YIP SZE LUNG v. FAIRWOOD FAST FOOD LTD

DCPI 3658/2021

[2024] HKDC 303

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3658 OF 2021

---------------------------

---------------------------

--------------------------------------------

JUDGMENT

--------------------------------------------

INTRODUCTION

1.  This is a personal injuries claim brought by the plaintiff against the defendant for an accident at work which allegedly occurred on 26 July 2019 (“the Accident”).

2.  Both issues of liability and quantum are in dispute.

BACKGROUND

3.  The defendant runs a chain of fast food restaurants in Hong Kong. There is no dispute that at the time of the Accident the plaintiff was employed by the defendant to work as a dishwasher in one of its restaurants situated at Yue Xin Plaza, San Po Kong, Kowloon (“the Restaurant”).

4.  The plaintiff’s version of the Accident as pleaded under the statement of claim filed on 10 February 2022 (“the SOC”) is as follows:-

“… at about 8:00 a.m. on the 26^th day of July 2019, the Plaintiff was assigned to wash a large soup pot approximately 3.5 feet tall and 3 feet wide (“the pot”). The passageway was in a cramp condition and there were at least 6 pots of different size on the floor. Whilst she was dragging the pot filled with water to a designated place to wash. Her left foot stepped on water and/or oil and/or slippery substances and slipped forward. In order to avoid falling backward, she managed to bend her upper part of body forward and sprained her waist. Eventually she lost balance, fell backward landing on the ground with her buttock. As a result of the Accident, she sustained back injury and experienced low back pain.”

5.  The defendant disputes the occurrence of the Accident and puts the plaintiff to strict proof on the issue of liability.

6.  On the issue of quantum, the plaintiff originally relied on the revised statement of damages filed on 1 August 2023 (“the RSOD”) where a net sum (after deduction of employees’ compensation payment) of over HK$1.58 million was claimed. However, by the time of trial, the claim was reduced to a net sum of around HK$830,000 only. This is due to the concession made by the plaintiff based on the “severe pre-existing degeneration condition on all levels of her lumbar spine, plus L5/S1 with narrowing of intervertebral disc space that (the plaintiff) had long history of low back pain, during which period she did not seek medical help, and that (the plaintiff) was likely symptomatic before the Accident.”[1] The plaintiff’s counsel has very fairly accepted a 60% discount on the pre-existing condition. This is despite the plaintiff’s own medical expert’s opinion that there should be a 40% discount only.

7.  The defendant disputes the plaintiff’s claims on almost all aspects of her claim on quantum. They include the extent of her injuries resulting from the Accident; length of sick leave; post-accident ability to work; post-accident employment records and earnings; and special damages. Most significant of all, the defendant disputes the percentage of discount on her pre-exiting condition. The defendant relies on its medical expert’s opinion that 95% of her present condition should be attributable to her pre-existing degeneration.

LIABILITY

The plaintiff’s different versions of the Accident

8.  In terms of how the Accident occurred, the plaintiff has more or less given the same version in her witness statement as that pleaded under the SOC. Only a few more details have been added. She stated that inside the pot were some small saucepans, spatulas, ladles and other utensils which were soaking in water to make washing easier. The weight of the pot was 60-70 lbs. and the pot was about 5 to 6 steps away from the place where she was to do the washing.

9.  In addition, the plaintiff stated in her witness statement that she was facing the pot with her right hand holding the handle of the pot and walking backwards intending to pull the pot to the place where she did the washing. While she was so pulling her left foot stepped on some water and oil stain and she lost balance. To prevent from falling backwards, she exerted force to bend her upper body forwards. Finally, she could not maintain her balance and fell backwards, leading to her back and waist being injured.

10.  It is important to note that the plaintiff has given at least several different versions of the Accident and/or how she sustained injuries to her back to different medical practitioners over time.

11.  For example, the joint medical experts appointed by the parties, namely, Dr Johnson Lam (“Dr Lam”) for the plaintiff and Dr Arthur Chiang (“Dr Chiang”) for the defendant, in their joint medical report dated 16 June 2023 (“JMR”) recorded the history of the Accident as follows:-

“… She said she was dragging a large metal pot (over 50% loaded with water) about 3.5 feet tall and 3 feet wide with her right hand behind her back. Her left foot slipped on slippery floor (said to be wet, oily, and with some rice on the floor); she fell backward; she tried to move her body forward to regain balance but was not successful; she fell backward, landing on her buttocks and low back. …

She said she felt severe pain and numbness over her low back radiating down to left buttock and left posterior thigh. She said she could not get up by herself; she remained on the floor for about 15-20 minutes; then she gradually got up by herself. … She attended a bonesetter for treatment on the same day; she also attended the company doctor for treatment.”

12.  The bonesetter that the plaintiff consulted on the day of the Accident was Mr Chan Sheung Fun (“Mr Chan”) who practised from Chan Hoi Kwai Care Centre (「陳海葵醫館」) (“CHK Care Centre”) near the Restaurant. For the consultation history, Mr Chan recorded that her treatment started from 26 July 2019 (ie the day of the Accident) to 1 August 2019 for a total of 6 sessions. As for her treatment history and clinical presentation, it was recorded by Mr Chan that she sustained “a sprained injury 20 days ago, resulting in bruises, swelling, local tenderness, limited mobility, and dysfunction over the lumbar spine and left hip bone”. (「患者於20日前 扭傷以致腰椎及左髖骨表面可見瘀痕及腫脹、 局部壓痛、活動受限、有功能障礙。」). [emphasis added]

13.  The plaintiff also consulted a “western” doctor on the day of the Accident. Dr Chung Ling Lee (“Dr Chung”) of Leading Healthcare Medical Centre (“LHMC”) reported that the plaintiff was seen on 26 July 2019 (ie the day of the Accident) with X-ray lumbosacral spine done on the same day. Significantly, Dr Chung recorded in her report that the plaintiff had been attending her clinic for “left leg pain and back pain from 22 July 2019 to 30 August 2019 for 11 times” [emphasis added]. Of course, 22 July 2019 was 4 days before the occurrence of the alleged Accident.

