Sin Sau-wan, Sandra v. Sopex (Hong Kong) Limited

DCEC000152/1998

DCEC152/1998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 152 OF 1998

Coram: H H Judge Carlson in Chambers

Date: 17 December 2001

Date of Decision: 20 December 2001

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J U D G M E N T

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1.This is an application by the applicant in employees compensation proceedings to take out two payments into court made by the respondent which total $115,000. The application is made under Order 22, Rule 5 of the Rules of the District Court.

2.The respondent resists on the basis provided for under the rule itself which is to the effect that if there is a real possibility that there has been a substantial change of risk either as to liability or quantum since the payment in has been made, then the court may refuse payment out and let the matter proceed to trial (see Gaskin v British Aluminium Company [1976] 1 QB 524. The rationale for declining to let an applicant or plaintiff from taking a payment in is that it would be unfair to hold a respondent or defendant to a sum which it offered in circumstances that were different to those prevailing when the application to take out the payment in is made. That is the principle. I now need to consider the particular circumstances of this case.

3.The applicant, Miss Sandra Sin, had been employed by the respondent as a senior secretary which required her to act as receptionist, typist and to perform general secretarial duties. To describe the nature of her claim, I can do no better than to recite, in full, paragraph 3 of the particulars of her amended application which is as follows:

"date and place of accident, nature of work on which the applicant was then engaged, nature of accident, and cause of injury.

The applicant was employed by the respondent for the post of senior secretary beginning on 15 June 1996. In the course of the applicant's employment and working at the respondent's office at 21B Orbin(?) House, 171-172 Gloucester Road, Wan Chai, Hong Kong, the applicant contracted an occupational disease, namely, tenosynovitis of both hands which was, in the opinion of the occupational health consultant of the Occupation Health Clinic, Department of Health, Hong Kong Special Administrative Region, a prescribed occupational disease under the second schedule of the ordinance as item A8.

The applicant's employment and duties had involved, inter alia, the applicant's frequent or repeated movement of the hands and wrists. The applicant contracted the occupational disease in the course of her employment and performance of her duties which have included especially the task of intense, rapid and prolonged periods of typing which causes the occupational disease. The applicant was discovered to have contracted the occupational disease on or about 20 June 1997."

Paragraph 4 describes the nature of the injury as;

"an occupational disease known as tenosynovitis of both hands which results in pain and weakness over hands, wrists and arms."

4.The application for compensation was made on 2 March 1998 and subsequently amended in 1999 to put the case more fully. The answer, which is dated 20 March 1998, amounts to a denial of the claim both as to liability and quantum. On 3 June 1999, an initial payment into court was made in the sum of $92,000 which was subsequently added to on 11 December 2000 by a further sum of $23,000. The claim itself is brought under section 32 of the Employees Compensation Ordinance ("the ordinance") which provides for compensation in the case of occupational disease which is due to the nature of the applicant's employment. Under section 3 of the ordinance, an "occupational disease" is defined as;

"any of the diseases specified in the second column of the second schedule with any recurrence or sequelae thereof."

5.This particular claim is brought under Item A8 of the second schedule which describes the occupational disease as;

"traumatic inflammation of the tendons of the hand or forearm, including elbow, or of the associated tendon sheaths, the applicable trade, industry or processes, any occupation involving manual labour or frequent or repeated movements of the hand or wrist."

6.In order to understand why the respondents now resist the payment out, it is necessary to consider the development of the medical evidence over the period of the litigation. The relevant references to the medical evidence appear to be these: at page 72 of the bundle there is a report from Dr M Y Ho who confirms the applicant's assessment at the Kwun Tong Occupational Health Clinic where she was diagnosed as having tenosynovitis of both hands and as such she was classified as suffering from a scheduled occupational disease. This was on 25 August 1997. At page 30 there is a certificate of review of assessment dated 18 June 1998 by the Employees Compensation (Ordinary Assessment) Board comprising, amongst others, medical experts which also describes the injury as tenosynovitis of both hands and found a 5 per cent loss of earning capacity permanently caused by this condition.

