Fong Yuet Ha v. Success Employment Services Ltd

HCPI 345/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 345 OF 2009

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Before : Deputy High Court Judge Lisa Wong, SC in Court

Dates of Hearing : 18-20 April 2011

Date of Handing Down Judgment : 18 April 2012

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J U D G M E N T

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1.In this action, the Plaintiff, Madam Fong Yuet Ha (“Madam Fong”), claims against the Defendant and her former employer, Success Employment Services Ltd (“Success”), damages for personal injuries sustained, and other consequential loss and damage suffered, by her as a result of an accident (“Accident”) that occurred on 10 October 2006 in the course of her employment with Success.

Success' business

2.Success carried on business as an employment agency specializing in the introduction of domestic helpers (both local and overseas) and chauffeurs to local families.

3.Success had a branch office at Flat A, 4^th Floor, Hennessy Apartments, 48 Percival Street, Causeway Bay, Hong Kong (“Branch”), which began operation on 1 February 2006.  Apart from being used as an office, the Branch also served as a dormitory for some of Success' overseas domestic helpers who were on leave, who had just finished their contracts or who had just arrived in Hong Kong and were awaiting employment.

Madam Fong's employment with Success

4.Madam Fong, born on 28 May 1962[1], was employed by Success as the manageress of, and worked at, the Branch from 1 February 2006[2], after having assisted in its establishment in January 2006.  She was the only staff member of Success working at the Branch. 

5.As from 1 May 2006[3], Madam Fong was paid a monthly salary of $12,000 and a monthly attendance bonus of $300[4].  In addition, she received commissions of $200 for every successful introduction of an overseas helper after 6 such cases and $100 for every successful referral of a local helper.  The right to commissions was spelt out next to the reference to basic salary in Madam Fong's Employment Contract (although the relevant appendix pursuant to which such commissions were to be calculated was omitted from the Trial Bundles).  Her claimed average monthly income from 1 May 2006 was about $12,359.89.  To that an amount of $1,000 per month should be added to take account of the pro rata monthly share of a year-end bonus which was equivalent to 1 month's basic salary.  Lastly, she was as a matter of law entitled to contribution by Success to her mandatory provident fund (“MPF”) of 5% of her earnings, i.e. $667.99.  Madam Fong's total monthly income at the time of the Accident was therefore $14,207.88 ($12,539.89 + $1,000 + $667.99).

The kitchen at the Branch

6.The Branch was fitted with a kitchen (“Kitchen”), which was already in place when Success moved into the premises. From the photographs adduced by the parties, the Kitchen appeared to be fitted out in much the same way as a kitchen that one finds in small residential flats in Hong Kong.  The layout of the Kitchen was shown from 2 different views in the 2 diagrams attached to Madam Fong's Witness Statement dated 18 August 2009, which diagrams are reproduced at the end of this Judgment.  For ease of reference, the Cabinet (to be defined in the next paragraph) is shown hatched black on the diagrams.  In addition to the measurements already set out, it can also be seen that the Cabinet was not as deep as the marble counter top underneath it where the sink was but was recessed by about 4” to 6” from the edge of the counter top.  A tall bin for the collection of trash (“Bin”) was placed against the wall in front of the sink.

Evidence and findings on the Accident

7.According to Madam Fong, on 10 October 2006, at about 6:15 pm, she was taking out some canned food stored in the upper shelf (“Shelf”) of the hanging cabinet shown hatched black on the diagrams (“Cabinet”) in preparation of dinner for some maids who would return to the Branch after attending interviews by Success' clients.  The base of the Shelf was about 6'7”[5] above the floor.  It was filled with miscellaneous stuff.  The can(s) that Madam Fong wanted to retrieve were placed deep inside the Shelf to the right and at the top over layers of other articles.  As Madam Fong is about 5'3” tall, she had to stand tiptoe on one of the 8 plastic stools[6] (“Stools” or “Stool”) that Madam Fong herself had purchased to serve as dining chairs for the overseas helpers who stayed at the Branch when they ate there.  Madam Fong was wearing flat footwear.  The Stool is about 18” high with a square seat measuring 10.75” x 10.75”.  Madam Fong put the Stool next to the Bin.  When asked by the court why she did not remove the Bin first so that the Stool could be placed right in front of the Cabinet, Madam Fong said she was in a hurry as she had other things to do.  Even standing tiptoe on the Stool, Madam Fong said she had to lean forward and stretch her left hand upwards and forwards in order to reach and grip those can(s).  She held onto the right side of the Cabinet with her right hand.  The Stool suddenly became unstable when she just managed to touch a can.  Madam Fong lost her balance and fell over.  Her back and right arm bumped against the door of the Kitchen. She landed on her buttocks on the floor.  The Stool also toppled over.