14.  It is also significant to note that during all those 11 occasions, the plaintiff never mentioned to Dr Chung that she had an accident at work. She had X-rays taken on the day of the Accident and yet there was not a single word of complaint that her pain had intensified or was brought on by the Accident. It was recorded by Dr Chung that she had “persistent severe left lower limb pain and back pain” [emphasis added] which had caused inability to perform her work duties but no assertion that such pain was brought on by the Accident.

15.  Another record is from Dr Wong Lok Yan Ian (“Dr Ian Wong”) whom the plaintiff first consulted on 5 September 2019, some 6 weeks after the Accident. Dr Wong recorded that although the plaintiff gave a history of injury while at work on 26 July 2019, when seen on 5 September 2019, she complained of low back pain for more than 1 month, “suspected to be preceded by sprain injury while pulling weights at work”. [emphasis added]

16.  There was no contemporaneous record of the plaintiff having sustained injury at work on the date of the Accident from the government hospitals. In the record from Kwong Wah Hospital (“KWH”) which mentioned an injury of work on 26 July 2019, it did not mention the date of the first consultation. From the bundle of medical records[2], it can be seen that the plaintiff’s first consultation at the Orthopaedics & Traumatology Department (“O&T”) of KWH was on 5 November 2019. That of course was over 3 months after the Accident.

17.  The Form 2 filed by the defendant after the Accident on 8 August 2019 merely described the Accident as “worker sprained her waist when pulling soup pot in the morning” (「員工早上拉湯煲扭傷腰部」). However, as it transpires from the evidence during the trial, those information was provided by the plaintiff to the manager of the Restaurant who would then report that to the Human Resources Department of the defendant as no one from the defendant witnessed the Accident. It is significant to note that there was no mention of any “slip and fall” in the Form 2.

The plaintiff’s oral evidence

18.  I do not find the plaintiff credible at all. I agree with the defendant’s counsel Ms Lee that the plaintiff did not come across as a truthful witness. She appeared to be making up answers as she went and her answers were usually long and rambling with little attention to the question asked. She just answered in the way that she thought fit despite being reminded to focus and answer properly. Further, I was able to observe that the plaintiff tended to blame others for her misfortunes and tried to attribute all her injuries to the alleged Accident on 26 July 2019 when the evidence is very clear that she has had very serious and persistent physical problems / injuries to her back prior to that date.

19.  I think what stands out most in this case is the dire lack of any contemporaneous records or documents to support the plaintiff’s allegations that the Accident happened as presently pleaded and claimed by her in court.

20.  She had at least 3 separate opportunities on the day of the Accident to tell others how she injured herself. First to her manager Ms Tam Oi Lai (“Ms Tam”) immediately after the Accident; then to the bonesetter Mr Chan whose clinic was nearby when she consulted him; and lastly to Dr Chung whom she also consulted on that day. Yet on all those 3 occasions, she did not give an account that remotely resembles her pleaded case.

21.  In the case of Mr Chan, the plaintiff agrees that she went to see Mr Chan on the day of the Accident and she had never consulted him previously. When the recorded sprain injury 20 days ago in Mr Chan’s report was read to her, she said she had never read the document and had never said that she had such a sprain. She insisted that before the Accident she had no physical injuries, pains or aches of any sort. However, she was not able to explain why Mr Chan would record this down if she had not told him herself.

22.  The plaintiff further confirmed that the slip and fall was the sole source of her ailments and that the slip and fall accident caused her enormous pain. When asked why she did not tell Mr Chan on the day of the Accident about her Accident and the injuries she insisted that she did tell him.

23.  I agree with Ms Lee that this is totally incredible as a professional would unlikely have recorded symptoms and ailments not recounted by the patient and not record symptoms and ailments complained of by the patient. There is no reason why Mr Chan who had never met the plaintiff before the day of Accident would do that.

24.  In the case of Dr Chung, whom the plaintiff also consulted on the day of the Accident, she ordered X-rays to be taken of the plaintiff’s lumbar and cervical spines. These clearly showed significant degeneration.

25.  When confronted with the fact that she had consulted Dr Chung on 22 July 2019 (which was 4 days before the Accident) for left leg pain and back pain (the same symptoms she alleged were caused by the Accident), she said she consulted Dr Chung for “dermatitis and fever” on that day. She said that the doctor told her she had fever and it was safer to have X-rays taken to see if it was caused by work. I agree with Ms Lee that it defies logic to suggest that a trained professional would order the whole spine to be examined by X-rays when there was no orthopaedic complaints from the patient. The plaintiff’s account on this is therefore totally unbelievable.

26.  At one point during cross-examination, the plaintiff said she did not tell Dr Chung about the Accident because she did not need to have sick leave from her. Later she changed her story and said that she did tell Dr Chung who gave her sick leave. That sick leave given is evident in Dr Chung’s report and is not disputed. This shows again that the plaintiff is not a credible witness.

27.  The plaintiff also failed to mention to Ms Tam that she had a slip and fall accident when pulling the soup pot for cleaning on the day of the Accident. Ms Tam who saw the plaintiff immediately after the Accident was never told by the plaintiff of how she sustained the injury. It is also incredible that nobody in fact witnessed the Accident in the busy kitchen of the Restaurant, when in particular the plaintiff claims in her evidence that she sat on the floor for 5 to 10 minutes after she fell.

28.  In addition to the above, Dr Ian Wong recorded in his report that the plaintiff gave a history of injury at work on 26 July 2019 “suspected to be preceded by sprain injury while pulling weights at work”. I noted that he first saw her on 5 September 2019, which was about 6 weeks after the Accident. In his record of consultation he wrote “?preceded by sprain injury while pulling weights at work”. I agree with Ms Lee that this would suggest that no slip and fall Accident was reported to Dr Wong. Further, it suggests that Dr Wong did not quite believe the history of her injury as the word “suspected” was used and a question mark was put next to his notes.