7.But there are also two early reports to which I should briefly refer. Firstly, one dated 18 October 1997 from Dr Chan Chi-king (see page 64) where under clinical impressions he says that:

"Miss Sin's symptoms cannot be accounted for by the physical findings and the laboratory tests. Her condition could be labelled as tendinitis of both wrists but the symptoms should not last a long period, especially where she had been on rest and physiotherapy. During the interview she gave an impression that she wanted to have her condition fixed as soon as possible. A hysterical reaction could not be excluded."

8.Then there is a report from Dr David Sterling dated 5 November 1997 (page 65). He too was not entirely convinced as to the genuineness of her condition, commenting that she gave the impression of being someone who has an extremely low pain threshold and examination was quite difficult. He would have wished for further objective evidence of the reality of her condition. He recommended nerve conduction studies which could be performed by a neurologist.

9.This then brings me to the main medical evidence. I take the respondent's medical expert first because, perhaps a little surprisingly, the respondent, in resisting the applicant's summons, relies on the evidence of Professor Leung, the applicant's expert rather than its own, to demonstrate, if it can, the substantial change of risk as contemplated in Gaskin v British Aluminium Company supra and so it will be more helpful to look at what Professor Leung has to say last.

10.Dr Lau's first report is dated 20 March 1999. At page 44 he concludes that, "There is no scientific proof that repetitive movement over a period of time can lead to traumatic inflammation of tendons." He goes on to say that:

"In Madam Sin's case there is no objective evidence to support her claim of tenosynovitis of her hands. There remains the possibility that she is (a) exaggerating her claim; (b) suffering from hysteria; (c) malingering. I cannot think of any treatment that can benefit her. She should be able to work as a secretary. She has not suffered any permanent disability or loss of earning capacity."

11.Having the benefit of that report, which was clearly favourable to them and against the applicant's case, the respondents made their first payment in of $92,000 on 3 June 1999, some three months after that report. No doubt they approached the matter "commercially" and hoped to tempt the applicant into accepting it. 18 months later, in December 2000, they made a further payment in of $23,000. It is also right to say that by the date of the first payment in there were in existence the reports from Dr Chun Sin-yeung and from Dr Sterling referring to unusual aspects of the applicant's condition.

12.Mr Wong, the respondent's solicitor, in his affirmation, also refers quite rightly to the applicant having obtained a report from Dr Lam in March 1999 whose opinion was that whilst her symptoms were clinically compatible with those of tenosynovitis, he also found peculiar features in her complaint. He also agreed with Dr Chan, Dr Sterling and Dr Chun (see page 58 of the bundle).

13.It can therefore hardly be said that the respondents made these payments into court fearing that their opponent's case was so strong that it was almost bound to succeed. Clearly, the applicant's case was fraught with uncertainties. Their two payments-in represent an amount well below the sum of over $250,000 which the applicant will contend for should this matter go to trial. These are payments-in judged with the benefit of a number of expert reports which were bound to make the applicant and her solicitors apprehensive about the merits of her case. The respondents must have realised that and must be taken to have pitched the payments in with all of that in mind. These were informed decisions at the time that they were made.

14.What has changed since December 2000? Hoping perhaps to do better on the experts, the applicant then went to Professor Leung. He examined her on 31 May 2001. The respondent's case on this summons hinges on his two reports. His main report starts at page 32. For the purposes of this summons, the relevant passages appear at pages 36 and 37. They are as follows:

"An Overall Assessment

(1) Is Miss Sin's present condition related to the occupational disease, repetitive overuse, tendinitis? The current condition of Miss Sin was much more complicated than synovitis or tendinitis. According to the history, excessive typing could be the cause. However, no more synovitis or tendinitis was apparent at this stage. One could only refer to the medical record available. Unfortunately, attending doctors at the occupational health clinic and orthopaedic clinic just write down 'tenosynovitis' without specifying which tendons, which side, how many tendons, how many fingers, etc. At the acute stage of repetitive motion, tenosynovitis, careful examination and palpation would allow the attending doctor to make a definite diagnosis. The inflamed tendons are commonly occurring around the base of the thumb, dorsum of the wrist, around the ulna bone and at the tendon insertions. One could not just label tenosynovitis without confirming it. All tenosynovitis severe enough to force a patient to go off work should have local evidence. The absence of record might indicate that the evidences were not sought. Attending physicians missed the chance of making a correct diagnosis.