8.Madam Fong immediately felt pain in her back, buttocks, left arm and right leg.  There were abrasions on her left[7] hand/arm, which was bleeding.  She tried to yell for help but nobody came to her assistance[8].  After resting on the floor for about 5 minutes, she got up by herself. She stopped the bleeding on her left hand/arm.  She informed Success that she had been injured at work through Yahoo messenger.  However, she did not go to see a doctor immediately as she did not consider her injuries to be serious and thought that she would be fine after some rest at home.  Madam Fong's pain intensified during the night and she started to seek medical treatment the following morning. 

9.There was no witness to, and Success did not admit, the Accident.

10.Success called 2 witnesses, Madam Lau Lai Sze Wendy (“Madam Wendy Lau”), a director of Success, and Madam Lau Lan Sze Nancy (“Madam Nancy Lau”).  Madam Nancy Lau is Madam Wendy Lau's sister.  She also works for Success.  She was at the time of the Accident the manageress of the branch in Central.  She was deployed to take over Madam Fong's position and duties at the Branch on a full time basis beginning from August 2007.  She is 5'2” tall.

11.On the occurrence of the Accident, although Success did not have a positive contrary case to advance, it adduced a series of photographs taken on 25 May 2009 and 15 April 2011, depicting Madam Nancy Lau standing on a stool, which was identical to the Stool and placed in the same position as the Stool was immediately before Madam Fong's fall, and trying to reach to the top inside the Shelf.  In the photographs taken in the first instance, Madam Nancy Lau was wearing flat shoes whereas she was in 1” heels (which would put her at the same height as Madam Fong in flat footwear) on the second occasion.  In all the photographs, Madam Nancy Lau appeared to be able to reach to the top inside the Shelf without having to raise her heels.

12.The first occasion when the said photographs were taken was a joint site inspection of the Kitchen by the parties and their solicitors, at which Madam Fong was also present.  In her cross-examination, Ms Julia Lau, Counsel for Success, brought out the facts that Madam Fong was invited at the site inspection, but declined, to climb onto the Stool to demonstrate why she had to stand tiptoe on the Stool at the time of the Accident and that subsequently, by Success' solicitors' letter dated 4 November 2009, Success again invited Madam Fong to give such a demonstration but to no avail.  Madam Fong's explanation in court was that she was scared to stand on the Stool again.

13.Further, Ms Lau cross-examined Madam Fong in detail on how the Accident happened, in particular, why the Stool suddenly became unsteady.  Madam Fong was criticised for expanding on the account that she had given in her witness statements and repeated in her oral evidence in chief. 

14.For instance, Madam Fong did not mention until cross-examination that she had first taken out the other items stored in front of the can(s) that she wanted to remove and placed them on the counter top below. 

15.She also said for the first time in her testimony under cross‑examination that she felt that the Stool slid backwards while she was standing on it but could not give any reasonable explanation for the movement when the 4 legs of the Stool were of equal height and the floor surface was dry and even.  Ms Lau dismissed Madam Fong's suggestion that the Stool was not sturdy enough to bear her weight as being incredible because Madam Fong had previously retrieved things from the Shelf in the same manner without any mishap.

16.Also, Madam Fong had apparently told Dr Benjamin Lai and Dr Law Wun Tong when she attended a joint assessment by these expert psychiatrists on 9 September 2010 that the telephone in the office rang while she was standing on the Stool and that she was listening to the ringing tone before losing balance.  Ms Lau pointed out to Madam Fong that this was a detail she had never repeated in her witness statements or evidence in court or even in the earlier information she provided to the Labour Department on 18 September 2007.  Madam Fong denied in court that she fell because she was rushing to get the telephone.

17.Success' point was that the exact cause for Madam Fong's loss of balance and fall off the Stool remained an unexplained mystery. 

18.I bear in mind all the points made by Ms Lau. However, the contemporaneous diagnoses of the physical injuries sustained by Madam Fong were well documented and could not be disputed.  None of the doctors whose reports were produced suggested that such injuries were at odds with a fall from a stool.  In fact, both orthopaedic expert witnesses, Dr Johnson C K Lam (engaged for Madam Fong) and Dr Lam Yan Kit (engaged for Success), considered Madam Fong's injuries to be consistent with a fall as described by her.  There was no basis for suggesting, and it was not suggested, that Madam Fong had somehow been injured in different circumstances but made up the Accident.  I find on the balance of probabilities that the Accident did occur and that it occurred in the manner set out in paragraph 7 above.

Madam Fong's case on liability

19.Madam Fong contended that the Accident was caused by Success' (1) breach of the implied terms of its contract of employment with, and/or its duties as the employer of, Madam Fong; (2) negligence; (3) breach of the statutory duties under ss 6(1), (2)(a), (c), (d)(i), (d)(ii) and (e) of the Occupational Safety and Health Ordinance (Cap 509) and/or (4) breach of the common duty of care under the Occupiers' Liability Ordinance (Cap 314).

