer. It is further her duty that she should exercise reasonable care and skill in performing her services to customers and in doing so, she should take such precaution and remedial measures to minimize any harm or injuries to her customers…”

36.The test for vicarious liability, as set out by Bokhary PJ in The Ming An Insurance Company (HK) Limited v The Ritz-Carlton Limited [2003] 1 HKC 225 (CFA), is an employer is liable for the torts committed by its employees in the court of their employment. The tort is deemed to have been committed in the course of an employment if it is either (i) something authorized by the employer; or (ii) an unauthorized mode of doing something authorized by the employer. In the present case, there is no dispute that Ms Yu was D’s employee and the Beauty Treatment was performed by her on P in the course of employment.

37.Bearing in mind all the relevant principles of law, I accept P’s submission that as a matter of law, D owed a duty of care in tort to P to perform the Beauty Treatment up to a reasonable standard, to explain all risks involved to P before performing such treatment, to take any or any adequate precautions to avoid injury and not to expose P to a risk of damage or injury of which D knew or ought to have known. I am also satisfied that there were breaches of them by Ms Yu/D in the Beauty Treatment.

D1.  Failure to perform the Beauty Treatment with reasonable care

38.For the reasons below, Ms Yu was negligent in failing to perform the Beauty Treatment up to the reasonable standard required.

39.The User Manual of the VSP Machine was authored by D. D was negligent in failing to include express wordings in the User Manual prohibiting, or at least warning, against the use of the VSP Machine, or placement or movement of the Hand Piece on or around eye area, knowing or ought to know that such area was sensitive.

40.D was further negligent in failing to review the User Manual of the VSP Machine from time to time to come to notice the non-inclusion of such prohibition or warning in it. As can be seen, the last update made by D to it was already in July 2018.

41.According to Ms Yu, D gave her the User Manual to teach her how to operate the VSP Machine. By so doing, D was negligent in failing to properly train, instruct and/or warn D of the risks or danger of the use of the Hand Piece of the VSP Machine on or around eye area.

42.Before Ms Yu was entrusted with the use of the VSP Machine to perform beauty treatments on D’s patrons, the only ‘training’ provided by D to Ms Yu was a so-called ‘trial’ session at the Beauty Parlour, during Ms Yu had a ‘trial’ run of the VSP Machine on a colleague. D was negligent in failing to provide Ms Yu with continuous supervision or training afterwards to ensure that Ms Yu performed beauty treatments with the VSP Machine with reasonable care or up to reasonable standard.

43.In consequence, Ms Yu failed to avoid P’s eye area, but subject it to powerful force of suction in the Beauty Treatment with her using the Hand Piece on or around P’s eyelid area. In addition, Ms Yu admittedly only enquired about P’s condition at the beginning of the Beauty Treatment when she tested the VSP Machine on P’s neck. Ms Yu thereafter failed to check on P from time to time, particularly not when and after suction, with powerful force being applied on P’s eyelid area, by the Hand Piece was completed.

44.As such, Ms Yu failed to perform the Beauty Treatment on P with reasonable care or up to reasonable standard, for which D should be held vicariously liable further or alternative to its own negligence as described above.

D2.  Failure to explain the risks of the Beauty Treatment

45.P’s evidence is that she was never explained by D about the procedure of the Beauty Treatment which she was going to receive with the use of the VSP Machine, particularly not its inherent or potential risks or danger on 1 September 2020, and hence she had the least idea of what she was going to expect in the process.

46.Under cross-examination, Ms Yu accepts that she indeed did not explain anything to P before performing the Beauty Treatment on her, and she proceeded with the cleansing of P’s face right away on her arrival of the Beauty Parlour on 1 September 2020.

47.Ms Yu gives evidence that the lack of explanation was not allowed by D, but she thought that explanation had already been provided to P on her first visit on 17 June 2020.

48.I am unable to accept that Ms Yu is telling the Court the truth.