29.  Last but not the least, her position when pulling the soup pot described to the experts as recorded in the JMR had been rejected by the plaintiff in her own evidence. She insisted that she was pulling the pot with her right hand and walking backwards at an angle. When asked why she told the experts that her right hand was behind her, she put her left hand behind her back in the witness box and said the left hand was helping. When asked how a hand behind her back could help with pulling a pot in front of her she changed and said that her left hand is useless. She could not explain the discrepancy between the 2 versions of the Accident. Again, I find the plaintiff’s evidence on this not credible.

The defendant’s case on liability

30.  The defendant disputes the occurrence of the Accident and puts the plaintiff to strict proof. No one from the defendant witnessed the Accident. It is the defendant’s case that the plaintiff was scheduled to take sick leave on 26 July 2019 but she returned to work at 7:00 am that morning claiming that the doctor’s clinic did not open until 9:00 am so she reported for work first. Later at around 8:00 am the plaintiff reported that she allegedly had “sprained her waist” but without mentioning any slip and fall.

31.  Ms Tam who was the manager of the Restaurant at the time of the Accident gave evidence as DW1 at the trial. Ms Tam has no interest in the outcome of the proceedings. In my view, she has given her evidence in a straightforward and truthful manner.

32.  According to Ms Tam, the plaintiff called her the night before the Accident and informed her that she needed to take leave to consult a doctor the next day. The plaintiff told Ms Tam on the phone that she had already liaised with Wah Gor (「華哥」), the other dishwashing worker of the Restaurant, to ask him to go back to work at 7:00 am the next day in order to take over her duties. However, when Ms Tam arrived at work shortly after 7:00 am the next day, she saw the plaintiff was already there. She was having her breakfast at the time and was getting ready for work. Ms Tam enquired why the plaintiff was there as she thought the plaintiff was going to see a doctor that morning. The plaintiff told Ms Tam that the doctor’s clinic would only open at 9:00 am so she could work for a while first. Ms Tam reminded the plaintiff to clock out when she leaves to see the doctor. At that time, the plaintiff did not display any signs of discomfort. Around 8:00 am, a second chef (whose name Ms Tam cannot now recall but who has since resigned from the company) reported to her that the plaintiff had sprained her waist. However, nobody from the defendant witnessed the Accident. Significantly, the plaintiff did not mention to Ms Tam that she had slipped and fell during the Accident. Ms Tam immediately asked the plaintiff to consult a doctor and to call Wah Gor to return to the Restaurant to take over her duties.

33.  It is important to note that Ms Tam when shown the photos showing 2 large pots and a big wooden spoon / ladle produced by the plaintiff in the trial bundle confirmed that the defendant did not have such large pot in their kitchen. The largest pots they have are of the size of 45 x 42 cm only. They also do not have any big wooden ladle in their kitchen as shown in the photos. Thus, it is most likely that the plaintiff has tried to exaggerate the size of the pot by using photos taken from somewhere else.

34.  On the issue of whether the soup pot was 2/5 filled with water and dirty pots and kitchen utensils, Ms Tam’s answer in my view is convincing and plausible. She said that there was no water tap at the stove area and the cooks would not go get water to put in the pot. What was done was that the plaintiff would take the pot to the wash station (which was about 3 steps away) and then get hot water from the tap to soak the pots and utensils to facilitate her washing work.

35.  The above evidence given by Ms Tam seems to me to be perfectly reasonable and I would accept her evidence on this. It severely undermines the plaintiff’s account that she had to pull a large soup pot (of 3.5’ tall x 3’ wide) filled with water with dirty pots and pans inside at the time of the Accident.

36.  Ms Tam was criticized for having made no record of the plaintiff’s application to take leave on the day before the Accident. Her explanation is simple. The plaintiff called her at night after working hours and she was home. The next morning when she went to work the plaintiff was already in the Restaurant. She did make a change in the shift arrangement records and passed it to the defendant but does not know what became of it. I consider this as quite plausible and accept her evidence.

37.  Ms Tam also confirmed that the plaintiff was at work on the day of the Accident and by returning to work and punching her attendance card the plaintiff would get paid. If she only sat in the Restaurant without working then no pay would be given. This would explain why the plaintiff would rather work for a couple of hours to wait for the doctor’s clinic to open than remain idle.

38.  When the plaintiff was too busy, Ms Tam would go into the kitchen to help keep the place clean. If there was too much washing, she would arrange a front of house staff to go into the kitchen to help the plaintiff for an hour or two. Or she would ask the bar staff to help the plaintiff. She goes into the kitchen regularly to check that everything was in order.

39.  This part of the defendant’s case was supported by the evidence of Mr Kan Yun Hei (“Mr Kan”), the DW2, who is the general manager of the Human Resources Department of the defendant. He explained in his evidence that the plaintiff was made ‘head cleaner’ about 6 months after her employment. There is no difference in her job nature but she did get a bit more pay. When she was promoted to head cleaner that meant the defendant was satisfied that she could do the job independently with little supervision.

40.  Mr Kan testified that this however did not mean that there was no training or supervision at all for the plaintiff. The training section of the defendant’s headquarters inspects all kitchens once a month, the area managers (one grade above Ms Tam) inspect at least twice a month and other times the managers themselves do the inspection frequently. This goes to show that the defendant has provided sufficient training and safety measures for the plaintiff and its employees.

41.  Mr Kan also gave evidence as to how the Form 2 was filled in. His evidence confirmed that the description about the Accident under the Form 2 could only have come from the plaintiff as nobody from the defendant witnessed how she injured herself.

42.  It is also the evidence of Ms Tam that she would regularly talk to the staff about health and safety; she would go into the kitchen to supervise the work and help out when necessary. When she saw that the kitchen floor was messy she would hose the floor down to maintain cleanliness. There was a colander for the plaintiff to strain food residues from the pots so that the residues were not poured directly onto the floor with the washing water. Regular inspections were made to the kitchen and maintenance was done to the kitchen tiles when required.

43.  For the above reasons, where there is any discrepancy between the evidence of the plaintiff, Ms Tam and Mr Kan, I would prefer the defendant’s witnesses’ evidence than that given by the plaintiff.

