Cheung Yuen Fan Sally v. The Hong Kong University of Science & Technology
Read the full judgment text of HCPI 106/2003 on BabelCite. This High Court CFI judgment was delivered on 12 March 2009.
1. The plaintiff claims damages for personal injuries against the defendant which injuries were sustained in the course of her employment with the defendant on two separate occasions on 30 January and 14 February 2000.
Cited by 2 cases
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HCPI 106/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NOS. 106 AND 107 OF 2003 --------------------- BETWEEN
---------------------- (Consolidated pursuant the Order of Before : Hon Suffiad J in Court Dates of Hearing : 1-3 December 2008 Date of Judgment : 12 March 2009 ------------------------ J U D G M E N T ---------------------- 1.The plaintiff claims damages for personal injuries against the defendant which injuries were sustained in the course of her employment with the defendant on two separate occasions on 30 January and 14 February 2000. 2.It is not disputed that the plaintiff was, at the material times, employed by the defendant as an attendant and was working at the student hostel in the campus and operated by the defendant known as UG2, a building with some eleven floors. 3.The duties of the plaintiff included cleaning as well as the collection and disposal of garbage from the hostel and dormitories at UG2. 4.It is the plaintiff’s case that on 30 January 2000, she was on B shift working together with another attendant. 5.At the end of her working shift, at about 10.30 p.m., after she had completed the collection and disposal of the garbage, the plaintiff experienced pain swelling and redness in her right wrist. 6.Consequently, on the next day (1 February) the plaintiff consulted Dr Lim Chaw Nam at the Excel Health Medical Centre (“EHMC”) and was diagnosed as suffering from right wrist tendonitis. She was given five days of sick leave by Dr Lim. 7.The plaintiff followed up by consulting Dr Lim again on 3 February when her sick leave was extended by Dr Lim and again on 8 February when the plaintiff was given a further five days of sick leave. 8.The plaintiff returned to work on 13 February 2000 which was a Sunday when her duties were comparatively lighter than other days. 9.On 14 February, the plaintiff was rostered on the A shift. She requested for lighter duties from her superior Wan Yuk Kan (referred to in evidence as “Kan Tse” or “sister Kan”), but that request of hers was refused by Kan Tse. 10.By around midday on 14 February, after carrying out some garbage disposal, the plaintiff could not cope with the pain which she said was affecting her whole upper right limb. As a result the plaintiff took leave to consult Dr Lim again. 11.After consulting Dr Lim, the plaintiff was admitted to the St. Teresa’s Hospital and referred to an orthopaedic specialist Dr Gary P.K. Ng. 12.By June of 2000, the plaintiff was diagnosed as having chronic regional pain syndrome involving the right side of her body. PLAINTIFF’S CASE ON LIABILITY 13.The plaintiff was initially granted legal aid and the pleadings and witness statements were prepared for her by her legal team instructed by the Legal Aid Department. 14.However legal aid was discharged in July 2008, and by the time the trial came on, the plaintiff was acting in person. 15.On the issue of liability, a number of allegations were made by the plaintiff against the defendant as follows :
16.The plaintiff called as her witness the elder sister of the plaintiff who also worked as an attendant employed also by the defendant at the defendant’s university to substantiate her allegations. THE DEFENDANT’S DEFENCE ON LIABILITY 17.The defendant took issue with whether the two accidents alleged by the plaintiff did occur on the basis that the plaintiff, at the material times, had only informed the defendant of her injuries but had not mentioned anything about any accident occurring either on 30 January or 14 February. The defendant said that it was only some time around 23 March 2000 when the plaintiff gave them a written report that there was mention of the two accidents by the plaintiff. 18.The defence also said that trolleys had been provided by the defendant for use by the attendants to transport the garbage from the upper floors to the rubbish room on the ground floor and that adequate and proper training for handling the garbage had been given to all the workers. 19.The defence adduced evidence to the effect that the defendant had set up SEPO and was at all times concerned with risk assessment and had provided adequate guidelines to all its workers as to the proper handling of garbage disposal by them. 20.Such evidence from the defendant came from Tai Kwok Keung (“Tai”), a supervisor of the Student Affairs Office and Cho Fu Shing Lewis (“Cho”), an Executive Officer of the Student Housing Office. FINDING OF FACT 21.There are a number of factual issues in dispute between the parties. 22.Firstly, the defendant did not accept that any accident occurred to the plaintiff in the course of her work. 23.On this issue, I have no hesitation in accepting the evidence of the plaintiff that while in the course of her work she had suffered pain in her wrist on 30 January and again on 14 February 2000 when on the second occasion the pain was not only to her wrist but to the entire right arm. That evidence of hers was supported by the medical evidence from Dr Lim. 24.The dispute from the defendant on this issue arose because the defendant’s case was that the plaintiff had only mentioned about her injury without saying anything about any accident at work, and that it was only much later in March 2000 that the plaintiff told of her accident when she gave a written report. 