49.First, Ms Yu admits that she was not the beauty therapist serving P on 17 June 2020. According to Ms Yu, it was a lady called ‘Wanda’ taking care of P that day. Ms Yu therefore would not have any personal knowledge of what P was or was not told by Wanda that day. Ms Yu also accepts that she had not tried to ascertain it from Wanda. Nor is Wanda called by D to testify as witness at trial, if and to the extent that it is part of D’s case that explanation of the Beauty Treatment was actually rendered to P on her first visit on 17 June 2020.

50.In any event, I do not lose sight of the fact that the trial beauty treatment received by P, at a reduced price of $200, on 17 June 2020 was of a much limited scale, at least in comparison to the Beauty Treatment performed by Ms Yu on P on 1 September 2020. Even assuming that P was indeed explained about the trial beauty treatment on 17 June 2020 as alleged, that explanation could not of itself be taken as a full and sufficient account of the Beauty Treatment received by P on 1 September 2020.

51.Ms Yu then alleges that she has, prior to the trial, read certain ‘record’ file of P kept by D. D clearly appreciates the importance of such ‘record’, and even seeks to rely on it, if any. However, D has seen fit and proper not to disclose it at any stage of the present proceedings, not even at the time of trial. When pressed, Ms Yu explains that the ‘record’ has gone straight up to the ‘office’ of D, who presumably must then have got custody of it. While it is not for the Court to speculate the reason as to why such ‘record’ is withheld – still at this stage – I find it necessary to register strong disapproval of D’s conduct of non-disclosure here.

52.For present purpose, what is of importance is that since the so-called ‘record’ is not currently made available, there is simply nothing to prove or support Ms Yu’s allegation, which remains at most a bare one.

53.D further separately contends as follows.

54.First, D contends that P had not expressed unwillingness to go ahead with the Beauty Treatment on 1 September 2020. This is the most inappropriate to be asserted, as it simply lies ill in D’s mouth to shift the duty to P when it failed the duty to explain to P in the first place.

55.Second, D contends that no explanation was required as the Beauty Treatment should not, in principle, involve the eye area as shown in the User Manual. In other words, causing trauma to the eye is not a ‘reasonably foreseeable’ risk involved in the Beauty Treatment, for which D is under any duty to explain to P.

56.I disagree. D is under a duty to explain to P about the procedure and the inherent or potential risks or danger of the Beauty Treatment. Had that been done by D properly and appropriately, P would have been alerted in advance that Ms Yu should not be touching her eyelid area in the Beauty Treatment, such that once Ms Yu got close to that area with the Hand Piece, she would stop Ms Yu.

57.This perhaps also explains why P had not called the Beauty Treatment to a halt despite her pain, as she did not know what to expect and was judging from her own past experiences derived from facial, laser treatments and massages etc. Since P had not been forewarned by D, she would not be able to tell whether the pain experience by her was within the expected or accepted range of the Beauty Treatment. In any event, the question of whether or not P stopped the Beauty Treatment is neither here nor there, taking into account the fact that D does not allege contributory negligence on P’s part. In terms of that on credibility, I have already set out my assessment above that P is an honest and credible witness.

58.In the premises, Ms Yu was negligent in failing to explain to P about the Beauty Treatment, for which D should be held vicariously liable.

D3.  Failure to take precaution to avoid injury and to expose P to risks

59.In the circumstances above, what D and/or Ms Yu did or failed to do further or alternatively show that they failed to take any or any sufficient precautionary measures to avoid the Injuries and/or exposed P to unnecessary risks resulting in the Injuries.

E.  ISSUE OF CAUSATION

60.P’s case is that after the Beauty Treatment, she continued to feel discomfort in her left eye, and until about 10 pm, she started seeing some yellow circles and 3 black lines. She immediately sought treatment from OSCC the next day and was diagnosed with having macular hole in her left eye. She claims that there is a direct causal link between the Injuries and the Beauty Treatment.

61.On the other hand, D denies the causal connection, submitting that it would be too ‘simplistic’ to say that because P complained of discomfort after receiving the Beauty Treatment on 1 September 2020, or went to see a doctor on 2 September 2020 for blurred vision in her left eye, D should be liable for the Injuries and the macular hole in P’s left eye.