20.Success' breach was put in a number of different ways by way of particulars of paragraph 6 of the Amended Statement of Claim.  However, on a closer look at such pleading and the way it was developed by Mr Wong Chi‑kwong, Counsel for Madam Fong, in opening and closing submissions, Madam Fong's case on liability boiled down to one single substantive complaint namely, Success' failure to make available to her for use at the Branch an A‑shaped step‑ladder, thereby leaving her with no choice but to use one of the Stools.

21.In this regard, when asked by the court whether she had any views on why the Accident occurred, Madam Fong identified the Stool as the cause.  More particularly, she said that the Stool was too light and was not sturdy enough for her to stand on.  She further told the court that she had stood on the Stool a number of times before and she had thought that it was not sufficiently sturdy to bear her weight.  If she had been provided with a ladder, she would have used it and the Accident would not have happened.

22.Madam Fong further claimed that she had on 2 previous occasions specifically requested Madam Wendy Lau to buy a ladder to keep at the Branch[9].

(i)  First, after the opening ceremony of the Branch on 1 February 2006, Madam Wendy Lau wanted to adjust a spotlight at the premises.  Madam Fong had to borrow a wooden ladder from the decorators working at a neighbouring unit for Madam Wendy Lau's use.  As Madam Fong could foresee future occasions when a ladder would be handy, she asked Madam Wendy Lau to buy one.  She claimed to have specifically mentioned that it would be inconvenient when she had to put/take things in/out of the hanging cabinets in the Kitchen.  Madam Wendy Lau allegedly refused because she did not want to clutter up the premises and instructed Madam Fong that she could use the Stools.

(ii)  Madam Fong repeated the request for a ladder 2 to 3 months later because, without a ladder, the helpers staying at the Branch found it difficult to clean the exhaust fan installed at the top of the window in the bathroom, as part of their training for housework.  Again, Madam Fong claimed that Madam Wendy Lau declined.

23.Madam Fong pleaded reliance on the doctrine of res ipsa loquitur.

Evidence and findings on liability

24.There is no place in this case for the often indiscriminately pleaded maxim res ipsa loquitur, which only applies in cases where the precise cause of the incident is unexplained or cannot be shown but it is more probable than it was the result of an act or omission of the defendant that amounted to a failure to take proper care of the plaintiff.  I am afraid I am unable to draw any inference from Madam Fong's account of how she got injured that she would not have fallen but for some negligence or other breach of duty on Success' part. 

25.As said by Recorder Edward Chan SC in Ng Kong v Golden Caterers Limited, HCPI 206/2004, unreported, 3 February 2005, at paragraphs 63 and 65:

“63. There is no presumption of law that an employer is negligent whenever his employee is injured in the course of his employment. There is not even such presumption of fact. …

…

65.     There is a myth in the mind of certain people that the Court is bound to find liability against the employer whenever there is a claim by an employee for personal injury arising in the course of his employment.  Such myth was probably built on the misguided belief that any deficiency in the case would be made up by judicial sympathy for the injured employee and that somehow the court should bend over backwards to find a reason for finding liability against the employer.  I do not think that the court should take this approach.”

26.Turning then to the evidence, the 3 ladies' written and oral testimony on liability covered many points over which the parties differed:

(i)  Whether, in addition to free lodging, Success itself would, as suggested by Madam Fong, also purchase food for the overseas helpers staying at the Branch or would simply leave it to them to purchase food for themselves and then reimburse them;

(ii)  whether it was part of Madam Fong's duties to buy food, or prepare meals, for the overseas helpers staying at the Branch;

(iii)  whether the hanging cabinets in the Kitchen were in use or much in use;

(iv)  whether food or other stuff were, or were supposed to be, stored in the hanging cabinets in the Kitchen;

(v)  whether Success could or should foresee that Madam Fong would have to fetch food or anything from the Shelf;

(vi)  whether Madam Fong had specifically requested Madam Wendy Lau to provide her with an A-shaped stepladder; and

(vii)  whether Madam Fong could or should herself have purchased a ladder, if one be needed, given that she was instructed by Madam Wendy Lau to, and she did, purchase all the necessary furniture and equipment for the Branch when she helped set it up.

27.I have considered and examined with care the evidence on each of these questions but have come to the view that, on proper analysis, the answers to such questions would actually be irrelevant to the incidence of liability. 

28.As I see it, the Kitchen was fitted with hanging cabinets.  There was no prohibition against their use.  I do not see how Success could credibly claim inability to foresee that these cabinets would be used for storage by the persons it deployed to work and/or stay at the Branch or that Madam Fong would sometimes have to access them, whether it was or was not her duty to arrange for meals for the overseas helpers staying at the Branch. 

29.In view of how Madam Fong framed her case as set out in paragraphs 20 to 23 above, in my opinion, the question determinative of liability in this case is whether, as it was, Madam Fong did or did not have at the Branch a safe or safer means of accessing the hanging cabinets in the Kitchen.

