Law Bo Bo v. Hospital Authority

HCPI 506/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 506 OF 2005

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BETWEEN

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Before : Hon Suffiad J in Court

Dates of Hearing : 10 and 11 April 2006

Date of Judgment : 1 June 2006

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J U D G M E N T

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1.The plaintiff claims damages against the defendant for personal injuries sustained by her on 27 August 2002 in the course of her employment when she fractured and dislocated her left wrist while trying to open the main door of one of the hospital wards upon the following causes of action :

(a)      Negligence of the defendant as her employer;

(b)     breach of employment contract;

(c)     breach of occupier’s liability and statutory duty.

2.By an order of the P.I Master made on 25 November 2005, the issue of liability is to be separately tried from the issue of quantum.  This judgment therefore deals only with the trial on the issue of liability.

Background

3.The plaintiff was employed as a health care assistant by the defendant working at the Queen Mary Hospital (“QMH”).  The term of the employment contract was for two years from 1 January 2000 to 31 March 2002.

4.In about July 2001 the plaintiff was assigned to work in Ward K19S of QMH.

5.Ward K19S has only one main door leading into and out of the ward (hereinafter called “the Main Door”).  Some time after the accident to the plaintiff, the Main Door was changed to an electric automatic swing door.  However, before the accident, it was not an automatic door.  Unless otherwise stated, all references to the Main Door in this judgment would be references to the Main Door before it was changed to an automatic swing door.

6.The Main Door had two door panels, one on each side, and both panels swing inward into Ward K19S to open.  There was only one door handle which is situated on the left side panel as one faced towards Ward K19S standing outside the Main Door when entering the ward.

7.Both panels of the Main Door were equipped with a spring mechanism which swings the door close after it is pushed open.  However, both panels could be kept in the open position when pushed back to its fullest as there are magnetic catches installed behind each door panel which would, by its magnetic force, hold the door panel and prevent it from swinging close thereby keeping it open until the door panel is manually detached from the magnetic catch by some force.

8.The Main Door was a fire door.  It is also common ground that as such, when the fire alarm system was operating and activated, the magnetic catches behind the two door panels of the Main Door would be demagnetized thus ensuring that the Main Door cannot be kept or remain open in case of a fire, but would be closed.

9.At certain times of each day, the Main Door would normally be kept open by the use of the magnetic catches behind the two door panels as for instance during visiting hours.  There are however other times in the day, as for instance during ward rounds by the doctors or when privacy was required, when the Main Door would be closed.  Even when closed, the Main Door was never locked.

The accident

10.On 27 August 2002, the plaintiff was working on the “A” shift which is from 6.00 a.m. to 2.00 p.m.

11.At about 1 p.m., just shortly before her shift ended, the plaintiff collected lunch equipment and utensils from Ward K19S after the patients of Ward K19S had finished their lunch.  The equipment collected were placed on a food trolley by the plaintiff to be transported out of Ward K19S.  As the plaintiff approached the Main Door to go out of Ward K19S with the food trolley, she noticed that the Main Door was closed. She also noticed that the fire alarm lights were illuminated and flashing.  The plaintiff tried to open the Main Door and to attach the door panels to the magnetic catches but found that the magnetic catches were demagnetized so that both panels of the Main Door could not be held in the open position by the catches.

12.The plaintiff then managed to open sufficient of the Main Door and succeeded in pushing the food trolley out of Ward K19S.

13.After depositing the food trolley outside Ward K19S, the plaintiff proceeded to return to Ward K19S to continue with her duties there.  When she approached the Main Door of Ward K19S to return into the ward, it was still in the closed position.

14.The evidence of the plaintiff was that she used her left hand to turn down the door handle (which was on the left side door panel) in order to push open the left door panel, but could not open it.  She made a second attempt, this time using both hands to push down the door handle, and also using her shoulder and upper body to push against the left door panel.  On this attempt she managed to push open the left door panel, but in doing so she felt pain in her left wrist and in fact yelled out in pain as she entered the ward.  At the time when she yelled out in pain and was holding her left wrist, she met a colleague in Ward K19S by the name of Helen, whereupon Helen in fact asked her if she had hurt her wrist.  In reply, the plaintiff said it was no big deal.