62.After considering carefully the parties’ evidence including the medical evidence and taking into account the relevant legal principles to be set out below, I have come to the view that the macular hole found in P’s left eye should be caused, or at the very least, materially contributed by the Incident.

63.On the question of causation, Master M Ng (as she then was) set out the following principles in Yu Wai Kan v Law Cho Tai, HCPI 62/2010 (unreported, 11 May 2011):

“71. It appears to me that the following are the principles which govern the issue of causation and the quantification of loss suffered by the Plaintiff:

(a) The burden is on the plaintiff to establish on the balance of probabilities that the accident caused or materially contributed to the loss and damages he has sustained (see CMY v Tam Siu Wing [2008] 4 HKLRD 604, 613).

(b) The law’s approach to causation is pragmatic where there are several concurrent factors operating to cause injury (see Lee Kin Kai, a patient by his father and next friend Li Wah v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232, 236). A material contribution to the outcome is sufficient to impose liability for that outcome. A contribution which does not fall within the exception de minimus non curat lex must be material; and a cause is sufficient, it does not need to be the sole cause (see CMY at p 612).

(c) Causation is essentially a matter for the judge and not for the doctors. The judge will be assisted by the medical evidence but is not bound by it; he is not confined to those matters which the doctors may individually have picked out in their consulting rooms. It is important to bear in mind that law and medicine apply different standards. In law, there is a causal connection if it is shown on the balance of probabilities that the accident is a substantially contributing cause of the injury. On the other hand, the doctors practice the science of aetiology and look for “clinical cause” or “irrefragable chain of causation” which is to be proved beyond reasonable doubt or beyond any doubt (see Lee Kin Kai, a patient by his father and next friend Li Wah at pp 235-236, Lee Sau Keung v Maxcredit Engineering Ltd & anor [2004] 1 HKC 434, 450, and Ansar Mohammad v Global Legend Transportation Limited CACV 162/2010 (unreported, 24 March 2011) at para 22(2)).

(d) The wrongdoer must take his victim as he finds him so that the wrongdoer remains liable even though the severity or extent of the damage has been increased due to the victim’s pre-existing weakness or susceptibility to harm. This “thin skull” rule (see Charlesworth & Percy on Negligence 12^th ed para 5-26 at p 350) extends to “eggshell personality” (see Charlesworth & Percy on Negligence 12^th ed paras 5-31 – 5-33 at pp 351-352, Lam Wing Ming v Dragages et Trauvaux Publics (HK) Ltd & anor HCPI 1090/1995, Master A Chung (as he then was) (unreported, 21 July 1998) at paras 14-17, CMY at pp 610-613 and Page v Smith [1995] 2 All ER 736). Thus, if the primary victim has a pre-existing propensity to depression or psychiatric illness which is activated or re-activated by physical injury caused by the wrongdoer’s negligence, the wrongdoer cannot escape liability for the loss caused by the activated or re-activated depression even in rare or aggravated form by pleading lack of foreseeability once the relevant duty of care is established and personal injury of some kind is reasonably foreseeable.

(e) When considering the effect of a pre-existing condition on an award of damages, there are 3 possible scenarios. The first is where the plaintiff is almost certain to have gone through life unaffected by the condition, and the defendant will be liable for all damage caused. The second is where there is a strong possibility that some other event or natural progression of the condition will have brought about the plaintiff’s present state, so it will be necessary to assess the degree of the possibility in deciding what reduction is appropriate in the same way as it is necessary to assess the effect of other vicissitudes of life that may abbreviate the plaintiff’s working life or lifespan and thus abridge his loss. The third is where this will certainly have occurred at some stage in any event so that clearly an allowance has to be made but the extent of which depends on the evidence as to when the precipitating event will have occurred (see Chan Kam Hoi v Dragages et Trauvaux Publics [1998] 4 HKC 523, 527).