25.I have difficulty accepting that evidence of the defendant for the following reasons. 26.There is evidence from Dr Lim that the plaintiff had first consulted him on 21 January 2000 (some ten days before the first accident) and that she was suffering from right wrist tendonitis likely due to sprained injury at work. 27.Given that the plaintiff was already suffering from right wrist tendonitis some ten days before her first accident, and that she must have told Dr Lim that it was caused from her work for Dr Lim to make that note, I can see no good reason why the plaintiff would not tell the defendant that her injury were work-related if she could tell them of the injury to her wrist both in relation to the first and the second accident. 28.Secondly, the evidence of Cho is wholly unimpressive on this point. His evidence was that during the period between the first and second accident to the plaintiff, he could remember the plaintiff phoning him and telling him of his wrist injury but said that the plaintiff made no mention of any accident at work. 29.One would have thought that as the Executive Officer in charge of the workers, the first thing that Cho would have wanted to know when told by the plaintiff of the wrist injury was whether that injury was work related or not. Yet, when asked whether he had enquired of the plaintiff on the phone as to the cause of that wrist injury, his answer was that he cannot recall. 30.Thirdly, the second accident to the plaintiff on 14 February was such that the plaintiff left her work at about noon time, before her shift ended, to seek medical attention. The fact that the plaintiff left work at about noon time was recorded in writing in the daily record by the defendant and was a matter known to both Kan Tse and Tai since they both signed against that entry recording the plaintiff’s departure from work to consult a doctor. 31.In the circumstances since the plaintiff had to leave her work before her shift ended to consult a doctor, it would take very little for the defendant to deduce that whatever injury the plaintiff sustained, it was likely to be sustained in the course of her work. 32.The defendant cannot hide behind the fact that the plaintiff did not specifically mention any accident since even on the plaintiff’s own account there is no actual accident such as a fall or any specific trauma, but that the plaintiff experienced pain to her wrist or to her arm when carrying out her work. 33.There is also evidence before me in the form of photographs taken by the plaintiff showing the rubbish room located on the ground floor of UG2. The photographs show the large dustbin into which the garbage bags have to be thrown by the attendants when disposing of the garbage. The dustbins are shown to be of a height as high as chest level of a normal person. That effectively means that the plaintiff, as well as the other attendants, would have to lift up the bags of garbage to almost head high before they could be thrown into these dustbins for disposal. 34.It is the plaintiff’s evidence that for both the accidents on 30 January and 14 February 2000, she experienced pain in her wrist and her right arm after disposing of the garbage bags into the dustbins on the ground floor rubbish room. 35.I find as a fact that the likely cause of the injury to the plaintiff’s right wrist and right arms on both occasions of the two accidents were due to her having to lift up the numerous garbage bags to throw into the dustbins. 36.On the issue as to whether the plaintiff had requested for lighter duties after the first accident, I have no hesitation in accepting that evidence of hers. 37.In cross-examination, Cho conceded that the plaintiff did make such a request to him and he had passed on this request to Tai. How Tai dealt with that request, Cho was unable to say. 38.As for the plaintiff’s evidence that on 14 February 2000 she was told by Kan Tse to carry out her normal duties since she was able to attend work, Kan Tse not having been called to give evidence, there is no evidence from the defendant to dispute that evidence of the plaintiff. In the absence of any evidence to challenge that evidence of the plaintiff, I accept that evidence of the plaintiff’s as to what Kan Tse told her to do. 39.There is no dispute between the parties that the rubbish chute relating to UG2 had been closed and blocked off since 1999, which was before the two accidents to the plaintiff in 2000. 40.The plaintiff in her witness statement (which was adopted as her evidence) had given an episode when she was asked by the hall student representative (a Mr Ho) why the attendants did not use the refuse chute to dispose of garbage bags instead of moving them manually. The plaintiff told him that Kan Tse had prohibited the use of the refuse chute and when Kan Tse was confronted by Mr Ho together with the plaintiff over this issue, Kan Tse had explained to Mr Ho that the refuse chute was not used because students had complained to her about the noise it caused. 41.Nothing was stated by the defendant either in its pleadings or in any of the witness statements concerning the closure of the refuse chute, and more importantly the reason for that closure. 42.It was only when Tai were asked about it in cross-examination that he said that the reason for the closure of the refuse chute was due to the fact that very often the chute was blocked due to its narrow passage when students disposed of rubbish down the chute. 