15.The plaintiff did not think much of the pain to her left wrist at the time, and as there was less than an hour before her shift ended, she did not inform the head nurse of the pain to her left wrist but continued with her work.

16.The plaintiff returned home after her shift ended at 2 p.m. with her left wrist still painful.  She was again on duty that same day for the night shift which starts at 10 p.m.

17.When she came on duty at 10 p.m., the plaintiff was assigned to work in a different ward, Ward K20S.  During her work on that night shift, the pain in her left wrist became unbearable to her and she informed the duty nurse, Ms Fung, of it.  At the suggestion of Ms Fung, the plaintiff attended the Accident and Emergency Department (“A and E Dept”) of QMH at about 2.20 a.m. 28 August 2002.

18.At the A and E Dept she was seen by a Dr Wan who prescribed antibiotics to her for the pain to her left wrist but no X-rays were taken.  She was given one day’s sick leave.

19.In fact no X-rays were taken of the plaintiff’s left wrist despite follow-ups by her until 9 September 2002 which was over 10 days after the accident when an X-ray revealed that she had sustained a fracture and dislocation of the wrist bone to her left hand.

20.In about October 2002 when the plaintiff returned to Ward K19S to hand in sick leave certificates to the ward manager, she noticed that the Main Door had been replaced by a new electronic automatic swing door.

Plaintiff’s evidence on disputed issues

21.The plaintiff was the only witness who gave evidence for her own case.

22.Primarily it was the case of the plaintiff that the Main Door was at the time of the accident, and had for quite some time before that, been tight and heavy making it difficult to open to such an extent that it was rendered defective and unsafe resulting in the injury to her wrist when she had to exert such force to open it on 27 August 2002.

23.The plaintiff gave evidence that there had been a number of complaints made by herself and her colleagues relating to the Main Door being difficult to open.  Such complaints were made to Peter Chan Pak Hing, the ward manager of Ward K19S.  The plaintiff herself had complained to Manager Chan both before and after the accident to her.

24.The plaintiff also gave evidence that some time in mid-2002 she had seen workers doing repair work to the hinges of the Main Door.

25.A further factual issue raised by the plaintiff but disputed by the defendant was that at the time of the accident, she had seen the red fire alarm light of Ward K19S flashing.  In her evidence she said that the red fire alarm light was inside the ward just beyond the entrance of the Main Door behind the door panel when it was opened.

26.Thirdly, the plaintiff gave evidence that before the accident to her, she had on occasions seen a written notice posted up at the Main Door of Ward K19S written in Chinese with words to the effect “Please push with force”.

27.Fourthly, the plaintiff also gave evidence that after the accident to her, but before she went off duty on the “A” shift, she had seen the Main Door being held open by wooden wedges.

Defence evidence

28.Two witnesses were called for the defendant, Peter Chan Pak Hing, the ward manager of Ward K19S and Helen Yung Hoi Yan, a ward clerk of Ward K19S at QMH, being the same person referred to by the plaintiff as ‘Helen’ who came across the plaintiff at the time of the accident when the plaintiff entered Ward K19S.

29.Before going into the evidence of these two witnesses called by the defendant, it should be noted that the defendant, through its counsel, has conceded throughout the trial that the plaintiff’s injuries were caused in the course of the plaintiff pushing open the Main Door on 27 August 2002 albeit that the defendant does not admit that the accident (and therefore the injuries of the plaintiff) happened in the way described by the plaintiff.

30.It was the evidence of Chan Pak Hing that for the 8 years that he had been the ward manager of Ward K19S up to the time of the accident to the plaintiff, he has never received or heard of any complaint by anyone including the plaintiff either orally or in writing concerning the Main Door being difficult to open and that in all that time, he has found the Main Door to be smooth and easy to open without any difficulty.

31.It was also his evidence that even after he came to know of the accident to the plaintiff, the plaintiff had never complained to him about the Main Door being difficult to open.

32.He further gave evidence that on the day of the accident on 27 August 2002, the fire alarm light in Ward K19S did not go off or illuminate as alleged by the plaintiff.  The fire alarm light is a conspicuous red flashing light and if it had gone off, it could not be missed by people in the ward.  Moreover, he has checked the records and nothing in the records indicate that the fire alarm lights had gone off on that day.  He also produced a letter from the fire services maintenance provider which states categorically that no fire alarm was recorded in Ward K19S on the day in question.

