TSOI WING TAK MICHELLE v. LAU SZE NI

CACV 226/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 226 OF 2007

(ON APPEAL FROM HCPI nO. 926 OF 2005)

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Reasons for judgment

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Hon Yeung JA (giving the Judgment of the Court):

1.  On 21 February 2008, we dismissed the appeal with costs. We indicated that we would hand down our reasons in writing, and this we now do.

Introduction

2.  The appellant, born in 1974 and married with one infant child, was and is still employed by Civil Aviation Department (“CAD”) as an Air Traffic Flight Services Officer (“ATFSO”) on permanent and pensionable terms.

3.  On 17 October 2001, the appellant, a passenger on board a taxi, was injured in a motor vehicle accident, for which the respondent, Lau Sze Ni, had admitted liability.

The Appellant’s Employment

4.  At the time of the accident, the appellant was a Grade II ATFSO earning a monthly salary of $17,505. Despite the injuries she suffered in the accident, the appellant was promoted to become a Grade 1 ATFSO on 28 February 2002, and her salary increased to $30,100 per month.

5.  The appellant’s post, both before and after the accident, is an “operational post” normally requiring her to work shifts with staggering starting times, ranging from 7:45 a.m. (the earliest) to 4 p.m. (the latest).

6.  Each shift lasts 8 hours, except the night shift, which lasts from 9:30 p.m. to 7:45 a.m. the following day. As CAD provides round-the-clock services to maintain flight operations at the Hong Kong International Airport, most, if not all Grade I ATFSO fill operational posts and are assigned starting times on a rotating roster. They are normally also expected to perform one night shift in a 10-day cycle.

7.  The core duties of an ATFSO, consisting of (1) fight data and aeronautical information processing using a computer; (2) airfield surveillance from the Control Tower; and (3) radio/telephone communications with ground vehicles and air traffic control units and the like, require extended period of concentration and attention to detail.

8.  When the appellant returned to work after the accident, she resumed her pre-accident job, but was exempted from night duties and shifts lasting more than 8 hours. Instead, the appellant was assigned light duties, working normal office hours.

9.  According to the appellant, the neck pain was reduced and manageable but would recur from time to time, requiring medication and manipulation by a chiropractor.

10.  The appellant resumed operational duties on 17 August 2002 and moved into operational quarters with her family. Operational quarters were much sought after and were only available to officers performing operational duties.

11.  According to the appellant, the length, the concentration required and the nature of operational duties brought back the pain and discomfort associated with her neck injury and she found it necessary to seek exemption from such duties.

12.  In May 2003, through her solicitors and based on a medical report by Dr Tsoi Chi Wah, Danny (“Dr Tsoi”) dated 14 December 2002 (“the 1^st Report”), the appellant sought non-shift duties. In the 1^st Report, Dr Tsoi described the appellant’s problems and injuries as follows:

“Present Problems:

1.        Neck pain, soreness and ache discomfort after working continuously for two or three hours. Occasionally has to take pain-killer.

2.        Neck pain becomes worse upon change of weather.

3.        Pain and sensation of something blocking movement on extension of neck.

…

4.        Neck pain when lifting up child for longer duration.

5.        Neck pain often disturbs sleep.”

13.  Dr Tsoi noted, upon physical examination, that the appellant had tender spots over C5 to C7 at midline, mild degree of paraspinal muscle tenderness on right side, vague tenderness over right scapular group of muscles and absence of muscle spasm, although there was no neurological changes or abnormalities of the cervical spine.

14.  Dr Tsoi was of the view that the appellant’s “whip lash” injury was rather severe as she was still suffering pain over one year after the accident. Dr Tsoi believed that the pain would last a few more years when appropriate analgesics and physiotherapy might be required. Dr Tsoi also considered that the appellant would encounter inconvenience and difficulty in performing long hours of computer work and that she might not be able to perform overtime duties although “change of job is not required as she is still capable of performing administrative, clerical and occasional outdoor duties.”

15.  In accordance with Civil Service Regulations, a medical board, convened on 8 January 2004 to assess the appellants’ fitness to perform the principal duties of her rank, concluded that the appellant had:

1.  suffered a neck injury in a traffic accident in October 2001;

2.  variable attacks of neck pain which were worse at the time of concentration;

3.  pain and restriction of neck extension; and

4.  problems in tilting her head to view information at the control centre.

16.  The medical board found that the appellant’s working ability had been affected because of (1) problems in viewing information at the control centre; and (2) problems in performing duties that requires concentration and duties for long hours. The medical board also concluded that: “no definite recovery is expected”, although the appellant “is still capable of performing the principal duties of her rank/post in her present state of health.”

17.  As a result of the medical board’s findings, the appellant was relieved of active operational duties and assigned to clerical and occasional flight simulator duties. Consequently, the appellant and her family had to vacate the operational quarters on 13 August 2005 and have since resided in rented accommodation.

The Appellant’s Case

18.  It was the appellant’s case that her injuries had prevented her from returning to operational duties, resulting in the loss of the operational quarters, and had jeopardised her promotion prospects.  

19.  Apart from the usual heads of damages, the appellant claimed damages for loss of operational quarters, and post trial loss of earning and consequential pension entitlements arising from the loss of promotion prospects.

20.  The appellant’s claim for loss of operational quarters was limited to a period of 25.5 months (from 13 August 2005 to 30 September 2007), as it was agreed that all ATFSO would cease to have the benefit of operational quarters as from 1^st October 2007.

The Assessment

21.  Assessment of damages went before Saw J in March 2007. The judge tookthe view that the appellant was fit to return to her previous duties in an operational post and therefore did not award her any future loss of earning, loss of pension or loss of operational quarters. The judge only made the following awards to the appellant:

22.  The appellant appeals against the awards, primarily on the basis that the judge was wrong to conclude that she was able to return to her previous employment including the performance of operational duties.

23.  The suggestion is that the appellant should be awarded damages for loss of operational quarters and post trial loss of earnings arising out of loss of promotion prospects and the associating pension benefits.

The Appellant’s Injuries

24.  The appellant suffered contusion injuries to the chest-wall caused by the seat belt. However, she had completely recovered and there was no residual disability, other than a “whip lash” injury to her neck. The appellant was granted sick leave from 18 October 2001 to 7 December 2001 and thereafter returned to work although she had to wear a neck brace for about six months.

25.  The “whip lash” injury caused pain in the appellant’s upper chest-wall, back and neck, resulting in stiffness and restriction in movement of her neck and discomfort in her daily activities.

26.  The appellant said she suffered from regular neck pain, which was more intense when weather changed, or when she was performing operational duties or when she was under stress. The appellant also said she required pain-killing medication otherwise she would be uncomfortable most of the time and would have difficulty sleeping, thus preventing her from performing operational duties for almost five years.

Medical evidence

27.  Apart from the findings of the medical board and the 1^st Report, Dr Tsoi also prepared another report dated 11 December 2004 on the joint requests of the parties (the 2^nd Report), which was presented to the judge by consent without the need of calling Dr Tsoi to give evidence.

28.  In the joint instructions, Dr Tsoi was informed of the background of the case and provided with all the relevant documents, including the medical board’s report. He was asked to advise on a number matters, including the following:

“We have been informed by CAD that the duties of (the appellant), as ATFSO I, include flight data and aeronautical information processing using computer terminals, airfield surveillance from the Control Tower, radio/telephone communications with ground vehicles and air traffic control units at neighbouring countries. The job necessitates working irregular hours and the longest shift under the roster system is as long as 10 hours 15 minutes.”

29.  In the 2^nd Report, Dr Tsoi described the appellant’s complaints as follows:

“1.      She notices her neck was in similar condition in the past 2 years. The neck pain fluctuates in intensity and becomes worse upon change of weather.

2.     The neck pain will disturb her sleep occasionally she has to take sleeping pills.

3.     There is easy fatigue of neck and she cannot perform continuous desktop work.

4.     The neck is still on extension.”

30.  Dr Tsoi commented that the appellant only suffered a milder form of whiplash injury without any major structural damage and that the nervous system remained intact. Dr Tsoi opined that even after a mild sprain injury, residual neck pain lasting for years was not uncommon. Dr Tsoi expected the appellant to have residual pain for at least a few more years and apart from analgesics and intermittent chiropractic manipulation, no further treatment was required.

31.  Dr Tsoi, before concluding that the appellant “can enjoy swimming, cycling and has no difficulty performing all activities of daily living”, made the following remarks about her conditions:

“(the appellant) is considered fit to resume per pre-injury job as an Air Traffic Flight Service Officer. However she is recommended not to work for more than 8 hours a day and shift duty should be discouraged (inadequate rest will cause aggravation of neck pain)”

The Judge’s Findings

32.  The judge pointed out that Dr Tsoi did not say in either of the two reports that the appellant was unfit for operational duties. The judge said in the 1^st Report when the appellant was still assigned to operational duties that she was fit to resume her previous duties. Dr Tsoi only cautioned against long hours of computer work and overtime. In the 2^nd Report when the appellant was not on operational duties, Dr Tsoi said she was fit to resume her pre-injury job with the caveat that working more than eight hours per day should be discouraged.

33.  The judge pointed out that Dr Tsoi was optimistic about the appellant’s recovery and that the appellant was medically fit to resume operational duties although she might suffer some residual pain, which would be managed by analgesics and physiotherapy.

34.  The judge took the view that Dr Tsoi’s 2^nd Report meant that the appellant could resume operational duties, but she had chosen not to do so. The judge opined that had the appellant acted upon the advice in the 2^nd Report, she would have been able to resume operational duties and retain her quarters.

35.  In reaching his conclusion, the judge referred to what he considered to be a deliberate attempt on the part of the appellant and/or her lawyer not to disclose the 2^nd Report to CAD despite repeated requests.

36.  Based on the 2^nd Report, the judge took the view that the appellant had exaggerated the level of her pain and discomfort and that she was simply not prepared to resume operational duties.

37.  The judge concluded that if the appellant had resumed operational duties, CAD would have followed Dr Tsoi’s recommendations and would not subject the appellant to night duty or shift duty to avoid causing aggravation of her neck pain.

38.  The judge further found that in any event, the appellant did not enjoy any real prospect of promotion because of her work ethic, and therefore whatever loss of promotion prospect was minimal and non-compensable.

Grounds of Appeal

39.  Mr John Wright, on behalf of the appellant, took us carefully through the 1^st and the 2^nd Reports. Mr Wright argued that on a proper reading of the 2^nd Report, Dr Tsoi did not in fact suggest that the appellant was fit to return to operational duties when such duty involved shift duty and working for more than 8 hours a shift.

40.  Mr Wright argued that even if Dr Tsoi did say that the appellant was fit to resume operational duties, the opinion was the result of not properly understanding the nature of such operational duties.

41.  Mr Wright referred to the 3^rd paragraph of the 2^nd Report, which the judge did not refer to, namely: “After the expiry of sick leave, (the appellant) had resumed her pre-injury job. However, she was exempted from night duties and could work only 8 hours a day. Her duties mainly involved in computer and clerical work. Handling of files was also required.”

42.  Mr Wright argued that when Dr Tsoi opined that the appellant could return to her pre-injury job, it was the job referred to in the 3^rd paragraph and not her previous job that required her to perform operational duties as Dr Tsoi was in fact not aware of the actual tasks involved in “operational duties”.

43.  Mr Wright emphasized the absence of any suggested exaggeration or malingering on the part of the appellant. He further emphasized the undisputed fact that the appellant had suffered a whiplash injury and that the neck pain persisted three years after the accident and was likely to continue.

44.  Mr Wright suggested that once the judge’s finding that the appellant was fit for operational duties was set aside, the appellant should be awarded damages in respect of the loss of operational quarters for 25.5 months as well as for the future loss of earning and pension benefit arising out of the loss of promotion prospects.

45.  In his written submissions, Mr Wright estimated the loss of operational quarters at about $480,000, loss of future earnings arising out of loss of promotion prospects at between $265,000 and $530,000, depending of whether the appellant would have an early promotion or a late promotion, and loss of pension benefits at about $261,000.

46.  Mr Wright further argued that the judge’s award for PSLA of $180,000 was too low and he suggested that a more realistic sum should be $260,000 in the light of persistent neck pain, sleep disturbances, which required relieving medication and occasional sleeping pills, and had led to a damaged marital relationship.

The Respondent’s Position

47.  We did not call upon Mr Mohan Bharwaney, counsel for the respondent, but in his written submissions, Mr Bharwaney emphasized that the judge’s decisions were based on findings of fact that he made and the Court of Appeal should be slow to interfere with those findings.

48.  Putting a different interpretation to the 2^nd Report, Mr Bharwaney sought to persuade us that the judge was right to accept Dr Tsoi’s opinion that the appellant was fit to return to her pre-accident job, including the performance of operational duties. He argued that if the appellant did not accept Dr Tsoi’s opinion, she should have adduced evidence from another expert to refute Dr Tsoi’s view.

49.  Mr Bharwaney emphasized that operational duties did not necessarily involve night duties or shift duties, which would result in inadequate rest to the appellant, thus aggravating her neck pain. Mr Bharwaney pointed out that CAD would be prepared to accommodate the appellant by not subjecting her to any night shift duties or shift duties that would aggravate her neck pain.

50.  Mr Bharwaney supported the judge’s conclusion that damages should be assessed on the basis that the appellant was fit to return to her pre-accident job, including the performance of operational duties.

51.  Pointing out the absence of an appeal against the award for PSLA in the Notice of Appeal, Mr Bharwaney suggested that there was no valid basis for the Court to increase the award, which in any event, had not been shown to be so outside the permissible range of awards that the Court of Appeal should intervene.

Discussion

52.  We find Mr Wright’s submission, that Dr Tsoi, in the preparation of the 2^nd Report, was not fully aware of the nature of the appellant’s job, including the performance of operational duties, slightly surprising.

53.  The main issue at trial was whether the appellant was fit to resume her pre-injury job, including the performance of operational duties and Dr Tsoi’s reports were presented to the judge by consent to assist him to resolve that main issue.

54.  In the 1^st Report, Dr Tsoi already stated the appellant’s pre-injury occupation as “Air Traffic Flight Service Officer in Aviation Department, long hours of computer work and night shift duties were required”.

55.  In the 2^nd Report, Dr Tsoi also stated that “(the appellant) was exempted from night duties and could work only 8 hours a day”. As night duties involving more than 8 hours’ work were only associated with operational duties, clearly Dr Tsoi was aware of the appellant’s job nature.

56.  Further and as emphasized by Mr Bharwaney in his written submissions, in the joint instructions to Dr Tsoi, he was given full details of the appellant’s duties as ATFSO I.

57.  In the circumstances, Mr Wright’s submission, which we rejected, that Dr Tsoi did not properly understand the appellant’s job nature, including the performance of operational duties, did not do justice to Dr Tsoi’s professionalism.

58.  No doubt, the appellant suffered rather serious whiplash injuries resulting in annoying pain and discomfort, and requiring analgesics and occasional physiotherapy. But that did not mean that she was unable to resume her operational duties.

59.  The judge was right to place emphasis on the joint instructions to Dr Tsoi in determining whether the appellant was fit for operational duties. The judge was also right to point out that the appellant did return to operational duties subsequent to being assigned operational quarters.

60.  The judge went through, in commendable detail, the background and the evidence of the case as well as arguments of the parties to resolve the issue of whether the appellant was fit to return to her previous job, including the performance of operational duties.

61.  The judge’s conclusion that the appellant, with CAD’s accommodating attitude to her state of health as demonstrated by the evidence of Miss Susanna Lui, would be able to return to operational duties was, in our view, unassailable. It was certainly not a conclusion that could be disturbed in accordance with the principle established in Tang Kwok Ming v Daxprofit Scaffolding Ltd CACV 5/1998.

62.  The judge was entitled to conclude as he did that, for whatever reason, it was the appellant’s decision to avoid operational duties, and that the loss of operational quarters and the alleged loss arising out of the loss of promotion prospects could have been avoided.

63.  We were satisfied that the foundation for the appellant’s claims for loss of operational quarters, loss of earning and loss of pension entitlements did not exist.

64.  The appellant sought $250,000 as damages for PSLA and obtained $180,000.00. Mr Wright, in his written submissions, though not pursued orally, suggested that the proper award should be $260,000.00 when no appeal had been made in the Notice of Appeal against the award of $180,000.00.

65.  We were certainly not persuaded that the award of $180,000.00 was so plainly wrong and so outside the permissible range of awards that we should intervene.

66.  In the circumstances, we dismissed the appellant’s appeal with costs.