Wong Siu Ying v. Po Leung Kuk

HCPI000540/2000

HCPI 540/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 540 OF 2000

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Coram: Deputy High Court Judge Wright in Court

Dates of Hearing: 26, 29 and 30 July, 19 August, 2, 3 and 4 October 2002

Date of Judgement: 11 October 2002

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J U D G M E N T

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1.The plaintiff, a 51 year old female, was employed by the defendant from February 1995 as one of two full-time cooks in the kitchen of the Kwong Fuk Nursery, one of 27 nurseries run by the defendant. She was employed in that capacity until the expiration of three years sick leave in March 2001.

2.The plaintiff's case as pleaded is that pain she has experienced since April 1997 is a result of bilateral epicondylitis, from which it is accepted she suffered; that that condition was caused by the defendant's negligence, which has been particularized in 14 different ways, in breach of its duty of care to her as her employer; and that the likelihood of harm to her was foreseeable.

3.The defendant disputes that it was negligent or that any injury was foreseeable. In the alternative, it contends that there was contributory negligence on the part of the plaintiff.

4.Most aspects of quantum are agreed. What remains to be determined, if the plaintiff establishes liability, relates to Pre- and Post Trial loss of earnings and concomitant loss of provident fund benefits.

5.In simple language the real issue is did the conditions in which the plaintiff carried out her work during her employment cause the bilateral epicondylitis? If so, was the defendant at fault in that regard?

The Facts

6.A large portion of the factual evidence is not in dispute and I accept that it is proven. Two witnesses testified on behalf of the plaintiff - herself and Professor P C Leung of the Department of Orthopaedics and Traumatology of the Chinese University of Hong Kong. Three witnesses testified on behalf of the defendant - So King-chun, the plaintiff's co-worker, Chan Kam-kwan, the plaintiff's supervisor and Dr Chun Siu-yeung, an orthopaedic surgeon in private practice. The defendant also produced in evidence a covert video recording of the plaintiff about her daily activities in June this year.

7.I borrow heavily from the helpful summary prepared by the plaintiff's Counsel:

7.1 The nursery serves about 100 children and is run by 14 staff members, including the two full-time cooks and two female workers.

7.2 The plaintiff alternated with So on a monthly basis as "chief cook" and "assistant cook".

7.3 The duties of the "chief cook" included buying food for and preparing three meals a day for the children, and lunch for the staff members. Routine activities included the purchase of supplies, chopping and slicing of meat, fish and vegetables, the subsequent use of a mincing machine, washing dishes, and cleaning up the kitchen. Cooking included stir-frying while standing at a wok.

7.4 The duties of the "assistant cook" included putting food onto food trolleys, pushing the trolleys to the classrooms for distribution, cutting fruit and vegetables, washing and wiping dishes, cleaning and putting away utensils, bleaching and cleaning towels, cleaning up the kitchen, and assisting in sweeping classroom floors and making and putting away children's beds.

7.5 Meals and refreshments for the children were served three times a day according to a pre-set schedule, as was lunch for the staff.

7.6 In late 1996 renovations were carried out in the kitchen, which included the installation of a one-inch high tiled lip onto a working surface in which the two kitchen sinks were located where washing and cleaning tasks were performed.

7.7 That lip was added because Chan had observed that water overflowed onto the floor and onto the clothing of kitchen workers.

7.8 The lip made it necessary for those working in the kitchen, including the plaintiff, to lift cooking utensils higher in order to clear the new edge when putting them on the work surface for cleaning.

7.9 In or about January 1997, a new stove was installed in the nursery kitchen. The new stove was also about one inch higher than the old one.

7.10 In order to cook on the taller new stove, especially when stir- frying/cooking over the wok, the plaintiff, and others, had to adopt a different posture.

7.11 During the month of April 1997, when the plaintiff was the "chief cook", there were two periods - one of four consecutive days and one of two consecutive days - when one female worker was absent. This meant that So, as "assistant cook" that month, left the kitchen at noon and again at 3 p.m. on those days to assist the remaining female worker, leaving the plaintiff to tend to the tasks in the kitchen. The work which normally would have been performed by the "assistant cook" in the kitchen, primarily washing of foodstuffs and dishes as well as some food preparation and general cleaning, was done by the plaintiff.

7.12 The plaintiff consulted a doctor on or about 12 May 1997 for right elbow pain and was given sick leave certificates; she was on sick leave for 2 weeks, after which she returned to work.