33.It was also Chan’s evidence that he has never seen or approved any written notices being posted up on the Main Door as alleged by the plaintiff with words to the effect of “Please push with force”, and that if such a notice was posted up on the Main Door, he, as the ward manager, would have to approve it.

34.Chan also said in his evidence that no wooden pieces of door wedge has ever been used to keep the Main Door open either on 27 August 2002 or any other time, and that there was no need to use such door wedges since the Main Door could be kept open using the magnetic catches behind the door panels.

35.Lastly, Chan said that the Main Door at the entrance into Ward K19S was replaced by new automatic swing doors some time in September 2002 but that replacement was part of a renovation plan which had been approved some time before the accident to the plaintiff and that documentary evidence produced by the defendant shows that the order for the new automatic swing door for the entrance into Ward K19S was confirmed on 11 July 2002.

36.The second witness Helen Yung Hoi Yan gave evidence of her encounter with the plaintiff just about the time of the accident.  In summary, her evidence which was contained in her witness statement (adopted by her as her evidence-in-chief) was as follows.

37.She did not actually witness the accident to the plaintiff on 27 August 2002.  However, at that time she was in the corridor inside Ward K19S about 10 feet from the Main Door when she suddenly heard a shout from the plaintiff of “aiyo”.  She saw the plaintiff and asked her what happened.  The plaintiff answered that her hand might be injured.  Helen then asked the plaintiff if she needed help to which the plaintiff replied that it was nothing special and did not need help.  Helen then continued with her work and paid no more attention to the plaintiff.

38.During that brief encounter with the plaintiff, Helen’s evidence was that the plaintiff did not mention anything about the Main Door or any difficulty or problem with opening it.

39.Included in her witness statement were also the following evidence.

40.She had been working inside Ward K19S since November 1997.  On each day, she would need to go in and out of Ward K19S not less than 5 times on average via the Main Door being the only entrance in and out of that ward.  The Main Door was not heavy and could be opened easily and she had never encountered any problem with that pair of doors.

41.During the time that she was working in Ward K19S, she had never heard of any complaint about any problem with the Main Door failing to open properly.  Neither did she hear of any such complaint from the plaintiff.

42.Also during the same time, she did not see any notice posted on the Main Door with words to the effect “Please push with force”.

43.As for the fire alarm light installed in Ward K19S she gave similar evidence to that of Peter Chan Pak Hing.  She also produced a sketch showing the location of the fire alarm light, one inside Ward K19S and another one located in the lobby outside the ward entrance.  (The location of the fire alarm lights on the sketch being very different from where the plaintiff says the alarm light was located.)  She could remember that on the day of the accident to the plaintiff, the fire alarm light had not been activated.

44.She had never seen the Main Door being kept open by wooden wedges at the entrance of Ward K19S since the doors could be kept open by magnetic catches, but did not pay attention to such on the day of the accident.

45.The above summary of Helen Yung’s evidence was her evidence as contained in her witness statement which was adopted by her as her evidence-in-chief.

46.However, when she was in the witness box and asked by defence counsel to elaborate on the contents of her witness statement, she came out with some evidence quite different from what was contained in her statement (which was adopted by her).

47.In the witness box when giving evidence-in-chief, Helen Yung confirmed what was stated in her witness statement as to the Main Door being easy to open, but qualified it by saying that she had heard of complaints from other colleagues relating to the Main Door, that if the left side and the right side (of the door panels) was opened independently, it was troublesome.  She also said that she had heard the plaintiff say at some time (before the accident to her) that the Main Door was troublesome.

48.Under cross-examination by counsel for the plaintiff on this aspect of her evidence, she initially confirmed that a number of colleagues had complained that when the right side and the left side of the door panel was opened independently, it was troublesome.  She also said that although she herself was not the person to receive such complaint, she would tell either the ward manager or the head nurse of such complaint and had in fact done so before 27 August 2002 (i.e. the date of the accident to the plaintiff).  Moreover, she said that such complaints were commonly known to the people working in Ward K19S.