Findings of the court on liability

44.  By relying on the often cited passage for assessing the credibility of a witness in Hui Cheung Fai and Anor v Daiwa Development Limited & Others (2014), unreported, HCA 1734/2009 (DHCJ Eugene Fung, SC; 8 April 2014) at §§75-82, I am of the view that the Accident did not happen in the way as described by the plaintiff in evidence.

45.  First, there was no contemporaneous documents from the independent medical practitioners to support her claim that she had a slip and fall on the day of the Accident. To the contrary, those medical records strongly suggest and indeed show that the plaintiff had previous back injury and severe back pain and leg problems prior to consulting them. This is further supported by the indisputable MRI reports which show that the plaintiff has severe pre-existing degeneration on multiple levels of her spine before the Accident.

46.  Second, the plaintiff’s own multiple inconsistent accounts of the Accident only highlight the fact that she is not a reliable witness and her evidence cannot be trusted. There is no doubt that she had sustained some sort of injury to her back or waist on the day of the Accident, but it is by no means clear whether they were caused by the aggravation of her severe pre-existing condition or merely by pulling a normal size soup pot. However, what is clear to me is that she did not slip and fall as claimed by her in the SOC and in her evidence.

47.  Third, it is clear that the task of pulling a soup pot of the size as described by Ms Tam (even with pots and pans but without water inside) was not a difficult task that would require special skills or instructions. It is within the day-to-day task of that of a head cleaner in a busy kitchen like the Restaurant. The fact that the plaintiff might have sprained her back / waist while working inside the Restaurant does not necessarily indicate any breach of duties on the part of the defendant at all.

48.  Given all the discrepancies and inconsistent statements given by the plaintiff, I am not satisfied that the Accident happened in the way as pleaded in the SOC and/or described by the plaintiff in her evidence in court. I find the plaintiff has failed to prove her case on a balance of probabilities. Hence, I would dismiss her claim on liability.

QUANTUM

49.  In case I am wrong on the issue of liability, I shall discuss the issue of quantum hereinbelow and state the amount of damages that I would have allowed had the plaintiff succeeded in her claim.

Injuries & treatments

50.  Immediately after the Accident, the plaintiff attended Mr Chan of CHK Care Centre specialised in treating low back injuries.

51.  The plaintiff consulted Dr Chung of LHMC during the period from 4 days before the alleged Accident to 30 August 2019 for 11 times due to left leg pain and back pain. She was prescribed with analgesics and nonsteroidal anti-inflammatory medicines in her visits.

52.  The plaintiff first attended the O&T of KWH on 30 July 2019. Examination revealed tenderness over lumbar region, left L5 power 4/5, L5 numbness, jerks intact and positive straight leg raise test on left side with neurotension sign. She was referred to the Outpatient Physiotherapy Department (“OPD”) for pain relief.

53.  The plaintiff attended the first appointment at the OPD on 15 October 2019 and had completed a total of 19 treatment sessions and was discharged on 17 March 2020. Treatments included interferential therapy, pulsed electromagnetic field therapy and hot pack therapy. Graduated neck, back and lower limb mobilisation, stretching and strengthening exercises were given to promote the healing.

54.  The plaintiff consulted Dr Wilkie Ngai, an orthopaedist in private practice, on 16 October 2019. Physical examinations revealed tenderness over lumbosacral region. Range of back motion was limited by pain. Straight leg raising was limited by pain. Conservation treatment was offered with medications given.

55.  The plaintiff consulted Dr Ian Wong on 5 September 2019. Examination revealed there was percussion tenderness over left lumbo-sacral junction. X-ray was reviewed which showed left lumbar scoliosis, with disc spaces relatively spared. Conservative treatment was adopted with medication given. She was advised to proceed with physiotherapy. She subsequently attended the clinic on 17 September 2019, 3 October 2019 and 24 October 2019.

56.  The plaintiff was then referred to the Occupational Medicine Unit (“OMU”) of KWH for work capacity evaluation and work rehabilitation. Initial work assessment was done on 20 January 2020. After the initial assessment, she was scheduled to attend a course of training starting on 4 February 2020. The training was suspended due to COVID-19. She was reviewed on 17 April 2020 where final work assessment was conducted. Her performance did not match with the job demands of her previous job due to poor standing tolerance.

57.  Apart from the above hospitals and clinics, the plaintiff had consulted Heart to Heart Chinese Medicine Company Limited, The Hong Kong Buddhist Association-The University of Hong Kong Clinical Centre for Teaching and Research in Chinese Medicine, 如意堂中醫醫療中心, 陳權壽醫館 and 長城大藥行 for her low back injury.

58.  As of the date of RSOD, the plaintiff was still attending follow up at KWH and OLM Robert Black General Out-patient Clinic.

59.  The plaintiff was granted sick leave from 26 July 2019 to 3 April 2023.

The Joint Medical Experts’ Report

60.  On 7 October 2022, the plaintiff was jointly examined by Dr Johnson Lam for the plaintiff and Dr Arthur Chiang for the defendant.

61.  In the JMR, Dr Lam and Dr Chiang agreed that:-

“(1) The plaintiff has reached maximum medical improvement;

(2) In terms of physical examination findings, there was left scoliosis which was pre-existing. There was paraspinal tenderness, guarding and muscle tightness but no muscle spasm. There was tenderness in the midline of lumbar spine maximum over the lower lumbar and lumbosacral junction. The ranges of motion of the back were decreased. There was, however, no objective neurological deficit in the left lower limb; result of the Straight Leg- Raising test taken in sitting position was normal.

(3) Examination by another specialty is not necessary.”

