Chan Sau Lan v. Chesterton Petty Ltd

HCPI 1123/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1123 OF 2002

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BETWEEN

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Before: Deputy High Court Judge Saunders in Court

Date of Hearing: 25, 26, 27 February, 2, 3, 31 August, 1 September 2004

Date of Judgment:  3 November 2004

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J U D G M E N T

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1.This is an action for damages for personal injury.  Both liability and quantum are at issue.

Background:

2.The Plaintiff (Madam Chan), is a 53-year old woman.  She was aged 49 at the time of the accident.  She was employed by the Defendant, (Chesterton Petty) in April 1998, as a cleaning worker in Tin Oi Court at Tin Shui Wai.  Her working hours were in the afternoons or the evenings, from either 1 p.m. to 6:30 p.m., or from 8:30 p.m. to 11 p.m.  Her monthly salary was $5,720.00.  She has 4 days off each month.

3.On 11 December 1998, she was working on the afternoon shift, with a Madam Li Yat Ling, on the 28^th floor of Oi Chiu House in Tin Oi Court.  Their task was to carry out the cleaning of floors with a high pressure hose system.

The system of work:

4.The system of work, that had been long established, was that a water pump was mounted on a trolley, with a second trolley following, on which was mounted a special vacuum cleaner, designed to clean up water.  The high pressure water pump was electrically operated, as was the water vacuum cleaner.  The system of work involved the two trolleys being used in unison and coordinated action.  Electric power was taken from an outlet on each floor, by electric wire, first to the second trolley, the water vacuum cleaner, and from there to the first trolley, the high pressure hose.  The electricity powered both the high pressure pump and the vacuum cleaner.  Because the electric wire ran from the second trolley to the first it was necessary for the two trolleys to be moved in unison, and in a coordinated manner.

5.The usual or practice was that the work was carried out by three people, but on the day of the accident the third worker was on sick leave and had not been replaced.  Madam Chan and Madam Li were working together, Madam Chan at the rear controlling the water vacuum cleaner trolley, and Madam Li at the front, operating the high pressure hose.

6.In order that the two trolleys may operate for a considerable period of time on each floor, without the need to change the electricity source, a supply of electric cable was kept mounted on a hanger fixed to the rear trolley.  It was therefore necessary for the operator of the water vacuum cleaner, or the third person operating the trolley carrying water vacuum cleaner, to continually pay out the electric wire as the cleaning operation progressed along each floor of the building. 

7.I have seen photographs of the second trolley, and it was produced in court in the course of the evidence.  It comprises a plastic drum approximately 3.5 feet high and 2 feet across, on top of which is mounted the vacuum cleaner machinery.  That it is in the form of a lid to the drum.  The drum itself acts as the receptacle for the vacuumed water.  The coil of electric wire was kept on a hanger above the vacuum machinery.  The drum, its vacuum machinery lid, and the hanger containing a wire were mounted on a trolley of the type typically seen in use by workmen in Hong Kong.  It is an oblong metal trolley with a handle enabling it to be pushed from behind.  Four small diameter wheels amounted underneath the bed of the trolley. 

8.It was necessary for the operators of the two trolleys to keep a reasonable degree of tension on the electric wire between the two trolleys, such that the wire would not fall to or drag on the ground, where it was in danger of being caught in the wheel of the second trolley, or being pulled too tight in which case the plugs for the power supply may be partially detached from the sockets and the power supply may be interrupted.  All those using the trolley were aware of that problem.  The evidence was that they had been instructed, not only to maintain appropriate tension, but that when the electric wire became entangled in the wheel of the second trolley, to lift one corner, or the front, of the second trolley, thereby allowing the wheel and cable to be freed.

9.I am satisfied that the structure of this second, vacuum cleaner, trolley was inherently unstable.  When the water drum was empty, or nearly empty, as it was at the time of the accident, virtually the whole of the weight of the system comprising the machinery for the vacuum cleaner, and a significant coil of electric cable, were high above the base level of the trolley.  Consequently, the device had a very high centre of gravity and consequently would tip over very easily.  Secondly, the trolley was of a structure whereby the wheels were mounted underneath it, and not to the side, thereby narrowing the base of the trolley and further aggravating the danger presented by the high centre of gravity.  With a narrow base and a high centre of gravity, the trolley was in constant danger of tipping and falling over.

The accident:

10.The accident had occurred when, as happened from time to time, the electric cable became entangled in the front wheel of the second trolley. 