30.In approaching this question, I would like to start with what Recorder Edward Chan SC said in Ng Kong at paragraph 24:

“In approaching the question of whether there was any negligence or breach of the statutory duties here, it is important to bear in mind that the law does not require perfection. The employer is not an insurer of his employee's personal injury. There is hardly anything in the world which could not be better done with the benefit of hindsight. An employer who has exercised such care reasonably expected from a careful employer is not to be found liable to his employee for negligence simply because after the event someone is able to make some extravagant suggestions for how things could be better arranged to avoid this particular accident.”

31.In Ng Kong, the plaintiff was employed by the defendant as a chef responsible for preparing food mainly by steaming.  He sprained his back while trying to pull a plate of fish out of a steaming oven (which he had done numerous times). He had to raise his arms to above his forehead and tip his toes when he pulled out the plate and then lowered his heels to the floor after he had done so.  He then began to turn his body to his right intending to turn around 180^o to place the plate with the fish on it onto the table opposite the steam cabinet. However, after he had turned his body for about 90^o, he felt great pain over his back.  At that point, he had merely moved his body and was just about to move his legs to complete the turn.  The plaintiff sued the defendant for failure to provide him with a safe system of work.  In particular, he complained that the steam cabinet was too high and that he was not provided with a stool for him to stand on so that he had to tip toe when taking the dishes out from the top level of the steaming oven.  The learned Recorder dismissed the action, finding, inter alia, that the defendant did provide a stool which was normally placed underneath the table opposite the steam oven such that if the plaintiff would like to make use of it he could easily do so and that the plaintiff did not use the stool because he could manage without it and it was obviously handier to work without the stool.  It was further observed (at paragraph 39) that with the plaintiff's relevant experience, he must know even without specific instruction that he should use the stool if he found that he could not reach or comfortably reach a certain height required for his work.  It was a matter of common sense.  An employee could be trusted to have some common sense in discharge of his duty.

32.Second, I also bear in mind what Lord Oaksey said in Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 822H-823A:

“In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of work or operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. It is not easy to define these spheres, but where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system should be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foremen or workmen on the spot.”

33.Winter v Cardiff Rural District Council was applied in Cheung Suk Wai v Attorney General [1996] 4 HKC 288, in which the plaintiff, a workman with the Regional Services Department having duties to clean parks and playgrounds, sprained her back while lifting exceptionally heavy bags of refuse to put into the refuse containers at the refuse centre.  Leong J, following Winter, held at 296B-H that the operation of putting bags of refuse into refuse bins was a simple one.  It was an operation that the plaintiff had performed since she took up employment as a cleaning worker.  The plaintiff was free to decide on how to carry out the operation in a way most suitable to her physical ability, including the weight of the bags.

34.Winter was also followed in Tsang Yin Yuk v Nini Maternity Fashion Company Limited, HCPI 981/ 2004, unreported, 28 April 2006.  In that case, the plaintiff was employed by the defendant to run a retail garment shop.  It was the plaintiff's case that she had to use a small stool, some 18” high, to reach the stored items on the top shelf of a cupboard.  She complained that the defendant had failed to provide her with a ladder.  It was her case that on the day of the accident, she stood on the stool and lifted a big containing clothing so as to place it on the top shelf.  She gave different versions of the circumstances in which the injury was sustained but in the end, she settled on experiencing pain when she was applying force to push the bag into the shelf which was some 4' deep.  Deputy High Court Judge Wright found the plaintiff to be an unreliable witness.  Even had the learned Judge been able to determine how the injury occurred and had it been in one of the circumstances as variously described by the plaintiff, he would have held that the task of putting the bags containing clothing onto the upper shelf was not inherently hazardous but was simple; that the decision of how it should be done was one that had to be taken frequently.  Given the plaintiff's experience, the court would have adopted Winter and held that it was natural and reasonable that the decision be left to the employee on the spot, especially in light of the defence evidence that instruction had been given not to overfill the bags.  See paragraph 30.