62.  In addition, Dr Lam opined that:-

“(1) The diagnosis was soft tissue injury to the low back. This injury was consistent with the mechanism of injury described and the Accident (if it did happen) should be the sole cause of this injury;

(2) MRI on 25.10.2019 showed diffuse lumbar spondylosis with scoliosis; broad based posterior disc protrusion with tiny annular tear at left posterolateral aspect at L4/5 level with bilateral facet hypertrophic degenerative changes more prominent on left side. These are causing severe left L4/5 lateral recess stenosis slightly touching left transiting LS nerve root;

(3) It is likely that overall the plaintiff had moderate degenerative changes in lumbar spine. It is likely that these degenerative changes were symptomatic prior to the Accident;

(4) It is likely that even if the plaintiff had symptomatic degeneration of the lumbar spine prior to the Accident, the symptoms were likely relatively mild and tolerable. This was in contrast to her back condition after the Accident, with rather severe back pain going down the left lower limb;

(5) It is likely that the plaintiff still had some residue back pain contributed by trauma caused by the Accident, but there was no significant pain/impairment caused by nerve impingement irritation;

(6) The degree of residue pain and impairment caused/contributed by the Accident itself is estimated to be mild;

(7) The plaintiff is independent in activities of daily living;

(8) With more self-exercises to strengthen the low back, and a gradual return-to-work program for adaptation and to improve endurance (e.g. avoiding heavy lifting over 30 lbs initially, gradually stepping up; allowing more breaks for rest or stretch after prolonged work), P may be able to gradually return to her pre-accident job with reduction in work capacity. As an alternative, jobs that require lighter physical demand on low back are more suitable. Examples include a gas station worker, a watchman or a security guard in relatively stationary post. Retirement is another option;

(9) The low back injury itself should carry 3% loss of earning capacity and 3% of whole person impairment; and

(10) Sick leave issued by the plaintiff’s treating specialists/doctors who assessed her is appropriate and should be endorsed.”

63.  On the other hand, Dr Chiang opined that the plaintiff had suffered from prolapsed lower lumbar disc.

64.  On the issue of pre-existing degeneration and apportionment, both doctors agreed that there were pre-existing degenerative changes.

65.  Dr Lam opined that the pre-existing degenerative changes in her low back should account for 40% of her current state, whereas Dr Chiang opined that the pre-existing changes should account for 95%.

The plaintiff’s pre-existing condition

66.  There cannot be any dispute that the plaintiff had back pain prior to the Accident and there was extensive degeneration in both of her back and neck. On the day of the alleged Accident she was seen by Dr Chung who had X-ray of the lumbosacral spine and cervical spine done. This showed degenerative changes at all levels of lumbar spine and L5/S1 with narrowing of intervertebral disc space. Degenerative changes were also present at the cervical spine at C3/4, C4/5, C5/6 and C6/7 with narrowing of intervertebral spaces.

67.  In October 2019, Dr Wilkie Ngai referred the plaintiff to receive a MRI of the lumbar spine and the result showed extensive degeneration with multiple levels of canal stenosis and broad based disc protrusions.

68.  As mentioned above, both experts accept that there was extensive degeneration of the lumbar and cervical spine and that apportionment for pre-existing condition under the Chan Kam Hoi categories is appropriate.

69.  Both experts find the plaintiff to be under category 2, ie without the Accident she would be in the state that she was in either by progression of the degeneration or some other event. Dr Lam estimates that without the Accident the plaintiff would progress to her present condition in 8 to 10 years and assessed her whole person impairment and loss of earning capacity to be at 3%. He apportions 60% of the present impairment and disability to the low back to the Accident and 40% to the pre-existing degeneration. The plaintiff has accepted that apportionment and has reduced her claim for pain, suffering and loss of amenities and pre-trial loss of earnings by 40% under the RSOD. However, this has been further reduced to 60% under the plaintiff’s opening submissions. For future loss of earnings with retirement age at 70, the plaintiff’s counsel has adopted a reduced multiplier to reflect the pre-existing degeneration.

Dr Chiang’s opinion

70.  In my judgment, Dr Chiang has made a very careful analysis of the symptoms and complaints as recorded in the plaintiff’s treatment notes to arrive at his conclusion. Based on the fact that there was no contemporaneous complaint to both Mr Chan of CHK Care Centre and to Dr Chung of LHMC, he opines that “the absence of recording of a back injury on 26 July 2019 indicated that the ‘described injury’ could not be verified, and likely had not actually happened. Based on the described increase in symptoms on 26 July 2019 in the records of both centres, the possible presence of aggravation by heavy manual work or non-work activities on 26 July 2019 could not be excluded”.

71.  Dr Chiang is of the opinion that the plaintiff likely suffered from prolapsed lower lumbar disc as she had multiple levels of lumbar disc degeneration with more significant involvement at the L4/5 level. The more likely diagnosis for her back pain and left lower limb complaints was aggravation of one of the pre-existing degenerative lumbar disc prolapses, probably at the L4/5 disc. He followed up with saying that due to the absence of reporting by the plaintiff of the described injury when she was seen in the 2 clinics on 26 July 2019 and in the follow-up visits, it was more likely than not that there was no clinically obvious sprain or contusion that happened on 26 July 2019.

72.  Dr Chiang went through the plaintiff’s clinical records and set out in details his observations at pp 42-45 of the JMR. These show that the plaintiff’s low back and left lower limb radiating symptoms and numbness had satisfactorily improved by February 2020 and had recovered to the state of the low back before the onset of symptoms in mid-2019. Her back condition remained stable from February 2020 to around September 2020.

73.  It was on 22 September 2020 that she complained of left L5 numbness and there was mild grade 4 weakness of the L5 motor power. On 2 February 2021 the back condition appeared satisfactory as there was no radiation of pain and not much lower limb numbness or weakness.

74.  However, on 3 August 2021 her left sciatica worsened with claudication symptoms with pain developed with only about 10 minutes of walking. She had been offered operative treatment at some stage before and on this occasion she was keen for operation. In the event no operation was carried out and during the joint examination her symptoms had subsided and no significant residue was found.

75.  Dr Chiang opines that based on the natural course of more significant degeneration of the low back the increased back / lower limb symptoms on 22 September 2020 and 3 August 2021 were consistent with episodes of exacerbation which, if without an acute injury, could be aggravated by subtle stress to the lower back from daily activities that require some forms of exertion or produce the increased loading on the low back such as but not limited to carrying of heavy weights or prolonged staying in stressful work postures. These were solely related to the existing degeneration and not to the resolved episode of exacerbation that started in mid-2019.