(f) Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. Past loss of earnings may also be reduced if the risks during the years concerned are sufficiently high. For future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence, especially when a plaintiff’s working life is likely to be limited by a pre-existing condition (see Chan Kam Hoi at p 529 and Cheung Fat Tim v Wong Siu Ming trading as Kee Construction Company & anor HCA 5079/1991, Findlay J (unreported, 17 January 1995)).

(g) The principles in (e)-(f) above have been developed by the courts to give the plaintiff reasonable compensation in order to achieve restitutio in integrum, which is the key objective in awarding loss caused by negligence.” (emphasis added)

64.In Lau Mei Wa v Li King Yin, HCPI 527/2011 (unreported, 13 July 2012), Master M Ng (as she then was) explained the difference between a treating doctors’ factual evidence and forensic doctors’ expert evidence:

“147. The arguments by the 1^st and 2^nd defendants also fail to recognise the difference between therapeutic psychiatric factual evidence and forensic psychiatric expert evidence, which distinction has been succinctly explained by Bharwaney J in Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1, 28 as follows:

“46. A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person. These are all matters of fact. Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact. However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from the court.”

…

149. There are further differences between the roles of therapeutic psychiatric professionals and forensic psychiatric experts that lead to differences in clinical and forensic evaluations (see Ngai Ping Kwan at paragraphs 57-65 citing Wu Leung Kui Jacky v Leung Ming Yun & ors DCPI 1154/2008, HH Judge Mimmie Chan (unreported, 7 March 2011) and my decision in Pun Kwong Cheung v Tang Shiu Wo trading as Luen Yick Decoration & Design Co & anor HCPI 587/2008 (unreported, 23 February 2010)). These differences also justify why psychiatric expert evidence is required in the present case.

150. Psychotherapists offer clinical diagnosis and provide patient care by adopting a non-judgmental attitude within a doctor-patient relationship that is subject to medical privilege. Effective treatment is premised on a supportive and emphatic therapeutic alliance between the psychotherapist and the patient developed over the course of treatment. There is a common goal, ie the patient wants to get well and the psychotherapist helps him to get well. Psychotherapy does not involve weighing the clinical facts in order to reconcile the psychiatric information in a legal context for critical evaluation of the factors for and/or against the patient’s assertions. Thus, it is not necessary (and it may indeed be inappropriate) for the psychotherapist to keep a skeptical mindset. In the treatment context, the psychotherapist will have to exercise therapeutic judgment about pressing a patient who may be reluctant to discuss about matters that are emotionally troubling.

151. Therapeutic treatment in the psychiatric context primarily rests on information elicited from the patient. Even if such information may be incomplete or misperceived, it is not realistic for the psychotherapist to conduct factual investigation or seek collateral information to challenge or validate the history or complaints provided by the patient…

152. On the other hand, the psycho-legal expert is an impartial evaluator whose forensic relationship with the claimant is premised on litigation and not treatment. Contrary to the psychotherapist who is ultimately answerable to the patient, the forensic evaluator is ultimately answerable to the court. The forensic psychiatrist is expected to make an objective and dispassionate assessment of the psycho-legal issues relevant to the litigation by testing rival diagnostic hypotheses to ascertain the psychiatric fallout as a result of the accident and by subjecting the information from and/or about the claimant to critical scrutiny. The accuracy of the forensic assessment is highly critical, so forensic psychiatrists routinely seek verification and/or corroboration of the claimants’ allegations against other information such as collateral interviews with family members, historical/updated psychiatric and clinical psychological treatment notes and records, and even witness statements. The psychiatric evaluation is more adversarial in that the psycho-legal expert usually conduct forensically-focused interviews and tests to support or refute the claimant’s assertions, and then on such basis gives expert opinion as to whether the claimant is dissembling or not. Hence, as explained in Ngai Ping Kwan, it is not unusual for therapeutic and forensic decision making to differ.” (emphasis added)