7.13 When the plaintiff presented the sick leave certificate to Chan in the presence of So in the kitchen, Chan was told by the plaintiff that the doctor had opined that the plaintiff's elbow pain might be work-related. At the time, the plaintiff was wearing a supporting "band" on her right elbow. The plaintiff queried whether it might be the added height of the new stove that was causing her problem. So agreed that the stove was higher than the old one.

7.14 Chan suggested that a wooden platform be constructed for the plaintiff to stand on when using the new stove. A wooden platform was duly made by So's husband a few days thereafter and was made available for use by the plaintiff and, if she wished it, So.

7.15 Notwithstanding the provision of the platform, the plaintiff began to wear "bands" on both elbows. Her right elbow pain developed into bilateral epicondylitis.

7.16 The plaintiff went on a long period of sick leave commencing in about August 1997.

7.17 The plaintiff's employment was terminated by the defendant in March 2001 whilst she was still on sick leave.

7.18 The occasions upon which and nature of medical treatment which the plaintiff received is not in dispute.

7.19 It is accepted by both parties that the plaintiff initially suffered from "tennis elbow" of the right elbow, thereafter of bilateral epicondylitis.

Other, non-medical issues

8.There are two other issues before turning to the medical evidence: the evidence from So that the plaintiff had told her that she, the plaintiff, was a tennis player and the content of the covert video tape.

9.So testified that, during the course of casual conversations between her and the plaintiff when discussing their social activities, the plaintiff had told her that she "played tennis" with her husband and their children, as well as neighbours, at weekends and occasionally of an evening. So said that she had counselled the plaintiff against playing mid-week as she feared that it may be tiring: her evidence on this aspect was less than convincing.

10.The plaintiff testified that she had mentioned playing tennis on one occasion only. She said she told So that she had accompanied a group who had gone to play tennis on one or two occasions; that she did not know how to play the game but had essayed a "few strokes" herself on one occasion. It was notable that she was evasive in imparting this information which emerged only during cross-examination. She is, and I shall return to this, a person prone to exaggeration and in my assessment equally capable of under-assessment were it to serve her purposes. She was no more convincing than So.

11.The best I am able to make of this issue is that the plaintiff has participated in social tennis to a limited extent but I am unable to find that it has significance in respect of these proceedings.

12.The covert video recording is of somewhat greater relevance. Its existence was well-known prior to trial. It was watched, in my absence, by the plaintiff's advisers and, presumably, the plaintiff on the first morning of trial. The next mention that was made of the video recording was after all the witnesses, for both plaintiff and defendant, had testified when I was told that the plaintiff did not require the maker of the recording to testify and that it would simply be played for my benefit. It is extraordinary that this tape was not shown to either of the medical practitioners.

13.The tape shows the plaintiff going about her daily life on two days in June 2002. It shows her carrying, either on her back or in her left hand, what appears to be a packed backpack; swinging the backpack about to put it on her back; gesticulating; removing earphones; tending to her hair. In short, it shows her moving her arms and hands in what appears to me to be an unrestrained, unimpaired manner to perform normal tasks. In one scene it shows her carrying what appears to be a white plastic bag over her right arm: she testified that she was carrying this in a particular fashion taught to her by medical/paramedical personnel, that she reserved this method for "crushable" items whilst other items of weight would usually be placed in the backpack: my observation is that there was nothing particular in the way she carried that bag. It may be, of course, that a person with bilateral epicondylitis is able to move his or her arms in the manner depicted in the video recording: the converse is equally true. I do not know. No doubt the medical practitioners would have been able to enlighten me.

14.There are, however, two aspects of the tape which need no medical comment. One scene shows her hefting fruit. This is completely at variance with her oral testimony that her condition has been such that at one stage she was unable to peel an apple and that she has been unable to carry home four apples: she testified that her condition has not improved, although this contradicts what she told Dr Chun. The second aspect is that when she appeared in court she wore a "band": on neither of the occasions when she was observed unawares was she wearing any "band". These aspects of the video evidence sharply contradict the impression which she sought to create during her evidence as to her present condition.

15.I was, in general, unimpressed with the plaintiff as a witness. She concealed from the medical practitioners whom she consulted the fact that she had been employed as a cook elsewhere before taking up employment with the defendant: she was evasive over this issue in cross-examination. She was evasive over whether she felt she was unable to return to work. She was evasive over whether she had told Chan that the lip on the working surface would make her work more difficult. She gave differing versions of the onset and state of the condition at different times. There are real conflicts as to when or if complaints were made by her about the working environment and the nature of what may have been said. However, the plaintiff's credibility is an issue which would affect quantum but is of limited relevance to liability given that the circumstances of her employment and duties and the nature of her condition are not in dispute.