76.  He agrees that the plaintiff belongs to category 2 of Chan Kam Hoi and that there is a strong possibility that the progression of the degeneration would have brought about the onset of symptoms that results in the present state. By gross estimation he suggests that this would have happened in a few months from the time of the ‘described injury’.

77.  Dr Chiang agrees that the whole person impairment would be about 3 % including the degeneration and any aggravation on 26 July 2019. He apportions 95% of that to the pre-existing condition and 5% for the aggravation on 26 July 2019. I accept the defendant’s submissions and the evidence of aggravation on 22 September 2020 and 3 August 2021 are clear indicators that the plaintiff’s back condition is susceptible to become symptomatic without any accidental aggravation.

78.  I consider Dr Chiang’s apportionment is fair and reasonable in light of the evidence as meticulously analyzed and explained by him in the JMR.

Dr Lam’s opinion

79.  The plaintiff’s expert Dr Lam opines that the plaintiff has suffered a soft tissue injury to the low back had the Accident occurred. He accepts that during the joint examination there was no objective neurological deficit. He opines that it is likely that the plaintiff still had some residue back pain contributed by the trauma caused by the Accident but there was no significant pain / impairment caused by nerve impingement / irritation.

80.  With due respect to Dr Lam, with all the inconsistencies highlighted jointly by him and Dr Chiang in the opening parts of the JMR under the heading of ‘Review of Medical Documents’[3], I really cannot see how he could arrive the opinion as he did regarding the plaintiff’s pre-existing condition. Those medical documents reviewed included the reports of Mr Chan of CHK Care Centre; Dr Chung of LHMC; Dr Ian Wong; Dr Wilkie Ngai, Dr Moy Lok Tin of O&T of KWH; and Dr Tung Kin Shan Helen of the Flash Mover MRI Center.

81.  More significantly, it is clear that Dr Lam did not believe the plaintiff when he expressed his opinion under the JMR regarding the cause of her injury.

82.  For example, under the heading of ‘Diagnosis, Pre-existing Condition & Causation’, after referring to Dr Chung of LHMC’s report, Dr Lam pointed out that:-

“- 1/ There was no mentioning of the alleged injury-on-duty on 26/7/2019.

- 2/ There was documentation of back and left leg pain as early as 22/7/2019.

- This would mean, contrary to what Madam Yip alleged (“no pain in the back and lower limbs” before subject accident), there was clear documentation of back and left lower limb pain prior to the subject accident on 26/7/2019.”

[emphasis supplied]

83.  After referring to Mr Chan of CHK Care Centre’s report, Dr Lam pointed out the following in the JMR:-

“If Madam Yip did suffer from an injury-on-duty on 26/7/2019(slipped and fell during work), it is very likely that she would have told the CM practitioner about this accident – however, there was NO such record.

- Rather, there was a history of sprain lumbar spine and left hip bone 20 days before 26/7/2019.”

[emphasis supplied]

84.  Having referred to the reports of Dr Moy Lok Tin and Dr Tse Siu Hei Michael of KWH, Dr Lam highlighted the fact that the plaintiff has “a long history of low back pain but did not seek any medical help, exacerbation of low back pain after an injury on duty (on the day of the Accident)”.

85.  With reference to the above reports, Dr Lam stated that he is “dubious about” the following:-

“- 1/ Pre-injury condition: It is likely that Madam Yip’s low back degeneration (on X-rays and MRI scan) was SYMPTOMATIC before the subject accident, contrary to what Madam YIP claimed.

- 2/ The circumstances and occurrence of the alleged subject accident on 26/7/2022 – the fact of which would be decided by the Court.” [4]

86.  Dr Lam concludes on the ‘diagnosis and causation’ of the plaintiff’s case as follows:-

“- Based on the evidences reviewed, and the findings at this examination, assuming that the subject accident did happened, the diagnosis was: Soft tissue injury to the low back. This injury was consistent with the mechanism of injury described if this did happen; and the subject accident should be the sole cause of this injury.”[5] [emphasis supplied]

87.  From the above, it is clear that Dr Lam is very skeptical about whether the Accident actually happened and if it did what caused her injury. Even if it did happen, he opines that the plaintiff had only suffered from a soft tissue injury to the low back during the Accident.

88.  This is where I do not understand Dr Lam’s subsequent opinion on the plaintiff’s pre-existing condition.

89.  With all his reservations and doubts about the genuineness of the plaintiff’s complaints (which are based on the objective medical reports and records), he then tried to underplay the effects of her pre-existing condition in the JMR. I am simply not convinced of the purported reasons relied on by Dr Lam to say that the plaintiff openly had “moderate degenerative changes in lumbar spine” radiologically (when the MRI reports clearly show severe degeneration on multiple levels); and that functionally that her symptoms were likely “relatively mild and tolerable”, when all the objective medical opinions and records indicate otherwise: See §55 of the JMR at [2/230].

90.  In my judgment, his conclusion that “it is likely that the subject accident had caused significant trauma to the back, aggravating the low back degeneration, causing/contribution to more persistent and disabling symptoms in the low back”[6] simply does not sit well with the medical records and the various treating doctors’ reports in the case. In my view, it is a quantum leap for Dr Lam to jump from doubting how and whether the plaintiff sustained her injuries on the day of the Accident to a conclusion that the soft tissue injury sustained by her would account for 60% of her present impairment and disability. In my opinion, it simply is not logical and does not make sense. With respect, this has all the hallmarks of an expert trying to advocate a party’s case on behalf of his client, ignoring all the objective and independent medical records and evidence. I do not accept Dr Lam’s opinion on this at all.

91.  The irony in this case is that even the plaintiff’s own legal representatives are not convinced that Dr Lam’s assessment of a 40% discount on the pre-existing condition is fair as Ms Choy the plaintiff’s assigned counsel has fairly conceded that the appropriate discount should be at 60% at the opening stage of the trial.

92.  In the aforesaid premises, I have no hesitation to reject Dr Lam’s opinion in this case and would prefer and accept that of Dr Chiang instead.

The plaintiff’s other medical problems

93.  In addition to her degenerative back, the plaintiff has various medical and psychiatric conditions as set out in the JMR and in the various treatment reports in bundle C of the trial bundles. In brief she had a long history of bilateral varicose veins and was receiving treatment for the condition since October 2017. When she was seen in June 2022 she complained of heaviness and tiredness feeling on walking, frequent leg cramps, occasional burning sensation and itchiness over lower limbs. She has been treated for obsessive compulsive disorder since 1995 up to at least September 2022. These conditions would affect her ability to continue to work as a cleaner.

Loss of earnings

94.  With the evidence as outlined above, I agree with Ms Lee that it is extremely unlikely that the plaintiff would have been able to continue working as a dishwasher even if the Accident did not occur. Natural progression of degeneration and the bilateral varicose veins would have rendered her unsuitable for heavy manual work. In any event, the normal retirement age of her job with the defendant under the contract is at 63 only. She is now 63.5 years old already. So she would not be able to continue to work for the defendant even if the Accident did not happen. The job she now has as a swimming pool attendant suits her physical ability.

95.  That being the case, I am of the opinion that there is no loss of earnings beyond her sick leave period attributable to any act of the defendant. There is also no loss of earning capacity. Her continuous employment since March 2020 is the best evidence that in the line of work in which she is physically capable she has no disadvantage for her age.

96.  For the 5 months sick leave given by Dr Chiang (which I consider as more than reasonable), the loss would be at HK$87,150 (HK$16,600 x 5 + 5% MPF).

Pain, suffering and loss of amenities (“PSLA”)

97.  On PSLA, the plaintiff claimed a sum of HK$350,000 but has reduced it to HK$210,000 under the RSOD, after giving a deduction of 40%. The defendant conceded HK$20,000 on a without prejudice basis after taking into account a deduction of 95%.

98.  Ms Choy for the plaintiff has referred me to the following cases and submits that an appropriate sum for PSLA is at HK$300,000 before discount of 60% by reason of her pre-exiting condition, making an award of HK$120,000 after the discount:-

(1)  Shek Kam Ching v Po Kee Construction Engineering Ltd & Ors [2002] 3 HKLRD 795.

(2)  Mahmood, Nazir v Chin Wai On and Pun Wai Ming T/A Kenz Engineering Co & Ors (HCPI 741/2006, unrep., 23.8.2008).

(3)  Tamang Rabichandra v VSL SWC (a firm) & Anor (HCPI 659/2007, unrep., 17.9.2008).

(4)  Razaq-Akhtar v Wang Hoi Transportation Ltd (HCPI 303/2007, unrep., 24.10.2008).

(5)  Altaf Ahmed v Innovative Network Engineering Company Limited & Anor (HCPI 237/2008, unrep., 21.12.2010)

(6)  Wong Yun Chiu v Union Printing Company Limited (HCPI 282/2009, unrep., 29.7.2011).

(7)  Thapa Goma v Tina Global (HK) Ltd & Anor [2019] HKCFI 471.

(8)  Tamang Shushma v Pizzaexpress (Hong Kong) Ltd [2023] HKDC 1328.

99.  Ms Lee for the defendant on the other hand has referred the court to the following cases and urges the court to bear in mind that the plaintiff has recovered satisfactorily from the July 2019 exacerbation and that any claimed serious pain and discomfort now would be due to exaggeration and the progression of degeneration but not related to the July 2019 incident:-

(1)  Amjad Ul Mahmood v Profit Hill International Holdings Ltd. [2023] HKDC 347.

(2)  Ng Ting Chun v Chung Man Chun Philip, unreported, DCPI 1070/2007; 19 June 2008.

(3)  Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Ltd., unreported, HCPI 77/2007, 15 August 2008.

(4)  Yuen Chung Shun v On Ascent Ltd. [2016] 4 HKLRD 250.

(5)  Wong Siu Wa v Win Sino Engineering Ltd., unreported, HCPI 571/2016; 3 August 2018.

(6)  Wong Ching Yau v Group Yield International Development Ltd., unreported, HCPI 637/2008; 27 January 2010.

100.  The defendant submits that in the circumstances an award of HK$150,000 (before the discount of 95% for pre-existing condition) would be appropriate, having regard to the effects of inflation over the years.

Other special damages

101.  On special damages, the plaintiff has claimed medical expenses of HK$469,730, tonic food of HK$200,000 and travelling expenses of HK$10,000.

102.  The plaintiff has produced several box files of treatment receipts from Chinese Medical Practitioners and tonic food receipts for many items that she purchased over the years in amounts far exceeding the pleaded claim. There is no advice from any medical professional that the consumption of tonic food to the extent of several hundred thousand dollars was necessary or beneficial. There is also no justification to claim the costs of continuous Chinese Medicine treatment from the defendant since the experts have not advised that continuous treatment is necessary. Further she had reached MMI in late 2019 / early 2020 and it is for her to justify to the court why further treatment is necessary.

103.  Surprisingly, the plaintiff has completely conceded her claim of HK$200,000 on tonic food under her counsel’s opening submissions and has substantially reduced her claim for both Chinese and western medicine / treatment to a sum of HK$100,000 only.

104.  The defendant is prepared to offer HK$5,000 for medical expenses, HK$1,000 for tonic food and HK$800 for travelling expenses. The defendant submits that sick leave for 5 months is appropriate and any medical, tonic food and travelling expenses incurred after those 5 months are for the treatment of her pre-existing conditions and the aggravation of the pre-existing degeneration and has nothing to do with the Accident.

105.  I agree with the defendant’s submission and would award HK$5,800 as special damages in this case, given the plaintiff’s unexpected concession on the tonic food and medical expenses claim.

106.  Besides giving credit to the employees’ compensation received from the defendant, the plaintiff’s counsel in her closing submissions has also fairly prepared to give credit for the overpaid MPF, discretionary bonus, etc which the defendant has identified. They are in the total sum of HK$192,036.81.