65.In Ngai Ping Kwan v Choi Yat Hung, HCPI 537/2010 (unreported, 15 September 2011), Master M Ng (as she then was) discussed the distinction between clinical and forensic evaluations:

“59. In my view, the above proposition fails to recognise the distinction between clinical and forensic evaluations. Wu Leung Kui Jacky v Leung Ming Yun & ors DCPI 1154/2008, HH Judge Mimmie Chan (unreported, 7 March 2011) at para 62 underlines such distinction as follows:

“Professor Mak has fairly pointed out the difference in the role played by a treating psychiatrist and a forensic expert. She highlights the fact that in clinical situations, there is an underlying trust between the patient and the treating psychiatrist, who share a common goal in that the patient wants to get well and the psychiatrists helps the patient to get well. When the psychiatrist acts as a forensic expert assisting the Court, the psychiatric expert has an obligation to critically evaluate all the sources of information in order to assess the reliability of the plaintiff and his assertions…”

…

62. Since the therapist is primarily interested in promoting the patient’s well-being, his expertise is focused on diagnosis and treatment. But the forensic expert is expected to critically evaluate the claimant’s specific complaints and the historical accuracy of his medical narrative on the basis of scientific knowledge and forensic techniques in order to assist the court in its adjudication of the legal dispute, including any dispute on the issue of causation of medical conditions and residual disabilities.

63. It is therefore not unusual for forensic experts to disagree with therapists, eg expert psychiatrists may find claimants to be malingerers with no diagnosable psychiatric illness even though they may have received extensive psychiatric or psychological treatments, or expert orthopaedists may find claimants to have grossly exaggerated their physical limitations even though they may have received extensive physiotherapy and/or occupational therapy treatments with little objective signs of musculoskeletal injury. …” (emphasis added)

66.In Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663, DHCJ Raymond Leung set out the following legal principles in assessing expert evidence:

“154. In assessing the expert evidence, I would respectfully adopt the approach of Stuart-Smith LJ in Loveday v Renton [1989] 1 Med LR 117 (at 125), wherein it was explained that:

(a) The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b) The court has to evaluate the witness and the soundness of his opinion.

(c) Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d) The weight to be given to the opinion of an expert depends on:

(1) the internal consistency and logic of his evidence;

(2) the care with which he had considered the subject and presented his evidence;

(3) his precision and accuracy of thought as demonstrated by his answers;

(4) how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(5) whether or not a witness is biased or lacks independence.” (emphasis added)

67.In terms of the medical opinion, Dr Benedict CC Liang (“Dr Liang”) opined that the macular hole in P’s left eye was traumatic in nature. On the other hand, Dr Cheung Sek Hong (“Dr Cheung”) was of the view that it was not traumatic but idiopathic.

68.I prefer Dr Liang’s view for the matters and reasons given by him in support:

(1)  Macular holes are formed by vitreoretinal traction of the posterior hyaloid on the macula area. When the vitreous starts to degenerate, it will contract, causing traction on the retina and macula.

(2)  Vitreous contraction could be caused by trauma, and the force to induce vitreous contraction does not necessarily need to be very high.

(3)  As described by P, the periorbital areas of her eyes were pressed. If the eyeballs were pressed forcefully, the massage over these areas was capable of inducing an acute vitreous contraction, resulting in secondary macular hole formation.

(4)  There was an acute onset of symptoms in P’s left eye, whereas idiopathic macular hole usually has insidious onset in terms of months.

(5)  Macular oedema was found on 2 September 2020 by Dr Patrick MK Tam, which therefore favoured a traumatic cause.

(6)  The fast progress from “early macular hole” on 2 September 2020 to a more symptomatic macular hole requiring surgery on 3 September 2020.

(7)  P had no visual symptom before 1 September 2020. If P’s macular hole was degenerative and pre-existing, P would have sought medical advice before as macular hole has very obvious symptoms of blurry and distorted vision. It was very unlikely for P to have missed such disturbing eye symptoms.