The medical evidence

16.The plaintiff was first examined by Dr Chun in August 1999. She told him that she had noticed pain first whilst chopping garlic. It is noteworthy that she made no reference to renovations or changes carried out in her working environment. She said that that pain was "continuous, non-stop" until early 1999: thereafter there was "continuous, non-stop" soreness worse in the right elbow than the left. Dr Chun's report shows no significant disparity between the plaintiff's arms either in terms of appearance or in terms of her ability to use them. He found that the plaintiff suffered from bilateral epicondylitis and, based upon another report made available to him, had suffered from carpal tunnel syndrome.

17.He expressed the opinion in his first report dated 27th August 1999:

"These two conditions are extremely common seen in general practitioners' clinics, in the orthopaedic surgeons' clinics or rheumatologists' clinics. The epidemiological evidence to support the causal association between work activity and tennis elbow and carpal tunnel syndrome is far from conclusive... And there is no evidence that they are any more commonplace in arduous or manual occupations than in sedentary work."

18.He further observed:

"In [the plaintiff's] situation, clinical and radiological evaluation did not review any evidence of infection or malignant disease to account for her continuous, non-stop pain.

She said that during the sick leave period she was doing her household works. This fact pointed to indicate strongly that any pain she had was not significant to deter her from doing household chores and daily activities.

Physical findings at this examination were all normal. There was no restriction of elbow motion. She only had subjective signs of tenderness and doubtful pain on forced extension at the wrist."

19.In a subsequent report dated 21st September 1999 he added:

"...the tennis elbow and carpal tunnel syndrome are extremely common condition encountered in any sort of people, not necessarily in workers...

...Such condition is found in men, women, sedentary workers, labourers, sporting people, non-sporting people, doctors, lawyers, decoration worker, managers, bankers, clerks, etc, just like low back pain or influenza that can occur in every walk of life.

In [the plaintiff's] situation, I do not envisage that there was a harmful working environment, or working pattern different from those of an ordinary housewife or cook working at a cooked food stall or in a kitchen."

20.The plaintiff was examined a year later by Prof Leung who prepared a report a copy of which was sent to Dr Chun for comment who responded:

"...a full description of her job was given by [the plaintiff]. There were a variety of jobs she described. Each job involved different movement of the upper limbs at elbow and wrist. There was no constant repetitive work involved. She did not use the kitchen utensils all 8 hours in a day repetitively. There should be adequate rest in between each job, for example, going to market to buy food, or washing food. Such works cannot be considered repetitive."

21.Prof Leung's report commences with a recitation of the plaintiff's related history thus:

"She worked as a cook for many years and did not feel any pain over her arms until some renovation was done in the kitchen she used to work. The stove was rebuilt on a higher level so that she had to lift her arm in order to get access to the cooking utilities."

22.Other than her claims of tenderness about the elbow joints, Prof Leung found no abnormalities whatsoever, despite what he describes as claims of "weakness and vague pain." Based on what he was told by the plaintiff, he indicated that there was "absolutely no suggestion" of pre-existing vulnerability due to injury. He opined:

"Since the elevation of the stove to a higher level [the plaintiff] had to lift her arms when she used the kitchen utensils in performing her cooking services. Within a few weeks, she started to experience pain and tenderness over the lateral side of her right elbow.

...lifting the elbow and arm to a high level unsuitable for cooking activities would be putting the elbow on a constant stress situation. The unfavourable stress and strain put on the extensor group of muscles were well known to produce extensor muscle origin tendonitis, known as "tennis elbow".. This pathology was classified as repetitive motion injury or repetitive motion sprain. This was definitely a work related disease viz. occupational disease."

23.He expressed an opinion in regard to onset in the left elbow which was based on an incorrect assumption: he properly modified that opinion in court when provided with correct information. He described "the long history of pain and uncontrolled extensor muscle origin tendonitis" as rare. He repeated his opinion that the pain was "initiated by occupational activities" but acknowledged that "such tendonitis could occur without occupational stress." His recommendation was that

"...the plaintiff should be enlightened of the real nature of the tendonitis, get back to work on some favourable job and stop blaming the kitchen stove."

He repeated his opinion on a number of occasions that the condition is "work-related".

24.In a subsequent report, dated 11th September 2000, he assessed a loss in earning capacity of 40%.

25.In this matter the plaintiff bears the onus to satisfy me, on a balance of probabilities, that the cause of the condition from which she undoubtedly suffered - if not suffers - was her working environment.

