Preng Eing Chiau v. Hatch & Turk Health Centres Ltd
Read the full judgment text of DCEC 134/1977 on BabelCite. This District Court judgment.
1. It is common ground that, on 18th August 1977, the Applicant, who was then employed by the Respondent as a masseuse in its Excelsior Hotel Health Clinic at a basic salary of $1,000 per month, sustained an injury to her right shoulder when it struck against a door at her place of work. That her injury arose out of and in the course of her employment is not in dispute.
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DCEC000134/1977 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA WORKMEN'S COMPENSATION CASE NO. 134 OF 1977 ----------------- IN THE MATTER OF AN APPLICATION BETWEEN:
----------------- Coram: Judge Rhind, D.J. in Court. ----------------- JUDGMENT ----------------- 1. It is common ground that, on 18th August 1977, the Applicant, who was then employed by the Respondent as a masseuse in its Excelsior Hotel Health Clinic at a basic salary of $1,000 per month, sustained an injury to her right shoulder when it struck against a door at her place of work. That her injury arose out of and in the course of her employment is not in dispute. 2. From the Employers Notice of Accident form (Exh. A1) and an undisputed medical report (Exh. A2) I accept that her injury consisted of a bruise accompanied by some swelling which was still present on 25th August 1977 i.e. one week after the accident. 3. The day following the accident she went on sick leave and has never worked since. 4. Although X-rays have detected no abnormality of her shoulder which can be freely moved under anaesthesia (Exh. A3 and A4 refer), the Respondent contends that she has been unable to use her right arm since the accident. The muscles of her right arm are now considerably wasted (See Dr. Wedderburn's Report: Exh. A4). 5. She now claims compensation for permanent partial incapacity under Section 9 of the Workmen's Compensation Ordinance, Cap. 282 and for total temporary incapacity under Section 10 of that same ordinance. 6. I do not think it can be seriously disputed that her wasted right arm amounts to an "incapacity". The crucial question is whether that incapacity results from the injury she sustained on 18th August 1977, the concept of incapacity resulting from injury being common to both Section 9 and Section 10. Thus, the Court is confronted with a problem of causation. 7. Apart from conceding that the Applicant was temporarily incapacitated from work between 19th August 1977 and 27th August 1977 due to her physical injury on 18th August 1977, the Respondent disputes that the Applicant suffered any incapacity resulting from that injury subsequent to 27th August, 1977. 8. The onus of proving that her incapacity results from the injury rests with the Applicant. (See Boulter's Workers' Compensation Practice in New South Wales at paragraph 173 and MacDonald's Law Relating to Workers Compensation in New Zealand, 4th Edition, paragraphs 447 and 448, both of those works dealing with legislation embodying concepts identical for present purposes to Hong Kong's Cap. 272). 9. How causation operates in this branch of the law is described by Boulter (op. cit) at paragraph 171 and by MacDonald (op cit) at paras 397 to 399. of particular use was the following extract from MacDonald's para 399
10. To assist the court in determining whether the Applicant had discharged the onus cast upon her, the only relevant material in evidence was the testimony of the Applicant herself and the content of medical reports put in evidence as exhibits. 11. It was clear from the medical reports and as a matter of common sense that the injury she sustained on 18th August 1977 would have ceased to cause anything to be organically wrong with her right arm within a comparatively short time - a matter of no more than a few weeks. The question then remains whether the injury has caused a mental disorder in her which is responsible for her inability to use her right arm. 12. Naturally one is very suspicious when someone seeking compensation comes up with a story of what can only be described as extraordinarily serious consequences from a comparatively minor injury, and in effect she is in a position where she has to prove that she is not a malingerer 13. That compensatable mental disorders can arise from injuries is in principle well established in this branch of the law. Boulter (op cit) deals with this topic at paragraph 201, whereas it is to be found in MacDonald (op cit) at paras 443-445. Similar problems and fairly similar solutions are also found in common law negligence actions for damages: See Kemp & Kemp, the Quantum of Damages, Volume 2, Part 11, Section C: Traumatic Neurosis. 14. The medical evidence in the present case can be treated as falling into two categories. Firstly there are the reports of those qualified to speak about the Applicant's physical condition, and secondly there are the reports emanating from psychiatrists. 15. A comprehensive picture of the Applicant's physical condition is given by Dr. Wedderburn, an eminent surgeon, in his reports Exh. A4 and A5. He also ventures opinions on her mental condition. In his report Exh. A4, which results from an examination he conducted on the Applicant on 23rd June 1978, he describes her as suffering from a hysterical paralysis. He then goes on to add,
16. When he saw her three days later he changed his mind about her, as the following extract from his report Exh. A5 shows.