43.However, in this respect, he was not supported by the other witness called by the defendant, Cho. Cho’s evidence was that although he joined the defendant in 1998, he did not know about the refuse chute being closed until after the time of the two accidents to the plaintiff. He was therefore unable to say what was the reason for the closure of the chute. 44.For these reasons, I am not disposed to accepting the evidence of Tai as to the reason for the closure of the refuse chute. I prefer the evidence of the plaintiff on this issue. It is unreasonable that the refuse chute (which must have been built for the disposal of refuse) would be closed permanently due to occasional blockage of it. On the other hand, complaints by students may cause the refuse chute to be permanently disused so as to obviate such complaints. 45.On the issue as to provision of trolleys for use by the attendants, I accept that trolleys were provided by the defendant for use both by the attendants and also the students. However, it would appear that the attendants prefer to bring along and use their own trolleys. The reason for that was that the attendants (including the plaintiff) was able to attach a net to their own trolleys which net served to prevent the garbage bags from slipping off the trolleys while being transported. The trolleys provided for use by the defendant did not have such a net attached and therefore were not preferred for use by the attendants. 46.As for the training and guidelines, I can accept the evidence of the defendant, which were not disputed by the plaintiff, that trainings and guidelines were provided to the attendants to assist them in carrying out their work. LIABILITY 47.The issue of liability can be determined by two of the factual issues on which I have found above. 48.Firstly, the blocking off of the refuse chute by the defendant is sufficient to determine liability in this case. 49.The refuse chute was an inbuilt system into the building UG2 whereby refuse could be disposed of by simply dumping same into the refuse chute on each floor. 50.It was not disputed by the defendant that the refuse chute was blocked off by having same welded such that it could no longer be used by the attendants to dispose of the rubbish. Instead, each of the attendant will have to manually dispose of the garbage collected by them by transporting such garbage to the ground floor and manually throwing the garbage bags into the big dustbins in the rubbish room. It was in doing just that that the plaintiff injured her right wrist and her right arm in the two accidents. 51.While the defendant may well have taken into account the complaint by the students as to noise from the refuse chute, they also owed a duty of care to all the attendants in depriving them of a more efficient and less hazardous method of disposing of garbage. 52.Moreover, in requiring the plaintiff and other attendants to manually dispose of the garbage bags, the defendant could and should have made it less hazardous for the attendants by providing some sort of raised platform or steps in the rubbish room such that the attendants would not have had to raise the rubbish bags to a height of about head high before being able to throw the garbage bags into the dustbins there, since the dustbins were of about chest height. This they did not do. It was something that could have been reasonably expected of the defendant as an employer. 53.Nor can the defendant now be heard to say that they had provided the necessary guidelines and training, including instructions to the attendants to decide themselves as to what should be the weight of each bag of garbage which they had to dispose of. 54.Whatever the individual weight of each bag of garbage, ultimately an attendant will still have to lift up and throw into the dustbin the total amount of garbage collected, irrespective of the number of bags such garbage may be split into. Likely, the injury to the plaintiff would have come about due to the total amount of garbage she had to lift up and throw during her shift and not from any one individual bag. 55.In short the defendant chose to give effect to the complaint by the students as to the noise of the refuse chute but in so doing ignored their duty to provide a reasonably safe working environment to the attendants. 56.For these reasons I therefore find the defendant to have been in breach of its duty to the plaintiff in both the first and second accident. 57.As for the second accident, the defendant was further in breach of its duty to the plaintiff as the plaintiff’s employer when it failed to accede to the request of the plaintiff to put her on lighter duties due to the injury to her right wrist sustained in the first accident. 58.The garbage which she had to collect would be contained in garbage bags which would weigh between 30 to 80 lbs. If the garbage bags were as heavy as 80 lbs, the plaintiff would not be able to handle it but would have to split them into smaller bags the weight of which she could handle. CONTRIBUTORY NEGLIGENCE 59.It was argued by the defendant that I should find the plaintiff to have been contributorily negligent for between 15% to 25% on the basis that the plaintiff failed to exercise care by not asking for help when she was already suffering from tendonitis before the first accident; failed to inform the defendant that she did not know how to dump the rubbish, and failed to use her common sense since she had been an attendant for so many years. 60.I am not persuaded that any of the reasons put forward by the defendant should lead me to find contributory negligence on the part of the plaintiff in this case for the following reasons. 