26.The plaintiff has shifted her ground somewhat over the course of the years. She mentioned only the increased height of the stove to Chan as the cause of her malady. She made no mention at all of the kitchen renovations to Dr Chun. She mentioned only the increased height of the stove to Prof Leung, who based his assessment of her on that increase. Her final stance is that it was a combination of factors, including the higher stove, the lip attached to the working surface, the very nature of her work, the added burden placed on her by the absence for a couple of days of a co-worker and a number of other matters which together caused the problem.

27.Both Prof Leung and Dr Chun testified. Each persisted in his opinion, Prof Leung that the condition is definitely work related and Dr Chun that it is not proved to be so related. Each made reference to a number of articles or journals and statistics which supported his view: I see no necessity to traverse them. It was plain from their evidence that they have a fundamentally different approach to these matters and that the common ground they share is limited. It is clear from the various papers brought to my attention, from the fact that these two experienced surgeons disagree with one another and from reading reports in other matters, that opinion as to causal connection between repetitive work and the conditions from which the plaintiff has suffered varies considerably.

28.On the issue of causation I prefer the evidence of Dr Chun. Prof Leung accepted that the "key word" in the cause of the condition is "repetitive". Critically, he also accepted that he did not go into the details of the nature of her work: he certainly gave no indication that he was aware that she worked as "head cook" with the actual cooking duties that involved only on alternate months. It follows that he would not be in a position to indicate whether it was sufficiently repetitive to potentially cause damage. His evidence is patently based on the assumption that she was a cook full-time, when that was not the case.

29.Prof Leung accepted in evidence that occupational related stress may make no presentation for a long period until there is a sudden change in working environment. He went on to say:

"...I took it as the increased height of the working table, which was the stove, was taken by me as a highly possible initiating cause of the symptoms which could have manifested earlier or could have remained quiescent for longer periods..." (emphasis supplied)

Implicit in this is recognition that the injury may have pre-dated the plaintiff's employment with the defendant but only manifested itself later. He was, of course, unaware, because the plaintiff had not disclosed the fact to him, that she had previously been employed as a cook elsewhere. He accepted that this is a very common condition even among people who may have had it totally unrelated to work.

30.Even though the onset of her condition occurred during the time of her employment with the defendant, the plaintiff has to prove that it was the prevailing conditions, consequent upon the defendant's negligence, that were the cause of that condition - not simply that it manifested itself during that time.

31.Dr Chun, on the other hand, carefully examined the nature of the plaintiff's duties and concluded that there was sufficient variety in her tasks as to remove her activities from the dangerous level of repetition. When looking at the job descriptions of the two positions, I accept that he is fully justified in that opinion. The job was one which was repeated but not necessarily repetitive.

32.He dealt with the issue of increased height of the stove in an earlier report where he opined that it would be at shoulder level that any increase would be compensated, not elbow level.

33.Although the plaintiff has shown that her symptoms manifested themselves during her employment with the defendant and although the evidence suggests that work of the nature undertaken by her could cause that condition, the plaintiff has failed to establish, on a balance of probabilities, that, as a matter of fact, it was the work which she executed in the environment in which it was executed which caused that condition.

34.In the light of that finding it is unnecessary for me to consider either foreseeability or quantum. For the sake of completeness, however, I shall comment briefly on the former.

35.I do not think that it may sensibly be submitted that, on the facts of this matter, the likelihood of harm to the plaintiff was foreseeable prior to the complaint made by her in May 1997 to Chan. The fact that it was at Chan's instance that the lip was fitted to the working surface in the kitchen in 1996 demonstrates a proper awareness and supervision on the part of the defendant.

36.Obviously, once the plaintiff made her concerns and condition known to Chan the position changed. It is not disputed that the only complaint the plaintiff made concerned the increase in height of the stove nor is it disputed that immediately the complaint was made Chan suggested and implemented a solution - to provide a platform on which the plaintiff could stand which would more than compensate for the increased height of the stove. That platform was available several days later and remained in the kitchen until after the plaintiff's employment was terminated. On the factual basis of this matter, I would have held that the defendant had discharged its duty to the plaintiff.

37.The plaintiff's claim is dismissed. Costs of the defendant, as taxed or agreed, to be paid by the plaintiff. The costs order shall be an order nisi with liberty for either party to restore for argument on notice given within 14 days of this judgement.

Representation:

Mr Melvin Wong, instructed by Messrs Yip, Tse & Tang, for the plaintiff

Mr Ronald Tang, instructed by Messrs Hastings & Co, for the defendant