35.Chan Wai Ming v Tai Lee Café & Cake Shop, DCPI 1039/2006, unreported, 7 May 2007, was decided in the same spirit.  The plaintiff had been working as a chef at the defendant's restaurant for about 3 years before the accident giving rise to his claim.  One of his duties was to transfer boiled soup from the pot on the stove to a plastic container every morning, using a metal ladle.  The pot measured 18” in height and 16” in diameter and weighed around 50 lbs.  On the morning in question, the metal ladle was broken while another one was being used by his co-worker.  The plaintiff attempted to transfer the boiled soup by directly pouring it from the pot to the plastic container.  The pot of boiled soup was placed on the top of a counter table.  He rested the bottom of the pot on an edge of 2 to 3 inches width and lifted one side of the pot up with his left hand to pour the soup into the plastic container underneath.  He used a cotton towel to insulate his left hand against the heat of the pot.  Suddenly, the pot slipped at its bottom.  In order to prevent the pot from falling onto the ground such that the soup would spill, he gripped the pot tight and as a result he sprained his left wrist.  Deputy District Judge S T Poon saw no merit in the plaintiff's contention that proper warning should have been given to him not to pour soup in that way because the plaintiff was a very experienced chef and it was commonsense that it was dangerous to try to tilt such a heavy pot of boiling soup to pour the soup into another container.  Transferring soup was a simple task that a chef of the plaintiff's experience should require no guidance.  The judge did not believe there was not a single carrier capable of transferring soup without danger.  There was, at least, one other ladle in the kitchen.  The defendant could not be said to be in breach of any duty in respect of the plaintiff's own choice to adopt an obviously dangerous method to transfer the boiled soup.  In doing so, the plaintiff was not acting upon the instructions of the defendant, nor was there any suggestion that the defendant was aware of the plaintiff adopting this method.  See paragraphs 20, 34 and 35.  The claim was dismissed.

36.In the instant case, given Madam Fong's evidence that she knew from previous use of the Stools for the same purpose that they were not sturdy, she was asked why she chose to stand on the Stool.  Madam Fong's answer was that she felt that she had no choice because Madam Wendy Lau had refused to buy her an A‑shaped stepladder.  That could not be right as it transpired in the course of Madam Fong's testimony under cross‑examination that, not surprisingly, the Stools were not the only chairs at the Branch. There were in fact at least 5 other four-legged chairs (“Guest Chairs”) which Madam Fong herself had purchased for the Branch for the use of clients and other visitors.  The Guest Chairs were made of metal and thus much heavier and sturdier than the Stools.  Madam Fong confirmed that they were movable.  When questioned why she did not use one of the Guest Chairs instead, Madam Fong just said that she would have to move it from where the Guest Chairs were kept in the office area through the glass door of the office and then a corridor before getting to the Kitchen.  The impression that I got was that the Stools were handier.  In my view, the slight “inconvenience” (if one may call it that) perceived by Madam Fong to be involved in moving one of the Guest Chairs to the Kitchen was no excuse for her to opt for what she herself suspected to be an unstable means of access and support.  Even if she had been provided with a ladder, that device would not have been placed in front of the Shelf at all times.  It would have been stored in some corner at the Branch.  Madam Fong would still have had to take it out from the place of storage, move it to the Kitchen and open it before she could step on the same.

37.Mr Wong contended in paragraph 39 of his Closing Submissions that Success had not specifically pleaded in the Defence that the Accident might have been prevented if Madam Fong had used one of the Guest Chairs.  With respect, I disagree.  Madam Fong had the burden of proving on a balance of probabilities that the Accident was caused by want of care on the part of Success.  She simply failed to do so.  In any event, I consider the particulars under paragraph 8(iv) of the Defence to be wide enough.

38.Another point that was taken by Mr Wong (in paragraph 32 of his Closing Submissions) was the lack of evidence of a system to remind Madam Fong “to stand on a safe equipment” to avoid falling.  I refer to Winter and the abovementioned cases applying it.  The retrieval of items stored in the Shelf was not, on any view, complicated, difficult or dangerous in respect of which any instructions would be required.  It is such an everyday act that one would often be performing it outside the work context, e.g. at home.  An adult employee, particularly, one of Madam Fong's maturity, experience, position and job responsibilities, could certainly be trusted to have sufficient common sense to decide how she could perform this task safely. Ma Hui Tung Kuk v Cheong Hing Ha Kee Construction Co Ltd [1992] 2 HKC 391, cited by Mr Wong, is clearly distinguishable.  In that case, the plaintiff was removing some of the bridge planks or kirk ka of a scaffolding which had become old and rotten at a construction site.  He did so by actually stepping on the kirk ka, some of which had ceased to be fit for use.  He was not provided with a platform to work upon.  He fell while working at the third floor level when the kirk ka which he was standing on broke.  Unlike the task being performed by Madam Fong at the time of her fall, the operation undertaken by the plaintiff in Ma Hui Tung Kuk was inherently and highly dangerous.        

39.In light of the discussion in paragraphs 36 to 38 above, I do not find it necessary to determine whether Madam Fong had specifically asked Madam Wendy Lau to provide her with a ladder at the Branch.

40.For the above reasons, I find Success not liable for the Accident.

41.For the sake of completeness and in case this matter goes further and I am wrong in my conclusion on liability, I shall also set out my findings on quantum.

The parties' positions on quantum

42.I begin by setting out the respective positions on quantum adopted by the parties in closing submissions:

43.The controversy that separated the parties on quantum related to the seriousness of Madam Fong's injuries from the Accident, including the necessity and reasonableness of the prolonged treatment and sick leave and the genuineness of her persistent complaints of residual pain and incapacities and inability to return to her pre‑accident post.