11.Acting in accordance with the instructions that had been given to her, and the practice of the workers, Madam Chan lifted the front wheel of the trolley to free the cable.  It did not free immediately and she bent down in order to free the cable from the wheel by hand.  Madam Li, ahead of her, was unaware of what was happening behind, and moved the front trolley forward placing tension on the electric cable.  The effect was to cause and already unstable machine to tip over, striking Madam Chan on the neck and the back.

12.Madam Chan was able to right the trolley by herself and the work continued.  The event occurred at about 3.00 p.m. in the afternoon.  They worked together until 6:30 p.m.  It appears that they were working a double shift that day because, at 8.00 p.m., when they returned to work, Madam Chan complained that she was suffering from back pain.  She was then taken to the Accident and Emergency Department of Tuen Mun Hospital for treatment.

Liability for the accident:

13.I am satisfied that the machinery supplied to the workers to carry out the work was inherently dangerous, as was the system of work that was devised, and that liability for the accident and subsequent injury arising therefrom should fall upon the Defendant.

14.The Defendant contended that Madam Chan was contributorily negligent in the accident.  It was argued that she should not have bent down to try and free the electric cable.  I reject the proposition that that act constitutes contributory negligence.  While it is right that it is a sensible method to lift the wheel of the trolley to free the wire, it would, inevitably, on occasions, be necessary to bend down to free the wire by hand.  That it was dangerous to do so because of the unstable nature of the trolley does not constitute contributory negligence on the part of Madam Chan, but demonstrates the negligence of the Defendant.  I reject the suggestion that there was any element of contributory negligence at all.

The injury suffered:

15.Madam Chan first attended Tuen Mun Hospital on the day of the accident, 11 December 1995.  There is no report from Tuen Mun Hospital specifically relating to that admission, but there was no dispute that she was simply “treated and discharged”.  There was no suggestion that, at the time of that admission, she complained of head injury, loss of consciousness, or post-traumatic amnesia in the incident.  She was X-rayed, but the evidence does not show precisely what aspect of her body was subjected to X-ray.  She said that she was given pain-killers, and ointment, and was given three days sick leave.  Her evidence was that during those three days, she went to see a bone-setter each day, who advised her that she had injuries to her fourth and fifth vertebra and advised her not to walk so much so as to prevent dislocation of the vertebra which would make her injuries more serious.  There was no suggestion of that she did not take that advice.

16.She returned to work on 15 December 1999.  On that day, in pulling a rubbish bin on her own, she found that her body, particularly on the right side and in her vertebrae, was very painful.  She reported this to her supervisor who instructed her to go again to the Accident and Emergency Department at Tuen Mun Hospital.  Examination there showed localised tenderness over the lumber spine and right occiput but without any wound or swelling.  No neurological deficits were elicited over all four limbs.  X-rays of her skull and lumbo-sacral spine were normal. She was admitted to the ward overnight.  She was released the next day, on 16 December 1999, and granted sick leave to 28 February 2000.

17.She has never returned to work.  The complaint now primarily made is that she suffers from post-concussion syndrome.  That diagnosis was apparently made by a Neurosurgeon, Dr Kan Yiu-ting, at Precious Blood Hospital “Caritas”, in Shamshuipo, in about September 2001.  Madam Chan had been attending that hospital and other hospitals for many months since the accident, continually claiming of headache giddiness and lower back plain.  Despite physiotherapy and all other treatment there had been no recovery.

The trial is adjourned for further medical evidence:

18.At the conclusion of the evidence for the Plaintiff, I drew the attention of the counsel of the Plaintiff to the fact that it appeared from the papers that the basis upon which he was conducting the action was that Madam Chan suffered from post-concussion syndrome.  I pointed out to him that the substantive medical reports did not address the issue of post-concussion syndrome.  The only medical report addressing the matter was that of 13 September 2001, from Dr Kan, where it was referred to merely as a diagnosis, without any basis for the diagnosis nor assessment of madam Chan’s condition.  I pointed out that Dr Kan was a neurologist and not a psychiatrist, and that post-concussion syndrome was psychiatric condition, and not a neurological condition.  Further, it appeared that the plaintiff did not intend to call Dr Kan.

19.In that situation I considered that it would be unfair to Madam Chan for the trial to proceed further for, on the state of the evidence, I would have been quite unable to properly assess the basis on which her claim was being made.  The proceedings were adjourned to enable both parties to have further medical reports made.

The medical assessment of the allegation of post-concussion syndrome:

20.For Madam Chan, medical reports were subsequently filed by Dr Leung Siu-kau, Senior Medical and Health Officer at the Tuen Mun Mental Health Centre, Castle Peak Hospital, and Dr Alexander Lo, a Registered Clinical Psychologist.  Dr Lo was the opinion that Madam Chan was suffering from post-concussion syndrome and assessed her disability 50% of loss of earning capacity with a psychiatric disability of 30%.  Dr Lo put to the court a treatment programme recommending 5 years of psychotherapy, psychiatric Treatment, physiotherapy and Occupational Therapy.

21.For the Defendant, Madam Chan was examined by a clinical psychologist, Dr Frendi W S Li and by Dr Chen Char-nie.  Dr Chen, a specialist psychiatrist, reached the conclusion that in accordance with the current official classification system, Madam Chan is not suffering from post-concussion syndrome.  He considered that following the accident she had suffered a mixed anxiety and depression, and was adequately treated by professional staff of Tuen Mun Hospital.  In his professional opinion, having regard to the nature and extent of the accident and the injury suffered, that mixed anxiety and depressive condition would have been adequately and completely treated in about six weeks, rendering Madam Chan fit to return to work.  He takes the view that she is now adopting a sick-role, which has led to the development of elaboration of symptoms for psychological reasons.  His view is that she is in fact capable of returning to her pre-accident job and that her prognosis depends upon learning to shake off sick-role, and the resolution of the litigation.

Assessment of the medical evidence:

22.I have considered the whole of the medical evidence carefully and have come to the view that I prefer that Dr Li and Dr Chen.  Dr Frendi Li has analysed the psychological tests that have been undertaken in the Government Hospitals, and has drawn my attention to the wide variation of result in those tests.  She has undertaken the Chinese version of the Minnesota Multiphasic Personality Inventory, (CMMPI), and the Test of Memory  Malingering, (TOMM).  I am satisfied from the evidence that I have heard that both of those tests to be properly conducted.  I reject the evidence of Madam Chan and her niece to the effect that the tests were not properly conducted.  Having heard Dr Li’s description of the steps she undertook and to undertake the test I am satisfied the adequate supervision was given the tests were properly conducted.  I have listened carefully to Dr Li’s explanation as to the tests and her analysis of the tests undertaken by the Government Hospital.  I accept her evidence that the wide fluctuations in the tests demonstrated that Madam Chan is exaggerating and the deliberately faking a poor presentation.

23.I have carefully looked at the surveillance videotapes that were taken of Madame Chan.  Those videotapes  show her moving relatively freely and naturally in the community, and not demonstrating at all any of symptoms that she has described to the doctors in the course of the preparation of the medical reports.  She was able to move freely about housing estates, take buses, queue for, and buy fast food, and shop in a supermarket without apparent difficulty.

24.I conclude, on the balance of probabilities, that following the accident, Madam Chan suffered a minor soft tissue injury which rapidly repaired.  Following the accident she has adopted a sick role which has aggravated her situation, and prevented her from recognising that she is in fact fit to return to work.  I base this finding on the evidence of Dr Li and Dr Chan, which I accept.  I also place significant weight on the fact that an essential element of post-concussion syndrome is a loss of consciousness and concussion.  There was not slightest shred of evidence that Madam Chan had suffered any concussion at all.  The fundamental basis for her claim for post-concussion syndrome fails.

25.She has suffered a minor accident and is entitled to relatively nominal damages.  I am satisfied from the evidence I have heard that the whole of the true effect of the injury suffered by Madam Chan in the accident on 11 December 1998, would have passed by the end of February 1999, and that by that time Madam Chan was fit to return to work.  Her failure to return to work is not as a result of the accident, that has a result of her own, self-induced, psychological condition.

26.The injury sustained was a minor soft tissue injury that by itself gave rise to pain and discomfort for a short period but, by itself, rapidly repaired, without very much treatment.  In normal circumstances such an injury would hardly attract damages.  However, bearing in mind the consequent mixed anxiety and depression that arose from the accident, but which I find was adequately dealt with by the end of February 1999, I am satisfied that sum of HK$30,000 is adequate to compensate Madam Chan, in respect of any pain and suffering arising from the accident.  She is entitled to loss of wages for the period from the date of the accident to the end of February 1999, which I assess at $13,500.00.  In this respect she must give credit for any workers compensation she has received.  As she has no residual disability arising from the accident no further damages are payable.

27.As she has succeeded in securing an award of damages, albeit greatly less than that claimed, she is entitled to her costs which are to be taxed on a party and party basis.  The costs order is an order nisi, to be absolute the expiration of 21 days, failing any application.

Mr Louie K K Mui, instructed by Messrs Lam, Lee and Lai, for the Plaintiff

Mr Peter T K Wong, instructed by Messrs Dibb Lupton Alsop, for the Defendant