61.Contributory negligence is based on fault, normally the plaintiff’s own fault. 62.On the facts as I have found them in this case, and the basis for the liability of the defendant, I can see no fault coming from the plaintiff for her two accidents. 63.As to the first point put forward by the defendant, namely the failure of the plaintiff to ask for help, I reject that submission. 64.Although there was evidence that the plaintiff did consult Dr Lim on 21 Janauary 2000, some nine days before her first accident, and was diagnosed on that occasion as suffering from right wrist tendonitis, the evidence from the plaintiff was that by the time of the first accident, the right wrist injury for which she saw Dr Lim on 21 January 2000 had fully healed in the sense that she no longer had pain. Therefore there was no good reason for the plaintiff to ask for assistance in her work. 65.Moreover, since the plaintiff did request for lighter duties and was promised same by Cho, after the first accident, yet this request of hers was not acceded to by her immediate superior Kan Tse. 66.Then again I cannot see how the plaintiff could be blamed for failing to inform the defendant that she did not know how to dump the rubbish and for lack of common sense when it was the defendant who failed to implement a reasonably safe system of work for the plaintiff by closing off the refuse chute and replacing it with a system which required more labour for the manual disposal of the garbage bags but without providing some platform which could have reduced the height to which the plaintiff would have to lift the garbage bags in order to throw them into the dustbins. 67.I therefore do not find any contributory negligence on the part of the plaintiff for either of the two accidents. QUANTUM Injuries and treatment 68.The plaintiff initially consulted Dr Lim at the EHMC on 21 January 2000 and was found to be suffering from right wrist tendonitis and was given anti-inflammatory medication. After the first accident, when seen again by Dr Lim on 1 February, the pain and swelling was getting worse with very limited range of movement. 69.After the second accident, the plaintiff again consulted Dr Lim who referred her to a specialist orthopaedic surgeon, Dr Gary Ng. Dr Ng found the plaintiff, upon examination, to have limited movement of right shoulder and right wrist with diffuse tenderness. Four injections were given between 26 February and 14 March 2000 which gave some temporary relief to the plaintiff. Thereafter, the plaintiff developed symptoms of on and off swelling and temperature fluctuation of right upper limb. The plaintiff was admitted into St Teresa’s Hospital and an MRI was taken on 3 May of her right shoulder which was found to be normal. However, the pain persisted and spread to the right side of the neck, shoulder, arm, forearm and hand. After applying ice the situation worsened and there was swelling of the whole right upper arm. 70.The plaintiff was then treated at the United Christian Hospital’s Orthopaedic and Traumatology Department. 71.In June 2000 the plaintiff was seen by Dr David Fang who diagnosed her to suffer from chronic regional pain syndrome. Upon examination Dr Fang found gross restriction of neck motion, with right arm pain during neck extension especially combined with right rotation. 72.The plaintiff was admitted into Hong Kong Sanatorium & Hospital in mid June 2000. She was treated with analgesic and anti-inflammatory agents. MRI taken of the cervical spine showed reversal of lordosis at C3-4 where there was a right postero-lateral disc prolapse with narrowing of the cervical canal. 73.Between October 2000 and February 2001, the plaintiff was admitted into MacLehose Medical Rehabilitation Centre (“MMRC”) for five months for physiotherapy. Upon discharge in February 2001 the plaintiff had regained 50% ability. 74.Thereafter, the plaintiff was referred to the Pain Team and the Department of Orthopaedic and Traumatology of Queen Mary Hospital (“QMH”) for management of her pain. 75.However, she continued to be afflicted by pain to her right upper limb, the neck and back. She was given continuous sick leave right up to 12 July 2002. Thereafter she was given intermittent sick leave. 76.In March 2003 her neck pain was assessed by Dr Chan Ying Kei who found no neurological deterioration and only vague signs of cervical myelopathy. 77.By February 2004, her condition was stated to be static by Dr Cheung Wai Yuen of QMH. She still had residual neck pain but her upper limb muscle power had returned to normal and she had no sensory loss. 78.In April 2004, the plaintiff consulted Dr Albert C.H. Leung for chiropractic treatment. After examining her, Dr Leung made the following prognosis of the plaintiff :
79.Dr Leung advised the plaintiff to receive conservative chiropractic treatments at least once per week for six month for the medium term, and for long term to continue with chiropractic treatment at least twice per month to avoid aggravation of her condition as a maintenance measure. 80.The condition of the plaintiff in January 2005 was stated by Dr To Kai Tsun Michael of QMH as being stable with no further deterioration, but that she still had neck pain which required regular analgesic. 81.From 21 January to 2 February 2007 the plaintiff was admitted into Tseung Kwan O Hospital (“TKOH”) when she experienced low back pain after bending her body to pick up objects. She was also found to have hypertension and diabetes during admission. Although she was able to walk, she had requested for a wheelchair for mobilization. 