Physical injuries

44.A number of diagnoses had been given for Madam Fong's injuries by those who attended her at various times:

Hospital/Doctor	Diagnoses
Sunshine Medical Centre (Yuen Long)/Dr Yeung Man (general practitioner)	Left forearm contusion with abrasion and bruising; right heel pain with tenderness over the lateral aspect and right buttock contusion with tender swelling
Cosmo Physiotherapy Centre (Yuen Long)	Muscle tightness; spasm over upper and lower back regions and stiffness in cervical joints
Tuen Mun Hospital/ Department of Orthopaedic & Traumatology	Right side paralumbar region tenderness at L3/4 with working diagnosis of soft tissue injury
Yuen Foong Medical Diagnostic Centre Limited	Left lateral bulging disc at L4/L5 and left lateral bulging disc at L5/S1 impinging into the adjacent left nerve root and thecal sac and slight posterior facet joint thickening at L5/S1 (which were pre-existing conditions)
Dr Lau Sing Ki Kenric (orthopaedic surgeon)	Multiple contusions leading to residual back pain and stiffness

45.Madam Fong had sought, inter alia, the following treatment for her physical injuries and been given more or less continuous sick leave up to and including 13 February 2009 as follows:

Hospital/Doctor	Period of Treatment	Summary of Treatment (if known)	Sick leave granted
Sunshine Medical Centre/ Dr Yeung Man (general practitioner)	11.10.2006 – 15.11.2007 (29 consultations)	Topical NSAID; oral painkiller; and on and off NSAID injection	11.10.2006 – 12.11.2006; 17.11.2006 – 11.12.2006; 30.12.2006 – 8.1.2007; 30.5.2007 – 4.6.2007; 22.6.2007 – 26.6.2007; 5.7.2007 – 8.7.2007
Yuen Long Jockey Club Health Centre	9.11.2006; 13.11.2006; 26.6.2007		9.11.2006 – 14.11.2006; 27.6.2007 – 28.6.2007
Madam Yung Fung Shee Health Centre	15.11.2006		15.11.2006 – 17.11.2006
Cosmo Physiotherapy Centre	20.11.2006 – 16.12.2008 (165 sessions)	Inferential therapy, ultrasound, manual therapy, hot pack and exercises
Tuen Mun Hospital/ Department of Orthopaedics & Traumatology	5.1.2007; 6/2/2007; 6.3.2007; 10.4.2007; 15.5.2007	Consultations and referral to occupational therapy	5.1.2007 – 28.5.2007
Tuen Mun Hospital/ Department of Occupational Therapy	31.1.2007 – 15.5.2007 (18 sessions)	Work reconditioning and hardening programme
Dr Kwok Kin Wa	25.5.2007		25.5.2007 – 31.5.2007
Novo Medical Group/Dr Yong Kong Fan	1.6.2007 and 8.6.2007		1.6.2007 – 14.6.2007
Tuen Mun Hospital/ Department of Orthopaedics & Traumatology	7.7.2007 – 9.7.2007; 24.7.2007; 4.9.2007; 22.10.2007	Hospitalisation followed by referral to Department of Occupational Therapy	8.7.2007 – 9.7.2007; 24.7.2007 – 4.11.2007
Tuen Mun Hospital/ Department of Physiotherapy	8.8.2007 – 18.7.2008 (55 sessions)	Hot pack; mobilization and strengthening exercises; and conditioning training
Tuen Mun Hospital/ Department of Occupational Therapy	28.9.2007 – 22.10.2007 (4 sessions)	Work capacity evaluation
Dr Kenric Lau	5.11.2007 – 28.11.2008	NSAID and muscle relaxant analgesic	5.11.2007 – 13.2.2009

This list is not exhaustive as Madam Fong also produced receipts from various other medical practitioners, including some practising in Chinese medicine.  However, I do not believe anything significant would turn on those other consultations. 

46.On sick leave, by a Certificate of Review of Assessment dated 1 December 2008[11], the Employees' Compensation (Ordinary Assessment) Board certified the period(s) of absence from duty necessary as a result of the injuries from the Accident to be from 11 October 2006 to 17 November 2007 (which was the date of review) save for a few short and insignificant breaks. 

47.As at the date of the trial, Madam Fong still complained of back and buttock pain; back stiffness; back pain after prolonged walking, standing or sitting, while and/or after stretching, bending and squatting; soreness, weakness and proneness to tiredness in both legs and inability in lifting and carrying heavy object.

48.Madam Fong expressed the view that such residual pain and incapacities had prevented, and would continue to prevent, her from returning to a job of the same nature and intensity as her employment with Success.  She relied on the fact that she had to quit work with Success after the Accident, firstly on 31 December 2006 after returning to duty intermittently after the Accident and then again on 7 July 2007 after working half-day since 19 June 2007.  The only jobs that she had undertaken since the Accident were of a part-time nature, giving her a monthly income of around $5,000 only.