17. As Dr. Wedderburn is so experienced in accident cases any court would be slow to disregard his opinions even on matters relating to mental conditions, but he himself is the first to recognize his limitations in this sphere. In his final paragraph in Exh. A4 he has this to say:
18. Exh. A5's closing words are
19. Because the Applicant told Dr. Wedderburn that she was staying in Hong Kong in order to obtain compensation is not necessarily inconsistent with her suffering from a mental disorder caused by the accident. 20. On this aspect of the cause of the Applicant's condition, the court respectfully takes note of Dr. Wedderburn's opinion, but in weighing that opinion cannot ignore that his speciality is not psychiatry. Moreover, the cause of the Applicant's condition is in effect the very question the court has to answer, so that, while paying heed to the opinions of medical men in so far as they are relevant on this, the court, nonetheless, cannot allow its function to be usurped. In expressing their opinions on causes, medical men are not necessarily applying the same theory of causation as lawyers. 21. Attention can now be turned to the psychiatrists' reports. In this category I include the report of the Medical Board (Exh. A3), because Dr. Ng Man-lun, a lecturer from the University Psychiatric Unit at Queen Mary Hospital was a member of the Board. 22. That Board's relevant opinions are as follows
23. If her desire for compensation takes the morbid form of compensation neurosis as a result of the injury she suffered, then the court will hold she is entitled to recover. 24. Those conclusions of the Medical Board are equally consistent with her disability either having been caused (in a legal sense) by her injury, or by some supervening cause such as a deliberate and conscious decision on her part to act as if she were ill or maybe even to make herself actually ill i.e. a process akin to a self-inflicted wound. Thus, the Medical Board's opinion does not really take the court any distance along the road in deciding whether the Applicant is honestly suffering from a genuine mental disorder brought on by the injury or whether she is a malingerer. 25. Lastly there are the opinions of Dr. Wong Chiu Lung whose qualifications include M.R.C. Psych. 26. In his opinion (Exh. A6) she is suffering from functional paralysis, which he explains as follows:
27. He elaborates on this in Exh. A7
28. While noting that Dr. Wong is
29. Because the medical evidence is far from clear, the Applicant's own evidence assumed crucial importance. Applying the level of the balance of probability to her testimony in the context of the evidence as a whole in this case, I think she told the court the truth. 30. I accepted her evidence to the effect that because she felt pain in her arm she dared not move it and that all along since the accident she has genuinely felt unable to move it. Her continuing conviction since feeling pain in her arm after the accident that she is unable to move it provides an unbroken chain of causation sufficient to establish that her incapacity to move her arm results from the accident. Though she is mistaken about her inability to move her arm which has nothing wrong with it, hers is an honest mistake stemming from a mental disorder brought on by the accident. Even though thoughts of compensation do play a part in her mental condition, I am satisfied that she has not consciously contributed to her own incapacity. 31. I regard it as inherently unlikely that anyone would malinger for the sake of compensation to the extent of allowing an arm to waste. Maiming oneself is of course not unknown, but it is, nonetheless, unlikely. There is also the point in the Applicant's favour that she admits her arm is now much better as the result of treatment -an admission unlikely to fall from the lips of a malingerer in pursuit of compensation. 32. Circumstantial factors which the court has not overlooked in considering whether the Applicant is a malingerer are that she herself has had some medical training and also that there is obviously some bad blood between her and Mr. Turk (RW1) who is a leading figure in the Respondent company. 33. A person with medical training would be more likely to know about traumatic neurosis or neurasthenia, so might be at an advantage in faking the symptoms associated with that type of condition. That is possible, I suppose, but against it there is the unlikelihood of a person with medical knowledge deliberately abusing her body by allowing an arm to waste. I am not aware of people with medical knowledge being any more or any less prone to mental disorders than any other section of the community, so I have decided to treat the fact of her having some medical knowledge as being of no particular significance in the light of the evidence as a whole. 34. It was clear from the Applicant's evidence that she did not like RW1. She was already under notice of dismissal from him at the time of the accident. Has she perhaps gone to the extreme lengths of deliberately allowing her arm to waste as a means of getting her revenge on RW1 by forcing his company to pay her compensation? Again it is possible, but unlikely. 35. In view of the foregoing, my finding is that in principle the Applicant has established that her incapacity results from the injury. 36. I accept that up till now the Applicant has experienced total temporary incapacity. Her sick leave having expired on 27th August 1977, that means she is entitled to twenty three months of periodical payments calculated in accordance with Section 10(1) of Cap. 272. 37. For the purpose of that calculation, I have to determine her monthly earnings at the time of the accident. Besides her basic salary of $1,000 per month, her earnings include tips. The evidence on her tips was rather vague. She claimed she got six to eight customers per day who, if they tipped at all, would not give her less than $10 each, whereas RW1 put her number of customers at between one and three. Unfortunately, RW1 made no effort to bring along any company books which might have shed any light on the number of customers for this particular service, so the court just had to do the best it could on the somewhat generalised oral evidence. 38. The Applicant estimated her tips at between $500 to over $1,000 per month. I think the likelihood is a figure near the bottom end of that range, and find that her tips were $600 per month. 39. Thus for her total temporary incapacity to date I make an award of 40. $1,600 x 23 x 2/3 = $24,535.3. 41. As she herself says, she is now much better, and is capable of earning at least $800 per month as a librarian. 42. Now that she is free of the worries of the present case, I think it reasonable to expect that her recovery will continue at an accelerated rate. 43. Being satisfied from the medical evidence as a whole that there is nothing physically wrong with her, I do not see why she should not make a complete recovery in the near future. The Medical Assessment (Exh. A8) to the effect that she has a permanent disability of 2% does not square with the rest of the medical evidence, and I am not satisfied that she has any permanent disability. Hence, there will be no award under Section 9. 44. To make provision for the period up to her full recovery, I am going to follow a practice evolved by the New Zealand courts which commends itself to me for its common sense. 45. That practice is described in MacDonald (op. cit.), paragraph 445 as follows.
46. Section 10(1) of Hong Kong's comparable legislation (i.e. Cap 282) allows a similar lump sum solution in appropriate cases. 47. I regard it as reasonable to suppose that the Applicant will have fully recovered within three months. I will, therefore, award her a lump sum payment equivalent to two thirds of the differences between her monthly earnings at the time of the accident (i.e. $1,600) and the monthly earnings she is capable of earning now (i.e. $800 per month). 48. Thus the calculation is as allows: ($1,600 - $800) x 2/3 x 3 = $1,600. 49. The total award for which she gets judgment is therefore $26,133.3, made up of $24,533.3 for total temporary incapacity under Section 10(1) and $1,600 for a lump sum under the same section. 50. Where the learned authors of MacDonald express the desirability of bringing this class of case to court promptly, I say "Amen" to that, and lament the period of almost two years which have passed between the accident and the trial.
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