82.When the plaintiff attended court for trial, she was in a wheelchair throughout the course of the entire proceedings. EVIDENCE AND OPINION FROM EXPERTS 83.The plaintiff was examined by Professor Leung Ping Chung of the Faculty of Medicine, Chinese University of Hong Kong, an expert in orthopaedics instructed by the plaintiff, on 22 December 2005. 84.In his expert report dated 5 January 2006, Professor Leung’s diagnosis and prognosis of the plaintiff was that she had sustained right wrist sprain described as swollen right wrist in the accident, but that the symptoms gradually shifted to the neck and back in the next few months. That was typical of “hand-shoulder symptom” or “muscle dystrophy” or “sympathetic hyperreflexia” or “autonomic system disturbances”. Due to the bulging intervertebral discs in the back, her attention shifted to her neck and back and she became more disturbed. It is well known that sympathetic hyperreflexia is often related to psychological disturbances, sleep disorders and generalized disability. Her complicated social background probably enhanced the functional disabilities. Given that four years had passed when he examined her, Professor Leung stated that the prognosis for a full recovery should be poor. 85.Professor Leung also took the view that physically the wrist pain was over and that the organic pathology behind the neck pain was mild. However, the long existence of sympathetic hyper-reflexia was crippling the plaintiff. She would have been physically more capable had she not been disturbed psychologically. 86.Professor Leung opined that her employment prospect must be extremely poor given her sympathetic hyperreflexia which did not allow her to even stay in consistent posture. 87.Professor Leung also opined that the urological symptoms of the plaintiff was not related to the injury from the accident. 88.Professor Leung also stated that because a of the plaintiff’s pain, stiffness and numbness, she would enjoy the treatment given by the chiropractor or masseur. 89.Professor Leung was further of the view that psychotherapy will help her but would not guarantee her complete recovery. The plaintiff had to realize that although her condition could have been triggered off by the injury she sustained, it could not be solely explained by the injury alone and that she still had to overcome her own problems. 90.Orthopaedic treatment will not offer much since the plaintiff’s problem has a strong musculo-skeletal origin and yet it is also psychosomatic. 91.In a supplemental report dated 13 June 2006, Professor Leung further opined that the plaintiff suffered a moderate to mild state of sympathetic hyperreflexia manifested as cervico-shoulder-arm syndrome and fasciitis. She would not be able to return to working as a refuse disposer and sick leave would be justified as long as the syndrome lasted. After full control of the syndrome, she could find another job, otherwise she could not be expected to work normally again. 92.Both the above views of Professor Leung were then incorporated into a complete and full report dated 22 June 2006. 93.Professor Leung was asked to examine the plaintiff again and which he did on 5 July 2007. The reason for this further examination was because the plaintiff became wheelchair bound in the early part of 2007. 94.In that report Professor Leung stated that the plaintiff’s problem started on 21 January 2007 when she bent down to wash her face and felt intense pain over her neck and numbness over her lower limbs. She was then taken to Accident and Emergency Department of TKOH and admitted. 95.While in hospital she was found to be also suffering from diabetes. 96.In his conclusion in that report Professor Leung stated that the physical state of the plaintiff further deteriorated after suffering a fall in July 2007 which has resulted in her being wheelchair bound. This deteriorated state was related to the fall. Professor Leung also concluded that the deterioration was very bizarre and her overall neurological state (at that time) resembled unusual complicated neurological diseases which are unrelated to either the injury (i.e. from the work accidents in 2000) or the cervical disc prolapse. Therefore the deteriorated physical state of the plaintiff cannot be related to the work accident in 2000. 97.In a further report dated 1 November 2007, Professor Leung clarified with the plaintiff’s then solicitor that he was told by the plaintiff when he examined her in July 2007 that she experienced sudden deterioration after suffering a fall earlier that month (i.e. July 2007) and she also told Professor Leung that she became wheelchair bound only later in July when she experienced frequent falls. 98.Professor Leung also clarified there was no mix up, either of records or patients, as regards what the plaintiff had told him. 99.Professor Leung further reiterated that he believed the neck pain and complicated neurological deteriorations which started in January 2007, intensifying in July 2007, were most likely unrelated to the work injury happened seven years ago. 100.The plaintiff was also examined by Dr Danny Tsoi, an expert on orthopaedic instructed by the defendant, on 19 June 2001. 101.In his report dated 21 June 2001, Dr Tsoi stated that the plaintiff sprained her right wrist on 30 January 2000 which was a minor injury and which had recovered satisfactorily with no permanent impairment expected. 102.As for the injury to the plaintiff’s neck and right shoulder which was sustained on 14 February 2000, her current symptoms of neck pain also pain and weakness to the right upper limb appeared to have been triggered off by the accident on 14 February 2000. However, those symptoms cannot be explained by the C3-4 disc herniation. 