69.On the other hand, I have difficulty in accepting Dr Cheung’s responses to Dr Liang’s views. As submitted by P, I also do not quite see the medical basis of Dr Cheung’s opinion that the macular hole in P’s left eye was completely idiopathic in nature.

70.First, in response to Dr Liang’s view that there was an “acute onset of symptoms”, Dr Cheung sought to explain that it may only be because P did not notice the reduced vision of her one eye when she did not need to close her right eye to see. I do not accept this, as it does not sit well with one’s personal experience of having a reduced vision in one eye. This is more not so in the present case when P had to rely quite heavily on her eyesight to work with numbers and letters.

71.Second, in order for Dr Cheung’s opinion to prevail, it would somehow mean that the appearance of the symptoms in P’s left eye shortly after the Incident on 1 September 2020 was a sheer ‘coincidence’. I could not accept this.

72.Third, with respect to the finding of the presence of macula edema on 2 September 2020, Dr Cheung claimed that even though Dr Patrick MK Tam used that very term to describe what he saw clinically on 2 September 2020, he merely used it ‘loosely’ without actually meaning it in the true sense. I also could not accept this.

73.Fourth, in response to Dr Liang’s view that there was a ‘fast progress’ from an early macular hole on 2 September 2020 to a more symptomatic macula hole that required surgery on 3 September 2020, Dr Cheung tried to rebut it by referring to the findings of visual acuity on 2 September 2020 and 3 September 2020 (which remained to be 0.3 on both days). I do not accept that Dr Cheung has satisfactorily answered the very point raised by Dr Liang when he did not even cast his mind on the very macular hole in question.

74.Fifth, in respect of Dr Liang’s point that P had no visual symptoms before 1 September 2020, Dr Cheung repeated that P might not notice the symptoms of blurry and distorted vision in her left eye because she did not close her right eye to see. Dr Cheung said that it was ‘most likely’ that P would notice the reduced vision in her left eye if she closed her right eye to see with her left eye alone. For the same reasons above, I am not satisfied with the explanation.

75.Lastly, Dr Cheung added that there was no mention of ‘trauma’ in either the Medical Report of Dr Patrick MK Tam dated 12 January 2023 or the Medical Report of Dr Woo Chai Fong Donald dated 16 January 2023. Dr Patrick MK Tam also no longer used the term macular edema in that Medical Report. So far as I observe, these might all well be the case, but none of them provides the basis of Dr Cheung’s opinion that the macular hole in P’s left eye was completely idiopathic but not traumatic.

76.I do not accept D’s criticisms of Dr Liang’s opinion, mainly for the following reasons.

77.First, Dr Liang made clear that he was not engaged to make any findings of fact. For instance, in the JMR, Dr Liang stated:

“Mdm Ng described she was given facial massage apart from the Aqua Peel treatment. Her periorbital areas of both eyes were pressed with thumb and hand. The massage was applied to area below the eyebrows according to Mdm Ng. If the eyeballs were pressed forcefully, the massage over these areas was capable of inducing an acute vitreous contraction, resulting in secondary macula hole formation. The mode of injury was not severe so there was no direct, immediate, full thickness macula hole formation which would have been accompanied by vitreous bleeding, retinal edema or external skin bruising. The macula hole here was considered to be caused by vitreous contraction which was induced by the alleged injury.” (emphasis added)

78.Later on in the SJMR, Dr Liang stated:

“The critical point in this case here is whether Madam Ng’s eyeball was pressed with fingers hardly. She described the massage as painful pressing on the eyeball. I am not in a position to decide whether her description was true or exaggerated. If the eyeball was not touched throughout the whole procedure, then the macula hole is unlikely related to the aesthetic procedure. If the eyeball had been pressed as Madam Ng described, then this manoeuvre is capable of inducing vitreous contraction and resulting in an acute macula hole.” (emphasis added)

79.Second, Dr Liang did not simply agree with Dr Patrick MK Tam and Dr Donald CF Woo but had set out his own reasons for the view that the macula hole in P’s left eye was induced by trauma. Dr Liang set out his 4 reasons to be (i) there was an acute onset of symptoms (“the 1^st Reason”); (ii) the finding of presence of macula edema on 2 September 2020 by Dr Patrick MK Tam (“the 2^nd Reason”); (iii) the fast progress from early macula hole on 2 September 2020 to a more symptomatic macula hole that required surgery on 3 September 2020 (“the 3^rd Reason”); and (iv) P did not have any visual symptoms before 1 September 2020 and it was very unlikely that P would have missed the obvious symptoms of blurry and distorted vision (“the 4^th Reason”).