49.On 10 March 2009, Madam Fong was jointly examined by Dr Johnson Lam and Dr Y K Lam, whose joint report dated 31 March 2009 was adduced without having the makers called pursuant to an earlier direction by the court. 

50.The doctors agreed on the diagnosis of soft tissue injuries to multiple sites including left forearm, right heel, right buttock and back.  The soft tissue injuries to the left forearm and right heel had recovered. 

51.With regard to the back, on physical examination, there was tenderness over the lumbosacral junction and right iliac crest and there was mild guarding over right paraspinal muscle of the lower back.  There was however no muscle spasm over the lower back despite Madam Fong's complaint. 

52.As for the lower limb, discrepancies were noted on the straight leg raising (SLR) test in that Madam Fong could raise both legs to 70^o while sitting but could only achieve 40^o (with complaint of traction feeling) and 50^o respectively for the right side and the left side in supine position[12].  She tested positive in the Waddell's tests in relation to shoulder elevation and pelvic rotation[13]. 

53.A major difference between the orthopaedic experts was as to whether the Accident aggravated Madam Fong's degenerative changes with marginal osteophytes at L3/4, L4/5 and L5/S1 disc spaces (which were agreed to be pre-existing).

54.Dr Johnson Lam considered that the degenerative changes and disc bulges were rather asymptomatic before the Accident; that it was quite likely that the Accident had triggered the persistent symptoms in the back and that it was very likely that Madam Fong should have been able to continue to enjoy rather painless and satisfactory function of her back had it not been for the Accident.

55.Dr Y K Lam, however, thought otherwise.  The MRI scan showed disc bulging at L4/5 and L5/S1 levels on the left side.  However, Madam Fong all along complained of right-sided symptoms which were therefore unlikely to be an aggravation of the more severe pathology on the left side. 

56.Another matter over which there was disagreement concerned sick leave.  While Dr Johnson Lam endorsed the sick leave recommended by Madam Fong's various treating doctors (i.e. up to and including 13 February 2009), Dr Y K Lam considered the sick leave issued by the Department of Orthopaedic & Traumatology of the Tuen Mun Hospital up to 28 May 2007 to be appropriate in Madam Fong's case.

57.In any event, Dr Johnson Lam regarded the degree of pain, disability and impairment to be moderate and Madam Fong to be able to handle the duties of a sedentary job (with occasional breaks for rest or stretching) and to be independent in most activities of daily living.

58.The doctors shared the view that Madam Fong could return to her pre-accident job.

59.Dr Johnson Lam assessed both impairment of the whole person and loss of earning capacity at 5% whereas Dr Y K Lam gave 2%. 

60.Lastly, given that the back and buttock symptoms were much more severe and persistent than one would normally expect in such low energy soft tissue trauma and that no organic cause could be found to explain the clinical picture before him, Dr Y K Lam advised that symptom magnification or psychological cause had to be considered.

Psychiatric symptoms

61.This takes us to the psychiatric symptoms experienced by Madam Fong after the Accident: insomnia, palpitation, easy irritability and headache. By way of background and for the sake of completeness, prior to the Accident, Madam Fong had received psychological counseling from January 1999 to May 2000, November 2003 to October 2004 and November 2004 to September 2006, the need for which arose from relational problems with members of her family. 

62.After the Accident, Madam Fong began to consult Dr Chow Chun Kwan John for persistent back pain on 26 November 2007, upon referral by Dr Kenric Lau.  Psychiatric assessment revealed that Madam Fong had low mood, decreased self-esteem and hopeless feeling for which Dr Chow initially made the clinical diagnosis of depressive disorder and prescribed anti-depressant.  Then, on 3 December 2007, Madam Fong reported elated mood and Dr Chow diagnosed bipolar depressive disorder. Mood stabilizer was added to control the hypomanic symptoms.  Madam Fong also received psychotherapy from the Social Welfare Department up to early 2010.   

63.As at the date of the trial, Madam Fong still complained of insomnia.

64.On 9 September 2010, Madam Fong was jointly examined by Dr Benjamin Lai (engaged for Madam Fong) and Dr Law Wun Tong (engaged for Success), whose joint report dated 4 October 2010 was also adduced without having the makers called pursuant to earlier direction by the court. 

65.Dr Lai expressly disagreed with Dr Chow's diagnoses of depressive disorder and bipolar depressive disorder.

66.Both psychiatric experts expressed the view that Madam Fong had suffered from adjustment disorder with depressive mood.  An adjustment disorder is a psychiatric condition with emotional and/or behavioural symptoms in response to identifiable stressors.  In Madam Fong's case, the presence of previous history of psychiatric symptoms indicated pre-existing vulnerability and the Accident and the physical disabilities associated therewith were likely stressors so that the Accident could be considered the cause of the fresh outbreak of symptoms after the Accident.    

67.Further, Dr Lai made the point that a person with depressed mood or anxiety may have increased sensitivity to the sensation of pain caused by an underlying physical pathology.  In the case of Madam Fong, it was likely that her depressed mood had increased her sensitivity of pain and contributed to the degree of her pain when she was worse in depressed mood.  Dr Law, while agreeing that it was possible that the mood turmoil could intensify the feeling of pain, regarded the contribution to be insignificant as the mood turmoil was mild. 

68.On Madam Fong's current condition, both doctors thought that Madam Fong's residual psychiatric symptoms were mild and that no further treatment therefor was necessary.

69.Dr Lai estimated that the permanent impairment of the whole person caused by Madam Fong's psychiatric condition to be in the range of 2 to 4%.  Dr Law gave 1%.

Genuineness of Madam Fong's complaints

70.It was suggested to Madam Fong by Ms Lau that she was malingering or had exaggerated her symptoms.  In support, Ms Lau highlighted in her Closing Submissions the relatively mild primary injuries, the numerous consultations with many different medical practitioners, the absence of any organic cause for the alleged persistent pain and the repeated positive results in some of the Waddell's tests.

71.I did initially entertain some doubt about Madam Fong's account of her condition after the Accident.  However, on balance, there was insufficient evidence to justify an affirmative finding of malingering or symptom magnification.  Dr Y K Lam, while raising symptom magnification, also mentioned the possible alternative of contribution to the perception of pain by psychological causes.  Dr Law (retained on behalf of Success) did agree with Dr Lai that Madam Fong's depressed mood might have intensified her feeling of pain though he allowed only a mild contribution.     

PSLA

72.I believe $250,000 would have been an appropriate award.  In so finding, I accept Dr Y K Lam's reasoned opinion that the Accident was unlikely to have aggravated Madam Fong's pre-existing back degeneration. 

Loss of earnings

73.The figure which Ms Lau advocated for loss of earnings was premised upon sick leave expiring on 29 May 2007 as recommended by the Department of Orthopaedic & Traumatology of the Tuen Mun Hospital and endorsed by Dr Y K Lam.  This ignored the fact that the hospital subsequently extended Madam Fong's sick leave to 4 November 2007.

74.Moreover, other treating doctors, most notably, Dr Kenric Lau, an orthopaedic surgeon, had given Madam Fong further sick leave which lasted until 13 February 2009.  I have no basis for holding that Madam Fong had inappropriately obtained, or that her treating doctors had inappropriately granted her, sick leave.  In particular, the sick leave up to 17 November 2008 was endorsed by the Employees' Compensation (Ordinary Assessment) when it reviewed Madam Fong's case on 17 November 2008.   

75.In the premises, I would have compensated Madam Fong with an award of $435,861 (rounding off $14,207.88 per month x 30²¹/₃₁ months) for her loss of earnings up to and including 30 April 2009, allowing her more than 2 months after the expiry of sick leave to seek and secure new employment.

76.However, in view of the consensus between Dr Johnson Lam and Dr Y K Lam that Madam Fong should be fit to return to her pre-accident employment and the first hand description by Madam Nancy Lau, Madam Fong's successor, of what such employment entails (which I accept), I would have declined to make any award for loss of earnings after 30 April 2009.  In this connection, it appears to me that Madam Fong exaggerated the demands of her job with Success.  For instance, one of the tasks in respect of which she asserted difficulty was handling and gathering the files on the helpers for viewing by clients.  She gave the impression that these files were heavy and that she had to handle a large number of such files at one time.  However, they turned out to be just thin A4 plastic folders each containing a few sheets of information.      

Loss of earning capacity

77.Success conceded an award of $30,000 under this head in paragraph 14 of its Answer to Re-revised Statement of Damages filed on 28 December 2010. I see no reason for it to withdraw this concession and would have given this sum.

Special Damages

78.The only contested items were medical expenses and expenses on tonic food.

79.The medical expenses were supported by receipts.  What Ms Lau questioned was whether all the consultations and treatment were necessary and reasonable. In view of the finding in paragraph 71 above, I would have allowed the full amount claimed for medical expenses.

80.I do not consider $5,000 on tonic food to be excessive.

Conclusion on quantum

81.In summary, had Success been wholly liable for the Accident, damages would have added up to $495,495.48, which I break down as follows:

Order

82.I dismiss Madam Fong's claim.

83.I also make an order nisi that Madam Fong should pay Success' costs of this action, to be taxed if not agreed.  Madam Fong's own costs should be taxed in accordance with the Legal Aid Regulations.

Mr Wong Chi-kwong, instructed by W K To & Co, assigned by Legal Aid Department, for the Plaintiff

Ms Julia P G Lau, instructed by Li, Kwok & Law, for the Defendant

Please refer to CACV100/2012 for the relevant appeal(s) to the Court of Appeal.