103.In his ultimate analysis, Dr Tsoi was unable to explain the plaintiff’s generalized and severe symptoms over the whole of the right upper limb by orthopaedic diagnosis. 104.Dr Tsoi recommended the plaintiff to be examined by a psychiatrist to see if psychotherapy is required since he believed that any physiotherapy or occupational therapy will be of limited benefit to her. 105.Dr Tsoi further stated that the C3-4 disc prolapse should not prevent the plaintiff resuming work but her efficiency will be reduced for heavy duty. He emphasized that what is preventing her from returning to work is her own perceived inability to do so. 106.Dr Tsoi gave another short report dated 7 May 2002 after reviewing the surveillance videotape taken of the plaintiff. In that report he commented that the possibility of exaggeration by the plaintiff of her condition is high, or else the videotape showed that the plaintiff had recovered rapidly. 107.In yet a further report dated 3 October 2002, Dr Tsoi stated that the residual disabling pain of the plaintiff was either a physical manifestation by her of psychosomatic pain or exaggeration. However, the video surveillance taken of the plaintiff pointed more in the direction of exaggeration by her. 108.In a further report dated 20 October 2006, where Dr Tsoi was asked to comment on the opinion expressed by Professor Leung, he stated that the Sympathetic hyperreflexia referred to by Professor Leung is today called Complex Regional Pain Syndrome (“CRPS”). He agreed with Professor Leung that the plaintiff did suffer a certain degree of CRPS which was secondary to the sprained right wrist but all objective signs had disappeared by June 2001 (when he examined her). He also agreed with Professor Leung that the plaintiff will not benefit by orthopaedic treatment. However, he disagreed with Professor Leung that the plaintiff’s employment prospect was poor. 109.Dr Tsoi examined the plaintiff again in August 2007 for a re-assessment and gave a further report dated 18 February 2008. 110.In that report Dr Tsoi stated that the plaintiff’s physical condition continued to deteriorate in the six years subsequent to his first examination of her in June 2001 and that the plaintiff told him that the rapid deterioration was triggered by a minor back sprain which happened on 21 January 2007 which caused her complete paralysis of both lower limbs and she became wheelchair bound since then. 111.Dr Tsoi was still unable to provide an orthopaedic diagnosis to explain the plaintiff’s alleged physical disability. 112.If Professor Leung’s reference to “sympathetic hyper-reflexia” refers to Complex Regional Pain Syndrome, then he could not detect any sign to substantiate that diagnosis. Moreover, he has not come across any case with CRPS which affected the whole body rather than only the affected limb. 113.In summary Dr Tsoi said that the plaintiff’s progressive deterioration of physical disability affecting her whole body could not be explained by the injury she received in the two accidents on 30 January and 14 February 2000. Her bizarre symptoms and apparent disability would unlikely be related to those two accidents where she injured her neck and right upper limb only. 114.As for the plaintiff’s paralysis after January 2007, Dr Tsoi stated that the hospital records mentioned generalized weakness of all four limbs but power 4/5 was retained. Therefore there was no genuine paralysis. 115.As for her present condition, Dr Tsoi said that there was no objective signs to explain the plaintiff’s condition orthopaedically and more likely she is suffering some form of psychiatric illness such as hysteria or conversion syndrome with physical manifestation of pain, but exaggeration and malingering could not be ruled out. 116.Dr Tsoi did not think any orthopaedic treatment could improve her physical condition but strongly recommended her to seek psychiatric treatment and to be assessed by a psychiatrist. 117.As for her working capacity, Dr Tsoi stated that looking only at the orthopaedic injury which the plaintiff received from the two accidents in 2000, she should be able to resume her pre-accident job as a cleaning worker. DECISION AND FINDING ON THE MEDICAL AND EXPERT EVIDENCE 118.The defendant has submitted that from all the medical evidence available, the orthopaedic injury to the plaintiff from the accidents on 30 January and 14 February 2000 were very minor injuries and from which the plaintiff can be seen by the surveillance evidence to have fully recovered. 119.Therefore anything over and above those minor injuries to the plaintiff, in particular all her complaints about the deterioration and her whole body being affected, which cannot be explained orthopaedically, can only be exaggeration and malingering by her. 120.It is on this basis that the defendant has put its case on quantum. 121.In coming to a decision and finding on this aspect of the case, I note that when stripped down to its roots, there is in fact very little difference between the two orthopaedic experts in the opinions expressed by them. 122.They are agreed that the plaintiff’s deterioration in her physical condition cannot be explained orthopaedically. 123.Both are agreed that her condition of being wheelchair bound after January 2007 did not result from the accidents in 2000. 124.They are also agreed that the plaintiff’s urological condition and her diabetes are not related to the two accidents either. 125.Both Professor Leung and Dr Tsoi refer to a possible psychiatric or psychological basis for the plaintiff’s deterioration in condition and both recommended psychiatric intervention and for her to be assessed by a psychiatrist to determine if her condition was psychiatrically induced. 126.It should also be noted that apart from both Professor Leung and Dr Tsoi who advised psychiatric intervention and assessment, the chiropractor, Dr Leung, who treated the plaintiff, in paragraph 8.4 of his report dated 18 June 2004, also advised the plaintiff to seek psychological intervention on her (then) current condition. 127.Be that as it may, no expert psychiatric evidence has been put forward by either the plaintiff or the defendant except the three reports of Wong Ting, the clinical psychologist from QMH who treated the plaintiff. There were three reports of Wong Ting dated 8 March 2004, 27 October 2004 and 16 October 2006, all of which were agreed into evidence by both parties. 128.Not only was there nothing in those three reports from Wong Ting which suggested that the plaintiff’s stress and her problems were not genuine from a psychological point of view, but rather the plaintiff’s pain and deterioration, even if they arose psychologically, were shown by the reports of Wong Ting to have been caused or to have arisen from the mild injury suffered by her in the two accidents in January and February 2000. 129.Therefore given this evidence from Wong Ting, and the lack of any expert psychiatric evidence to the effect that the plaintiff’s pain and deterioration could not have been psychologically or psychiatrically induced, I am not disposed to find malingering on the part of the plaintiff as suggested by the defendant. 130.I do however find that there was some exaggeration on the part of the plaintiff, in particular in trying to ascribe her wheelchair bound condition to being a consequence of the two accidents. 131.I also find that the plaintiff’s urological condition, her diabetes and her being wheelchair bound since January 2007 to be unrelated to the two accidents in question. PAIN SUFFERING AND LOSS OF AMENITIES 132.On the basis of the findings above, and giving effect not only to the minor orthopaedic injuries to the plaintiff’s right wrist in the first accident as well as the injuries to her neck and right shoulder in the second accident, but also to the psychological problem which followed, I will assess damages under this head to range between $250,000 and $300,000. 133.Considering that the her psychological problem was being treated by a clinical psychologist in the QMH from 2004 to 2006, I will assess the award to be $275,000. SPECIAL DAMAGES A. Medical expenses 134.In so far as medical expenses are concerned, the plaintiff claims 13 items listed as items (a) to (m) in her Revised Statement of Damages totaling $118,790. 135.The defendant is only prepared to accede to $71,174, disputing items (d), (e), (g), (i), (l) and (m). 136.Of these disputed items, I agree that the plaintiff has failed to prove items (g), (i) and (l) being fees paid to TKO Family Medical Centre, fees to Dr Peter Lung Ting Kwan and fees for Chinese medical consultation and herbal treatment in that there are no report from them and no evidence to suggest that the treatment in those disputed items were in connection with the injuries sustained in the two accidents. These three items will therefore not be allowed. 137.I do not accept the defendant’s challenge as to the other items. 138.The MRI charges in item (d) was incurred as part of the treatment for the plaintiff’s injuries and are medical expenses. 139.For item (e), the medical fees incurred at the Medical Clinic of HKUST must also come within medical expenses. The objection by the defendant that the fees were in excess of her entitlement is an internal matter of the HKUST but does not detract from it being medical expenses incurred. No objection has been taken as to it not being reasonable. 140.As for item (m), the charges for the chiropractic treatment from Dr Leung, looking at the report from Dr Leung, the defendant’s objection that the treatment was for a condition not caused by the accident cannot be sustained. 141.Accordingly, the claim for medical expenses will only be reduced by the amounts of items (g), (i) and (l). 142.I therefore assess medical expenses to be $108,420. B. Travelling expenses 143.Travelling expenses are claimed by the plaintiff in the total amount of $7,176.20. 144.For the same reason as given above, those items of travelling relating to Dr Lung (i.e. items (a) and (g) in the Revised Statement of Damages) and that relating to the TKO Family Medical Centre (item (i)) will be disallowed. 145.The rest of the items appear to be reasonably incurred and will be allowed in the total amount of $6,864.80. C. Nourishing food 146.This is claimed at $33,776.00 by the plaintiff particularised as Chinese medicine supplements. 147.There is no hard and fast rule to allowing claims for nourishing food, but usually a reasonable amount will be allowed. 148.In the present case, the orthopaedic injuries to the plaintiff is quite minor. The major part of her impairment was psychiatric or psychological. 149.Given those circumstances, the claimed amount is far from reasonable. 150.The defendant is prepared to accede to $3,500 under this head of claim. However, considering that her psychiatric/psychological condition has taken a number of years, I will be prepared to allow $5,000 under this head of claim. D. Loss of plaintiff’s services 151.The plaintiff claims $261,500.00 in her Revised Statement of Damages on the basis that as a result of the accidents, the plaintiff could not render housekeeping and other services previously provided by her to her family. 152.That claim is undoubtedly unreasonable and there are authorities to the effect that for pre-trial special losses, the plaintiff is only entitled to claim what she has paid out of pocket, unlike a claim for future expenses. 153.However, here the defendant is prepared to accept an amount of $5,000 under this head of claim, and on that basis, $5,000 will be awarded. E. Care and assistance 154.The plaintiff claims $218,198.60 under this head of claim. 155.There is however no evidence to show that the plaintiff was herself out of pocket for any of the items under this head of claim. 156.In the absence of any evidence showing that she had in fact incurred such expenses, the claim is not proved. 157.Accordingly, there will be no award under this head of claim. F. Miscellaneous 158.The claim by the plaintiff under this head is for analgesics, treatments, therapeutic aids, medications and bio spa and hot chamber therapy totalling $6,958.20. 159.However no receipts have been produced and no evidence adduced as to such amounts being incurred. 160.In the absence of any evidence, no award will be made under this head of claim. G. Pre-trial loss of earnings 161.The plaintiff claims $875,050.00 under this head on the basis of full loss of earnings of $10,175 for 86 months of the pre-trial period (from accidents up to the notional date of trial taken to be March 2007 and presumably continuing thereafter). 162.The defendant is prepared to accede to $305,250.00 on the basis of full loss of earnings from the accidents until her sick leave period expired, namely, from 30 January 2000 to 12 July 2002. 163.There is no dispute between the parties that the pre-accident monthly earnings of the plaintiff was $10,175. 164.The dispute really goes to the length of the pre-trial period for which she should compensated. 165.From the reports of Wong Ting, the clinical psychologist in QMH, it is quite apparent that the plaintiff was given psychological treatment for her stress and her depressed mood as well as her feeling of helplessness and irritability between 27 November 2002 until 8 December 2004. Thereafter the treatment was terminated by agreement. 166.Subsequently, the plaintiff was again referred to the Department of Anaesthesiology in May 2006 and was seen by them on 12 July 2006. On this occasion her complaint was frustration and anger during the litigation process as she perceived her attorney being unhelpful to her. 167.Given this evidence, I am of the view that the plaintiff should be compensated for her loss of earnings for the pre-trial period up to 8 December 2004 and not only upon the expiry of the sick leave period as suggested by the defendant. 168.The sick leave was given to the plaintiff on her orthopaedic injuries but failed to take account of her psychological treatment which started only in November 2002, after the sick leave period had expired. 169.The only other medical or expert evidence concerning the plaintiff’s inability to return to work is the expert evidence of Professor Leung who first examined the plaintiff in December 2005. In his first report Professor Leung stated that her employment prospect was extremely poor. That must have been based on the physical symptoms of the plaintiff when he examined her. However, like Dr Tsoi, Professor Leung could not explain those symptoms orthopaedically. He attempted to explain it as hyper-reflexia and at the same time advised psychiatric assessment for its determination. But that was not done by the plaintiff. 170.In the absence of any psychiatric expert evidence (other than the reports of Wong Ting referred above), there is therefore no medical evidence before me to show that she could not resume work (at least for the period after December 2004) due to her psychiatric or psychological condition resulting from the two accidents. 171.As for her referral back to the Department of Anaesthesiology in May 2006 and being seen on 12 July 2006, I do not attribute that to being caused by the accidents, but due to her displeasure with her legal advisers. 172.I therefore assess her pre-trial loss of earnings to be $10,175 x 58 months which gives $590,150. A further 5% will be added to take account of the loss of MPF which will give $619,657.50. 173.Total special damages comes therefore to $744,942.30. FUTURE LOSS OF EARNINGS 174.As for future loss of earnings, there will be no award made for the same reason given above whereby pre-trial loss of earnings was restricted to 58 months of the pre-trial period. LOSS OF EARNINGS CAPACITY 175.The defendant is prepared to accede to $61,050 under this head of claim and that will be awarded. 176.I am not prepared to go beyond what the defendant concede under this head for the same reasons given above in relation to loss of future earnings. INTEREST 177.Interest will be awarded on the award for PSLA at 2% pa from the date of the Writ until judgment. 178.Interest on all special damages including pre-trial loss of earnings will be awarded at half judgment rate from the date of the second accident (it being the more serious of the two) until judgment. SUMMARY
180.From the amount above will need to be deducted the amount of $288,973 being the periodical payment already received by the plaintiff. This will give a final figure of $1,100,502.30. CONCLUSION 181.There will be judgment to the plaintiff in the sum of $1,100,502.30. COSTS 182.There will be a costs order nisi that the defendant pays the plaintiff her costs of the consolidated actions to be taxed if not agreed.
The Plaintiff in person, present Miss Christina Lee, instructed by Messrs JSM, for the Defendant |
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