80.D’s complaint about the 1^st Reason is based on a misreading of Dr Liang’s opinion and is invalid. Dr Liang did not assume that there was some kind of trauma such that the onset of symptoms at night on 1 September 2020 was said to be acute. It is the complete contrary. Dr Liang was of the view that the onset of symptoms was so acute that it supported that the macular hole was a traumatic rather than an idiopathic one.

81.D’s contention that it was possible for the macular hole to have developed for some time due to degeneration but it only manifested on 1 September 2020 with the appearance of floaters is entirely speculative.

82.With respect to the 3^rd Reason, D’s complaint that there was no basis for Dr Liang to label that there was more symptomatic macular hole is misplaced, when obviously the situation had quickly developed from an early macula hole on 2 September 2020 to the one requiring a surgery on 3 September 2020. That of itself evidenced the worsening of P’s eye condition in a short period of time, i.e. in one day.

83.D’s criticism of the 4^th Reason also cannot be accepted. Dr Liang referred to P’s own account that she did not have any visual symptoms before 1 September 2020. There was also no contrary evidence to contradict it. Dr Liang also could not be faulted for stating the view that it was unlikely that P would have missed the obvious symptoms of blurry and distorted vision.

84.Third, I do not accept that Dr Liang’s opinion was self-contradictory, when he merely did not rule out the possibility that vitreous degeneration might progress to macula hole but made clear at the same time that:

“b. Vitreous degeneration / contractions are found in almost all ageing eyes. They are the causes of many eye diseases like macula hole and retinal tear. It is hard to tell which of them will progress to macula hole and which will result in benign floaters. Therefore, we cannot assume Madam Ng will have macula hole even without the alleged ocular trauma.” (emphasis added)

85.Further or alternatively, what Dr Liang said in his medical opinion would support that the Incident was a material contribution to the Injuries of P.

86.In the premises, I accept P’s submission that D must be found liable for the macular hole in her left eye being caused or materially contributed by the Incident. The un-contradicted opinion is that P’s gradual development of cataract was caused by the left eye vitrectomy operation as well as the left eye posterior capsule opacification thereafter. As macular hole surgery would involve high volume fluid movement fastening cataract formation in otherwise healthy crystalline lens, P’s cataract purely related to the macular hole surgery. As such, as submitted by P, D should also be found liable to pay for the 3 operations related to the cataract and the subsequent complications.

F.  ISSUE OF QUANTUM

F1.  PSLA

87.P claims $200,000 as PSLA. D submits that it should be no more than $15,000.

88.P alleges having the following current conditions:

(1)  A black spot similar in size to the nail of her little finger appears in her left eye vision;

(2)  The images she sees are scarred and may fidget;

(3)  Her vision is blurred, and this may cause her headache sometimes;

(4)  She can only attentively use computer for 15 minutes, and she will feel discomfort including headache and tiredness thereafter, so much so that she will need to close her eyes to rest;

(5)  Her attentiveness is lower than before the Incident; and

(6)  She has to rely on her right eye to look, thereby causing fatigue in her right eye.

89.On the other hand, D highlights the following matters.

90.First, as shown by the medical evidence, the Injuries to P’s left eye are relatively minor. There was no orbital fracture. No foreign object struck or entered the eye. There was no permanent loss of vision. The macular hole in P’s left eye was closed upon surgery.