(2) How should the reflex sympathetic dystrophy behave? Reflex sympathetic dystrophy is an exaggerated presentation of general loss of hand function after some simple injury. One sees a vicious cycle of pain and disuse which in turn cause more pain and disuse. There is strong influence from socio-psychological factors leading to and maintaining the syndrome. The syndrome itself is not an occupational disease. However, the syndrome is very often related to occupational injuries. The outcome of reflex sympathetic dystrophy is totally unpredictable. Usually it takes several years to settle. Not too uncommonly, it leads to total loss of earning power. Treatment consists of physiotherapy, occupational therapy and psychotherapy. Results of treatment again is unpredictable."

15.Professor Leung then gave a further report dated 28 August 2001 (page 46) which comments on a number of the medical reports which have already been filed in the case to which I have referred. These comments can fairly be described as a criticism of those experts for their failure to attach the correct label of reflex sympathetic dystrophy to her condition which he had found as a result of his examination in May this year. His conclusion at page 48 merits repetition here:

"It was clearly insufficient to label Madam Sin to have low pain threshold or that she was malingering. She was genuinely sensitive to touch and abnormally painful on finger and grip motions, results of excessive sympathetic reflex action. Reflex sympathetic dystrophy in Madam Sin's case resulted from mild wrist pain due to repetitive occupational movements which could be considered an occupational disease. However, reflex sympathetic dystrophy was the outcome of injuries with unpredictable results and could not be labelled as occupational disease. At the time of her examination, she was functionally disabled in spite of the lack of organic pathology. She should improve with time but how long would it take and would the recovery be complete were not predictable."

16.It is plain from a fair reading of Professor Leung's reports that reflex sympathetic dystrophy due to repetitive occupational movements could be considered an occupational disease. In deciding this matter, I regard this as a crucial element of the medical evidence.

17.Mr Simon Leung, for the respondents, in the course of his helpful submissions, says that Professor Leung's evidence brings a new dimension to the merits of the applicant's case. Whilst perhaps it does not entirely shut out the case on occupational disease, it so damages it that it would not be right to now hold the respondents to these payments in. Alternatively, he says that the medical evidence is at least so uncertain that I cannot fairly decide the merits on paper and that I should therefore allow the matter to go to trial.

18.Mr Colin Wong, for the applicant, submits that whatever label one attaches to her condition, it falls within the broad definition of an "occupational disease". He draws attention to the whole of the section 3 definition of "occupational disease" and to the description at A8 in the second schedule of the ordinance.

19.I am bound to say that the medical evidence as at the date of the second payment in, in December 2000, had consistently drawn attention to the uncertainties and therefore weaknesses in the applicant's case. These payments in were made by the respondents, advised by experienced solicitors, with their eyes open. This was a commercial decision and I do not agree that Professor Leung's first report, as explained by his second, can be said to so alter the evidential landscape to the extent that there has been a substantial change of risk so as to now render it unfair to hold the respondents to their payments-in. Professor Leung's reports, both something of a tour de force coming from a distinguished expert, have sought to put this lady's condition into its proper setting and to attach an appropriate label to her condition. Occupational disease remains as a viable conclusion. The merits, perhaps not of the strongest, remain basically unchanged by these post-December 2000 materials.

20.In my judgment, there is no reason why the respondents should not be held to these payments in. They were, if I may say so, well judged when they were made, they remain well judged and the applicant will now have leave to take them out with the consequences as to costs which appear in the summons.

21.On the hearing of this summons, where the applicant has had to come to get this order, the applicant must now have her costs with certificate for counsel. This order will be an order nisi. There will also be Legal Aid taxation of the applicant's costs.

Representation: