LI YUK CHING v. SECRETARY FOR JUSTICE

1995 P.I. No. 724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. In August 1990 the Plaintiff, then a 35 year old lady, started working as a Cultural Services Assistant II in the Arts Museum. The Museum moved into new premises at Tsimshatsui in November 1991 and from that time she worked on a rota system on the coin exchange counter. It was whilst working in such capacity that she met with the accident on the 2nd August 1992 which has given rise to this action for damages for personal injuries.

2. Although there are some photographs which illustrate the general area in which she worked and some of the relevant physical features, and I have seen a video of the area and operating aspects, it is necessary to describe the material aspects of the physical layout.

3. The working counter which is situated behind a glass grille, is about 4 feet above floor level. The counter clerk sits on a chair behind it. Below the counter is a small door which opens onto the entrance hall area. The door fits flush with the tiled external wall which is above, below, and to either side of the counter area. It is also tiled on its exterior so that it is not apparent to the external observer that there is such a concealed flap door. The door is about 2 to 3 inches thick though that is essentially a guess since the defendants have not produced any evidence as to the exact dimensions or weight of this door. The only measurement upon which we can rely is that of the height of the door - 3 feet 3 inches. The door is higher by about 3 inches than the height of the opening which it covers. Although the photographs do not assist, it appears that the door is hinged and controlled by a type of hydraulic arm which regulates its opening and closing. It is common ground that once opened to its fullest extent after a short pause the hydraulic mechanism will operate to close the door unless it is held open. No evidence has been provided by the Defendants as to the force required to open the door flap, for how long it stays open, and the speed of its closure.

4. The purpose of this door is to enable the coin-counter clerks, at the end of the day, to exit from their working position with the accumulated coins. These coins are put or collected in boxes and placed on a trolley which is also depicted in the photographs. The height of the trolley-handle frame is such that it can be pushed through without fouling the underside of the counter. The technique to be adopted requires the assistant to move on her knees, or, but less likely, squat or waddle, pushing the trolley in front of her, exerting sufficient force on the trolley to cause the door-flap to open, and positioning it in such a way as either to move flush with the door thus keeping it open, or to allow the assistant to move to the left of the trolley and hold the door flap open, against the hydraulic pressure until both she and the trolley are clear of the opening and the door. A third possibility is that someone on the other side of the counter will hold the door flap open until she and the trolley have passed through.

5. As the Defendants' own manageress at the museum succinctly stated in her evidence - "I found such a system very silly." I also find such a system inherently unsafe. Not only is it not a safe means of access to and egress from the place of work, it discloses a startlingly obvious breach of duty of care towards the employees. I have found it astonishing in this case that the Defendants, represented by the Department of Justice, could have persisted in denying negligence in the face of common sense. Anyone, required to use this system is essentially physically unbalanced and moving in a cramped position which renders him or her vulnerable to accident and injury. The trolley has to be pushed in such circumstances that it must be relied upon to provide some degree of support for the human frame, the upper body of which is horizontal with the head also horizontal face downwards and the arms held out in front to push the trolley, or gripping the sides or top of the trolley for support. The picture is clear enough to render wholly unnecessary a detailed examination of the many circumstances which pose a hazard for someone who has to perform this exercise. I will confine myself to what happened to this Plaintiff.

6. At the end of this working day she started to push the trolley with the boxes of coins on it through the gap. She found it in the past not an easy task. I am not surprised. Her recollection is that on this occasion Miss. Au, the manageress preceded her through the passage, and then appeared to hold the door flap open for her. As she herself proceeded through, Miss Au, she thought, let go of the door which then came to close on her.

7. Although she is correct that Miss. Au went through the opening ahead of her (but on her own, not with a trolley), I consider she was mistaken in thinking Miss. Au was holding the door open for her. I am sure in view of her physical position with her head down she would not have been able to see whether or not this was the case, but there may have been an assumption on her part to that effect. If there was, it was a reasonable one.

8. Miss. Au had gone out and then proceeded to the information counter. She did not know if the Plaintiff was following; sometimes the door was held open for the person following, sometimes not. I thought Miss. Au was a careful witness and would not have let the door go if the Plaintiff was directly behind her. Her own experience highlighted the totally unreasonable expectations of the staff by their employers.

9. Illustrative of this is the allegation in the Amended Defence that the Plaintiff should have used the full size door which is positioned to the left of the coin-counter desk. The Plaintiff responded that this door was permanently alarmed, an emergency exit and that she had been told specifically not to use it. As this trial opened the Defendants abandoned that allegation as belatedly as it had been made. In due course they changed the system I am told, and the use of that full sized door was instituted. This was a long overdue demonstration of commonsense.

10. The consequence of the door closing on the Plaintiff, an ever present risk, was that her left shoulder was struck and pinioned by or in the hydraulic bracket and her head was forced against and struck the counter. The exact mechanism which injured her is incapable of detailed exposition. However a closing door could easily have caused her to lose balance. She had very little room in which to manoeuvre and the very fact that the whole operation required slow movement because of the confined space and the cramped or contracted position of her body, made her particularly vulnerable to the inexorable closure of the door flap. This door may well have fouled the side of the trolley and forced that back upon the Plaintiff. I do not consider that there is any justification for the contention that there was some negligent act or acts on the part of this Plaintiff which contributed to her accident. I regret to have to say that the pleaded allegation lacks any sense of logic. The Plaintiff must succeed in full on liability.

Quantum

Pre-trial loss of earnings - overtime

1. Although paid her basic salary during sick-leave she was unable to work overtime. The period concerned is from 3rd August to the 5th October 1992, a period of two months, but she was also unable to work overtime in October.

2. After returning to work, though no longer working on the coin-counter, she was able to work some overtime when available, until she was transferred to the Chang Sha Wan Abattoir on or about the 25th October 1993. There are recorded overtime payments for the months of October and November 1993 but I have assumed these represent late payment for the last two months during which she was still working at the Tsimshatsui Museum.

11. The Defendants contend that she moved willingly to another department and was not persuaded to, therefore any consequent loss of overtime is her own fault. The evidence clearly counters this. She developed a psychological aversion to using the exit beneath the counter via the flap-door and in view of her experience this is no surprise. She was excused by her employers from so doing. Some time was to elapse before they abandoned this "silly system" altogether, and it was after the Plaintiff was transferred. A Mrs. Chiu had a conversation with her and said that if she was unhappy she could change her job, pointing out that coin-counter work, involving the flap-door exit system, was a rota job, and as she was excused doing it, the cycle came round more quickly. This conversation had some influence on her decision to change jobs but she made it clear that if Miss. Chiu had not said anything she would have been happy to stay at the Museum. I found the Plaintiff a good witness, reasonable and not given to exaggeration. I am satisfied that her decision to change departments within the Civil Service was brought about solely and directly by the consequences of her accident and injury and therefore she has lost the opportunity of overtime work which would clearly, on the evidence of Miss Tsui, have been available to her for, or average, about 40 to 50 hours per month. The value of this has just now been agreed by the parties following a post-trial examination of all the records to determine what she has lost. After deducting what she actually received under this head her net loss in respect of overtime is $190,344.64.

Post-trial Loss of overtime earnings

12. The comparable overtime earnings are $4,286.08 per month. She is now almost 42 years of age. The multiplier should certainly be 10. The figure is therefore $514,329.60.

3. Other pre-trial losses claimed are dependent upon my findings in respect of subsequent relapses and the emergence in particular of lumbar pain and the need for treatment for it. I will therefore deal with her injuries and the sequelae.

Pain & Suffering & Loss of Amenity

13. When she first attended hospital on the 3rd August 1992 she received treatment to her left shoulder and she was X-rayed. There was no specific mention of a neck injury but this is not unusual and the medical evidence does not dispute that she did indeed suffer such injury which manifested itself more clearly by December 1992 when there was persistent neck and shoulder pain with numbness and paraesthesia of the left index and middle fingers. She came under Dr. Chiang's care and physiotherapy was continued.

14. By March 1993 the paraesthesia to the left index finger had improved and continuation of physiotherapy was thought capable of producing further improvement to the neck. A year later the left index finger had paraesthesia localised to the tip. A Dr. Ling Chan Pong prepared reports on her in October and November 1994 which I have not seen but in March 1995 Dr. David Lee, who had available to him those reports recorded that she was experiencing constant pain over the back of the neck and left shoulder, and numbness and paraesthesia of the left index finger. There was marked loss of lordosis (inward curve of the spine) and she now had cervical kyphosis (outward curve of the spine) which was likely to give rise to cervical spondylosis, the degeneration of intervertebral discs in the cervical region.

15. The neck was showing the typical course of a flexion injury - extreme discomfort and pain, and restriction of movement with remissions and relapses requiring courses of physiotherapy and perhaps traction and manipulation from time to time. Dr. Lee found severe limitation on rotation in both directions. The involvement of the left hand with impairment of the nerve to the index finger was directly linked and again is an oft-observed area of sensory disturbance.

16. When she was seen by Dr. Chan Nik-Hang in July 1995 she was still complaining of on-and-off neck pain, of a dull aching in nature which was aggravated by turning to her left. There was still residual numbness of her left index finger which was colder, smaller and more clumsy than her right index finger. Although he found normal cervical lordosis on clinical examination with a full range of movement in her neck, X ray examination showed a loss of cervical lordosis at C5 as Dr. Lee had found a few months earlier. Nonetheless whatever variations there were in the findings of Dr. Lee and Dr. Chan, explained by the well known to be variable symptoms of such an injury, the latter agreed essentially with Dr. Lee. She had mild residual neck pain and a partial nerve palsy of her left index finger consequent upon the nerve injury to her neck which was now (3 years later) unlikely to recover.

17. In November 1996 an M.R.I. Scan was performed and disclosed a disc prolapse at C6-7 level. This explained her level of pain, and radiating pain to the left shoulder as well as numbness over her left upper limb. Dr. Tsoi regarded the mechanism of the August 1992 injury as giving rise to this prolapse. Dr. Chan thought the MRI findings, her symptoms and the mechanism of the injury were all compatible.

18. It is common ground from the medical evidence that sometimes she has mild neck pain and that on occasions it will get worse with remissions. That aggravation will require sessions of physiotherapy in order to restore her to some degree of equilibrium. In December 1997 Dr. Tsoi was indicating that she should rest for 10 to 15 minutes after working continuously for 2 to 3 hours with her head in a fixed position. Advisable though this undoubtedly is, the work patterns of most people do not allow such a regime of choice to be adopted. The nature of the permanent difficulty is clearly identified.

19. More problematic was the emergence in September 1996 of lumbar pain. There was no injury or organic finding to account for this. No one suggested that she was other than genuine in her complaint. She received manipulation under general anaesthetic and physiotherapy for both the neck condition which re-emerged and the lumbar pain. The question arising is whether the emergence of the lumbar pain is in any way attributable to the original neck injury and its sequelae (note underlining) given the absence of any organic findings.

20. It is well-known and attested to by medical evidence in many similar cases that with a spinal injury such as this Plaintiff suffered, pain and discomfort is often experienced in other parts of the spine. Sometimes it is the result of posture, whether sitting or standing, adopted in order to relieve pain or guard against pain. Other areas of the back, particularly the lumbar region, are subjected to strain, stress or simple tension, or a combination of all. Sometimes, it is what is described as referred pain (synalgia) through the sensory nervous system. On other occasions the general lack of well-being renders the individual more aware of pain in general and he or she genuinely feels that other areas are aching. It is not possible to be precise about which of these states afflicts this Plaintiff. It may be a combination of factors. What is clear is that she is not fabricating it.

21. Dr. Chan's dismissal of this pain in his letter of 27 May 1998 - "the back pain is totally unrelated to her injury since she only complained of it 4 years after her injury" - is, I regret to say, somewhat unconvincing. He had seen the Plaintiff only once and that for about half-an-hour about 3 years earlier. In his report of that examination he made no mention of any examination of her lumbar region or of any area other than the cervical region. When he produced his notes the day following his initial evidence, they were in pristine condition having survived unscathed as a loose sheet amongst various papers and files and had not been in the case file at any stage. Surprisingly there appeared to be notes relating to an examination of her back and tests conducted. Yet in his letter of 27 May 1998 there is no reference to any such notes or tests conducted in July 1995 which I find quite surprising. I was left in no little doubt concerning his evidence on this aspect.

22. Dr. Arthur Chiang from whom no report had been obtained but who had treated the Plaintiff from December 1992 until 1997 gave evidence of her progress and the course of her treatment. It is clear from his evidence also that she had periods of relative remission from the symptoms in the neck and left hand. He prescribed anti-inflammatory drugs and she commenced physiotherapy at his wife's clinic in or about September 1996 when she was complaining of back pain extending from T12 level to L3. He continued to correlate the neck condition with the back discomfort although he considered other pathologies including spondylitis. I am satisfied that her lumbar pain, late though it was in appearance, was directly linked with her chronic neck problem, whether it was organic in origin, or non-organic or psychosomatic.

23. One other matter needs to be disposed of and that is the fact that she was referred to the Physiotherapy Department of the David French Rehabilitation Centre in March 1992, about five months before the accident at work, for treatment of an injury to her right shoulder. It did not appear to involve her neck. She had 24 sessions of treatment over two months before she was discharged. This has not influenced the assessments of her post August 1992 injury and sequelae. In my view it does not affect the position in any way.

24. I accept the evidence that the Plaintiff does not need permanent physiotherapy but will need sessions when her condition is aggravated by the nature of her work, her posture or some physical disturbance of her neck condition.

25. Dr. Chan's views varied between a course lasting between 4-6 weeks (27th May 1998) and, 3-4 weeks every 2-3 years (3 February 1998). Mr. Steven Wong regarded her work, which involved computer scanning, as likely to have an effect upon her posture leading to exacerbation of shoulder and neck problems. His view was that after the first 2 to 3 years following the injury, the frequency of a relapse declines, but that for the foreseeable future she would probably need 10 to 20 sessions per year. In terms of sessions that roughly accords with Dr. Chan's view (though his frequency was less) but Dr. Chan of course lacks the advantage of knowing the Plaintiff's present condition or even the nature of her occupation. I was impressed by Mr. Wong's approach and experience as I was by that of Miss. Elizabeth Wong to whom the Plaintiff went initially for physiotherapy. I think she will need physiotherapy in the future to the extent indicated by Mr. Wong.

26. There is no doubt that experience has demonstrated this to be a debilitating type of injury. So many of the day-to-day tasks in the house, carried out by women, involve movement of the neck, shoulders and upper body. Reaching for objects and carrying such simple loads as shopping put a strain on the shoulders and neck. I have seen her give evidence over parts of several days. She has had to resort to the use of a neck collar on occasions when fatigue and tension have increased her discomfort. Her occasional grey pallor has demonstrated the degree of discomfort she has experienced. She is only 42 years of age with a number of working years ahead of her. She has to take particular care to avoid sudden movements and a car journey will always have a risk of significant exacerbation for her.

27. General damages will be $300,000.

Loss of full and half pay - 26 February to 28 November 1997

28. I accept that her absences for treatment and otherwise have been directly attributable to her injury in August 1992. Therefore where, she has lost half pay and full pay, and earlier increment, these are valid items of claim. They total, as set out in the schedule of Damages $75,760.00.

Medical Expenses

29. These relate to both the neck injury and pain and to the back problem. They are interconnected and therefore valid items of claim and I allow them. They total $39,385.00.

Physiotherapy fees

30. Some of these are documented, others are supported by the Plaintiff's evidence or witness statement. I accept that evidence and allow these items up to the dates set out. They total $79,200.00.

Swimming Admission fees

31. Although I accept Mr. Stephen Wong's evidence and the value of swimming, I also consider that such exercise is of general beneficial value and should be encouraged in any event. Therefore I do not consider that it can fairly be charged as a necessary item solely attributable to the original injury or its sequelae.

The costs of the electrical compressor and tonic food are agreed. They total $1,647.00.

Consultation fees of Chinese Herbalist

32. These are reasonably incurred. I allow them at $4,515.00.

Cost of Chinese Herbal Tea

33. Although initially I had some reservations, particularly concerning the cost I have decided to allow it as claimed at $8,725.00.

FUTURE EXPENSES

Physiotherapy

34. I consider it reasonable to allow for 15 sessions per annum in line with Mr. Stephen Wong's evidence and my judgment in this regard. This will be $450 X 15 = $6,750.00 per year. A multiplier of 10 is appropriate making this aspect $67,500.00.

Chinese Herbalist

35. I no longer consider it culturally or therapeutically necessary for her to continue such consultations. There will therefore be no future allowance.

Travelling expenses (Future)

36. These are now confined to the physiotherapy at the ASA Physiotherapy Clinic. The current round trip is $7 X 15 = $105 X 10 = $1,050.00.

Travelling expenses (Past)

37. All these are allowable in the light of my findings. The total is $17,494.90.

Summary

Pain and suffering	$300,000.00
Loss of overtime	$704,674.00
Loss of full and half pay	$75,760.00
Medical expenses	$39,385.00
Physiotherapy (past)	$79,200.00
Compressor/tonic food	$1,647.00
Chinese Herbalist	$4,515.00
Chinese Herbal tea	$8,725.00
Physiotherapy (future)	$67,500.00
Travelling expenses (future)	$1,050.00
Travelling expenses (past)	$17,495.00
	$1,299,951.00
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There will therefore be judgment for the Plaintiff for $1,299,951.00 with costs to be taxed if not agreed. Interest will need to be calculated at the appropriate rates on the relevant figures.

(Conrad Seagroatt)

Judge of the High Court