49.However, upon being further cross-examined by the plaintiff’s counsel on this matter, Helen Yung said that the complaints she was telling the court about concerned difficulty of workers in Ward K19S trying to open both door panels of the Main Door at the same time when their hands were occupied with carrying things like files and documents.  She also elaborated that it was only when large objects like a stretcher was being pushed into the ward that both door panels would have to be opened at the same time.

50.In re-examination she said that there were on average, about one or two such complaints a day concerning it being troublesome when both door panels had to be opened at the same time.

51.When asked why was it troublesome since each door panel could be pushed individually to its fullest and thereby held by the magnetic catch behind the door before the stretcher was pushed through, she answered saying that when one was in a hurry, then both door panels would have to be opened at the same time, and not individually.

52.Helen Yung was also cross-examined as to the amendment she sought to make to paragraph 9 of her witness statement at the start of her evidence in chief in relation to the location of the fire alarm light inside Ward K19S.

53.In paragraph 9 of her witness statement, it was originally stated (before amendment) that the fire alarm light was situated “next to the pair of doors at the entrance” which would appear to be just about where the plaintiff says the fire alarm light to be.  However, annexed to her witness statement was a sketch showing the location of the fire alarm light inside Ward K19S which is very different from what was originally described by her in paragraph 9 of her witness statement.  At the start of her evidence-in-chief, Helen Yung sought to amend what was stated in paragraph 9 of her witness statement to bring it in line with what was shown in the sketch before adopting the witness statement as her evidence.

54.It also became apparent in her evidence that the sketch annexed to her witness statement showing the location of the fire alarm light was drawn not by her but by Peter Chan Pak Hing which was adopted by the plaintiff and annexed to her witness statement.

55.Helen Yung’s explanation as to how the mistake came about in the original paragraph 9 of her witness statement was that when she was standing inside the corridor of Ward K19S and saw the fire alarm light which was outside Ward K19S through the glass pane of the door panel of the Main Door, she had mistaken that fire alarm light to be “next to the doors at the entrance”.

56.She also tried to explain that when she was shown her witness statement prepared by the solicitors from her oral statement given to them, she had misunderstood the reference to the fire alarm light “next to the pair of doors at the entrance” to be a reference to the fire alarm light outside Ward K19S.

Assessment of the evidence and findings of fact

57.Having heard the plaintiff give evidence and seen her perform in the witness box, I found the plaintiff to be a straightforward witness.  She spoke in the witness box with conviction.  The evidence given by her were also consistent and not dented the least in cross-examination.  There is only one aspect of her evidence which I do not accept relating to the location of the fire alarm light, but I find that resulted from an honest mistaken belief, the same mistake as was made by Helen Yung, which I shall deal with below.

58.On the other hand, I cannot say the same for the evidence given by both defence witness.

59.In the case of Peter Chan Pak Hing, the ward manager, called by the defendant, there are two major areas of his evidence which cause me much reservation as to the reliability of his evidence, in particular the evidence relating to the main issue in this case, namely, whether the Main Door was defective in the way alleged by the plaintiff, or whether it was free from such defect as alleged by him in his evidence.

60.The first matter is his evidence that he had never received any complaint about the Main Door.  That evidence is, not surprisingly, contradicted by the plaintiff’s evidence as to the Main Door and her numerous complaints about it even before the accident.

61.What is surprising is it is also contradicted by the evidence of the second defence witness, Helen Yung, who said that she had received complaints concerning the Main Door which she had passed on to the head nurse and/or the ward manager.

62.Secondly, Chan gave evidence that after receiving the plaintiff’s written account of the accident in a letter (which he passed on to Manager Wong) in which letter he understood the plaintiff to be saying that great force had to be used to open the Main Door, which allegation did not tally with his own inspection of the Main Door on or about 7 September 2002, he did not even bother to make known the results of his own investigation of the Main Door (which contradicted the allegations of the plaintiff) to those whom he knew would, in due course, be compiling an accident report as to the cause of the accident to the plaintiff relating to the Main Door.

63.As for the second witness called by the defendant, she is a wholly unimpressive witness.  In fact, her evidence was not only self-contradictory in a way which I shall describe later, but that being self-contradictory, it also had an effect in an indirect way of being capable of supporting the plaintiff’s evidence.

64.I have already summarized in an earlier part of this judgment the gist of her evidence and have taken care to detail that part of her evidence contained in her witness statement adopted as her in-chief as well as what was said by her in the witness box both in-chief and under cross-examination which seemingly departed from her witness statement.

65.I do not propose to repeat that evidence of hers again.

66.My views of the totality of her evidence is that she well knew there had been complaints for a long time before the accident to the plaintiff concerning the Main Door which was a matter well known to all working in Ward K19S.

67.However, having stated in her witness statement that the Main Door was smooth and easy to open, she had to reconcile between the door being smooth and easy to open with the fact that there had been numerous complaints by a number of people concerning the Main Door.  This was where the anomaly in her evidence crept in to make it incredulous.

68.Her initial answer when initially cross-examined that if the left or right side of the door was opened independently, that would be troublesome, does not sit well with her later attempted explanation that what she wanted to say was that a person with her hands occupied would find it difficult to have to open both doors at the same time.

69.It also makes a mockery of the fact that if the Main Door was easy and smooth to open, a person could always push open one side of it until it is attracted by the magnetic catch behind and then similarly for the other side.  When this was pointed out to her, it prompted further change in her evidence to say that at times, such persons having to open the Main Door would be in a hurry to do so.

70.Finally, even granted these explanations by her, it is difficult to see how or why such circumstances could be the subject of complaints which she would have to channel to the head nurse or the ward manager in the sense that such difficulty arise from the fact that the people having the difficulty in opening the Main Door, such difficulty stems from their hands being occupied and being in a hurry, and not from any defects of the Main Door.

71.A further aspect of Helen Yung’s evidence which I take into consideration in assessing the evidence in this case relates to a secondary issue in the case, namely whether the fire alarm light was flashing at the time the accident to the plaintiff occurred.  It also relates to the location of the fire alarm light inside Ward K19S.

72.Both these issues are secondary because they are relevant only in relation to the primary issue whether or not the Main Door was closed at the time of the accident to the plaintiff and could not be held open by the magnetic catch.  As pointed out by counsel for the plaintiff in his final submission, these secondary issue becomes irrelevant once the primary issue can be determined.

73.However, since the issues have been raised and conflicting evidence adduced by the parties, I will still need to resolve that factual conflict between them.

74.In her witness statement, Helen Yung initially stated that the fire alarm light was located inside Ward K10S “on the wall next to the pair of doors at the entrance”.  That puts the alarm light at a location not different from where the plaintiff said it was.

75.When Helen Yung came to the witness box, she corrected that part of her witness statement before adopting it as her evidence-in-chief, no doubt in the light of the position of the fire alarm light as indicated in the sketch annexed to her witness statement, but which was drawn by Peter Chan, the ward manager.

76.The explanation given by Helen Yung for getting the position of the alarm light wrong initially in her witness statement was due to the fact that when she was at the corridor (just inside Ward K19S and facing the Main Door) when she heard the plaintiff cry out in pain immediately after the accident, she said she saw the fire alarm light which was outside Ward K19S through the glass panel on the Main Door and thereby mistook that fire alarm light outside Ward K19S to be “next to the pair of doors at the entrance” to Ward K19S.

77.Based on that explanation given by Helen Yung, I am able to infer that firstly, the Main Door must have been closed for her say that she saw through the glass panel of the Main Door.

78.Secondly, I also infer from it that the fire alarm light must have been flashing at the time and it was because she saw the flashing red light of the fire alarm through the glass panel on the Main Door that she was misled into believing that the fire alarm light was located on the wall next to the pair of doors at the entrance.  (The evidence from all concerned was that the red flash from the fire alarm light was a very intense red flash.)

79.That indicates to me that the plaintiff very likely made the same mistake as Helen Yung did when she gave evidence that the fire alarm light which was inside Ward K19S was located on the wall by the side of the Main Door.  This is hardly surprising since the plaintiff first noticed the fire alarm light to be on and flashing was when she was pushing the food trolley out of Ward K19S and therefore facing a similar direction as Helen Yung did when she saw the red flash from inside the corridor of Ward K19S.

80.For these reasons stated above, I am prepared to accept the evidence of the plaintiff that the Main Door was a heavy fire door which, for reasons not gone into, took an excessive amount of force to push open when it was closed.  To that extent it was defective and that defect was the main cause of the accident to the plaintiff.