91.Second, the records below would support that P had a good recovery and the residual effect on the P’s daily activities etc. is minimal:

(1)  At a review by Dr Godfrey Lam on 4 January 2022, it was found that both of P’s eyes were stable with no need for any further treatment apart from ocular lubricating eye drops. Dr Godfrey Lam suggested a follow-up review in six months but P did not return for follow-up.

(2)  Examination during the joint examination on 19 January 2022 revealed that the visual acuity of P’s right eye and left eye were 0.7²⁺ and 0.9 respectively.

(3)  In the JMR, Dr Liang and Dr Cheung stated that P was assessed to have normal (or near-normal) ability to perform activities of daily living with reserve capacity.

(4)  In the SJMR, Dr Liang and Dr Cheung stated that the prognosis of the third surgery, namely Yag laser capsulotomy, which was performed by Dr Godfrey Lam was very good with nearly full recovery of visual acuity.

(5)  The joint experts assessed that according to the Guides to the Evaluation of Permanent Impairment published by the American Medical Association, the impairment of the whole person due to the left eye condition is 0.5% only.

92.Third, as pointed out by D, P only mentioned to the joint experts that there was blurred vision in her left eye and did not complain that (i) she was still seeing floaters; (ii) there were cracks and flashes in the image she saw; (iii) her tolerance of using computers was limited to 15 minutes; (iv) she would have headache after using computers for 15 minutes; (v) her concentration was weakened; and (vi) she had to rely on her right eye and therefore her right eye often got tired.

93.Based on Chan Kam Man v Yiu Kam Shui, DCPI 355/2003 (unreported, 24 May 2004), I will make an award of damages of $100,000 for PSLA. Even though it is submitted by P that the Injuries to her left eye were relatively more serious with multiple surgeries involved when compared to that case, I accept D’s submission that the matters it highlights above should be sufficiently taken into account by the Court in assessing the quantum for PSLA.

F2.  Loss of Earnings during sick leave

94.P has abandoned the claim under this head. D confirms that it will not seek costs against P by reason of her withdrawal of the claim.

F3.  Loss of Earning Capacity

95.P seeks an award under this head for a lump sum of $66,962.49, representing roughly her salary for 3 months.

96.I am unable to accept such claim. In the present case, P has been working for the same employer since joining Yan Chai Hospital in 2000. P’s evidence is that her superior was sympathetic to her situation after she returned to work following the end of her sick leave. P accepts that her work performance is satisfactory and there is no evidence of adverse comments from her superiors on her performance. P also accepts that her employer would not dismiss her and if her employer is willing to employ her, she is suitable to work in Yan Chai Hospital until she is 65 years old and she has no intention of changing job.

F4.  Special Damages

97.P claims $153,079 as medical expenses. I accept D’s submission that P should only be awarded those medical expenses that are supported by receipts in the sum of $148,820.

98.P claims $2,000 as travelling expenses. I will make an award of $1,000 under this head as agreed by D, taking into account the admitted fact that P usually took her husband’s car and could not prove her expenses.

99.P claims $5,000 as tonic food expenses. Other than a screenshot of the online order for certain supplements at the cost of $579.84 and an advice of bank transfer in the sum of $579.84, P has not provided sufficient particulars as to the nature and quantity of the tonic food purchased etc., I am therefore not satisfied with P’s claim and will only allow a sum of $600 as agreed by D.

G.  CONCLUSION

100.For the reasons above, I give judgment in favour of P for the following sums, together with interest:

(1)  PSLA: $100,000

(2)  Special damages: $150,420 ($148,820 + $1,000 +$600)

(3)  Interest at the rate of 2% p.a. from the date of service of the Writ until the date of judgment in respect of the award for damages for PSLA; and at half judgment rate on special damages from 1 September 2020 until the date of judgment, and thereafter at judgment rate.

(4)  Costs to P to be taxed if not agreed, with certificate for counsel.

101.Lastly, I thank counsel for their helpful assistance.

Mr Jethro Pak, instructed by Raymond Lam & Associates, for the plaintiff

Mr Herbert Leung and Mr Joseph Ng, instructed by Tang & Lee, for the defendant