81.I accept the plaintiff’s evidence and find that the accident happened in the way that the plaintiff has described it.

82.I also accept the plaintiff’s evidence that such defect had been the subject of numerous complaint by a number of people and that defect as well as the complaints relating to it were well known to the ward manager, Peter Chan.

83.No doubt, it was because of that defect and the various complaints made before the accident to the plaintiff that the order was given in July 2002, several months before the accident to the plaintiff, to replace that Main Door with automatic doors.  Unfortunately, that was not done in time to avoid the accident to the plaintiff.

84.In so far as the issue of the fire alarm light is concerned, again for the reasons given above, I find that at the time of the accident to the plaintiff, the fire alarm light was flashing and that the effect from that was that the magnetic catch behind the two panels of the Main Door became deactivated.  I also find that because the fire alarm light was activated at the material time of this accident, the Main Door must have been closed.

85.However, I do accept the sketch plan annexed to the witness statement to show the correct position of the fire alarm light inside Ward K19S, but at the same time find that the plaintiff’s evidence of its position arose from an honest mistaken belief caused in the same way as the initial mistaken belief held by Helen Yung as to the position of the fire alarm light being on the wall next to the Main Door just inside Ward K19S.

86.As for the other two outstanding factual issue in dispute between the parties, namely whether there were wooden wedges used to wedge open the door shortly after the accident to the plaintiff and whether there were notices posted up on the Main Door warning people to push open the door with force, they also become irrelevant once the primary issue in dispute have been decided.

87.However, in view of the fact that I have accepted the evidence of the plaintiff and thereby rejected the evidence from the defence witnesses on the primary issues in dispute between them as being unreliable, I would also accept the evidence of the plaintiff on those two issues.

Liability

88.It was common ground that the Main Door was a fire door, and as such it will need to be a heavy door in the way that normal fire doors are.

89.Quite apart from being a heavy fire door, it would appear from the facts as found by me above, that the Main Door was also very tight and required great force to open.  Some indication of the force needed to open it can be seen from the fact that the plaintiff suffered a fractured and dislocated wrist bone attempting to do so.  Such then was the degree of defectiveness of the Main Door that it must have been a danger to anyone having to exert such an amount of force to open it when it was closed.

90.That defect with the Main Door had been known to the defendant through its ward manager.

91.The fact that such defect in the Main Door would likely cause some form of injury to someone must have been foreseeable to the defendant.  No doubt it was due to that that the order placed in July 2002 to change the Main Door to automatic door was given.  It however came too late for this plaintiff.  Apart from that order to change the Main Door, there is no evidence that anything else was done to remove the defect to the Main Door.  That failure to remove a known defect to the Main Door in the interim period before it could be changed to automatic doors was a breach of duty by the defendant as employer to the plaintiff.

92.The only conclusion that I can draw from the facts found is that the defendant was in breach of its duty to the plaintiff as an employer in allowing this situation with the defective Main Door to persist for such a long time, finally resulting in the accident to the plaintiff.  That breach of employer’s duty would be its failure to provide a safe place of work to the plaintiff.

93.Moreover, on the facts as found, the defendant would also be in breach of its common duty of care as an occupier.

94.I therefore find the defendant liable to the plaintiff for the accident to the plaintiff which occurred on 27 August 2002.

Contributory negligence

95.Contributory negligence had been pleaded by the defendant but had not been pursued at the trial on the issue of liability.

96.Even if it had been pursued, on the facts as found, I can see no fault of the plaintiff which would make her to any degree contributorily negligent.

97.In the circumstances, I do not find the plaintiff to have contributed in any way to the accident or the injury to herself.

Conclusion

98.Accordingly, there will be interlocutory judgment in favour of the plaintiff with damages to be assessed.

99.The parties are to fix a date through the Listing Clerk for a further Pre-Trial Review before the Personal Injuries judge to follow up on the quantum aspect of this case.

Costs

100.There will be a costs order nisi that the costs of the action on the issue of liability including this trial be to the plaintiff to be taxed if not agreed.

101.The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr Erik Shum, instructed by Messrs Yip, Tse & Tang,  for the Plaintiff

Miss Phillis Loh, instructed by Messrs Cheng, Yeung & Co.,  for the Defendant