Summary of calculations

107.  The amount of damages I would have awarded to the plaintiff had she been able to establish liability in this case would be as follows:-

(a)	PSLA	HK$150,000
(b)	Loss of earnings & MPF	HK$87,150
(c)	Special damages	HK$5,800
		HK$242,950
	Less: EC received	(HK$192,037)
	Total:	HK$50,913
		========

108.  With a 95% discount for pre-existing degeneration, the amount recoverable would be reduced to a negative figure after taking into account of the EC payment received.

109.  Thus, on the evidence, the plaintiff would have failed on the issue of quantum in this case also.

CONCLUSION

110.  Based on the aforesaid, I would dismiss the plaintiff’s claim with an order that the plaintiff should pay the costs of the defendant of the action, such costs to be taxed if not agreed with certificate for counsel. The plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations.

111.  I will make the above costs order on a nisi basis. In the absence of any application by the parties to vary the same within 14 days, the order will become absolute.

Comments on the preparation of the trial bundle

112.  Before ending this judgment, I would like to make a few comments on the preparation of the trial bundle (“the Trial Bundle”) by the parties in this case.

113.  By an order dated 13 November 2023 of Master Stanley Ho (“the Order”), this case has been set down for trial before a bilingual judge in the running list, not to be warned before 15 January 2024, with an estimate of 3 days, using the trial bundle agreed by the parties.

114.  §12 of the Order stipulates, inter alia, that the plaintiff’s solicitors shall lodge with the court and serve on the other parties the Trial Bundle no later than 7 days before trial.

115.  By §5 of the Order, the plaintiff was given leave to set down the case for trial in the running list. The application to set down for trial was filed by the plaintiff’s solicitors on 12 December 2023. It was transferred to the warned list on 17 January 2024, for the case to be warned for trial during the week commencing on 22 January 2024. The case was fixed for trial before me commencing on 23 January 2024 (with an estimated length of 3 days).

116.  For a simple 3-day running list case, the parties somehow managed to produce 11 box files for the trial. They included 9 lever arch files marked as “Trial Bundle” and 2 lever arch files marked as “Bundle of Medical Records”. They added up to a staggering number of 2,455 pages.

117.  Out of the 9 box files for the Trial Bundle, only documents contained in Bundles 1 & 2 (415 pages) have been referred to in the plaintiff’s opening and during the trial. The rest of the documents contained in Bundles 3 to 9 (a total of 1,566 pages), which mainly consisted copies of medical certificates, receipts for medical treatments (mainly from traditional Chinese medicine practitioners) and receipts for tonic food, have not been referred to during the trial at all. None of the documents contained in the Bundle of Medical Records (472 pages) have been referred to either.

118.  In fact, the plaintiff’s counsel has, on the first day of the trial under her opening submission, conceded the claim for tonic food at HK$200,000 which had all along been pleaded and maintained under the RSOD. Further, out of the total sum of HK$525,480 of receipts produced, a sum of HK$469,730 had been claimed under the RSOD. However, the plaintiff’s counsel was prepared to concede that to a sum of HK$100,000 (for both of her western and Chinese medical treatments) in the opening.

119.  At the end of the trial, I invited the solicitors on both sides to lodge a short submission to explain to the court why all those documents contained in Bundles 3 to 9 of the Trial Bundle and the Bundle of Medical Records have been included when it was clear that the plaintiff has no intention to rely on them.

120.  The plaintiff’s solicitors in their short submissions insisted that the defendant’s solicitors have inspected the receipts (back in June 2022) and indicated that they wanted to include them in the Trial Bundle (by a letter dated 19 September 2023). They were “given to understand” that the defendant’s team would need to refer the receipts during the trial and therefore acceded to their request.

121.  The defendant’s solicitors dispute the above claims and set out their own version of events. Perhaps the most relevant and valid point made by the defendant is that once the plaintiff has the intention to withdraw her claims on tonic food and most of her medical treatments, she should have informed the defendant and suggested to take out the unnecessary parts of the documents out of the Trial Bundle. The plaintiff’s solicitors have clearly failed to do so.

122.  In my view, the primary responsibility of compiling of a trial bundle (including the decision of whether to include or exclude certain documents) lies with the party who is charged with that task, usually the plaintiff in a case. Of course, throughout the process, the views and agreement of the defendant(s) should be sorted and, as much as possible, would be respected and included. Further, the directions of the court, usually given by the masters at the checklist review hearings, should be followed.

123.  However, it is incumbent on the party who is given the responsibility to compile the trial bundle to exercise good common sense and to act reasonably. If in doubt, they should always seek written confirmation from the other parties or direction from the court if they do not think it is necessary to include certain documents in the trial bundle but the other parties insist. For cases where there is a large number of receipts for tonic food or medical treatments or copies for the medical certificates, often an agreed summary of those documents are all that is required with perhaps a master copy made available for use should any dispute arises during the trial.

124.  In the case where a plaintiff is going to withdraw or has withdrawn his claim for any of those items which the documents are produced to support, it is the plaintiff’s solicitors’ responsibility to make sure that those documents will be taken out of the trial bundle prior to the trial or as soon as possible.

125.  In the present case, the plaintiff knew well that her counsel was going to concede the claim for tonic food and the major part of the claim for medical expenses before the commencement of the trial. The opening submission was dated 15 January 2024.

126.  Although the Trial Bundle was served on the defendant and lodge with the court on 8 January 2024, I cannot see such major concessions would be taken as a last minute decision and by the plaintiff’s counsel alone. The plaintiff and her legal team must knew that it was likely going to happen. Yet, nothing was done about the Trial Bundle at all at any time prior to or after those concessions were made. This is most regrettable.

127.  In my judgment, the plaintiff’s solicitors should be held responsible for the unnecessary inclusion of most of the documents contained in Bundles 3 to 9 of the Trial Bundle and the 2 Bundles of Medical Records. They consisted of over 2,000 pages of unnecessary documents in each set of the Trial Bundle. 6 copies were made of each set for the purpose of the trial. In other words, over 12,000 pages of wasted paper are going to be sent to the landfills just because someone did not put their mind to it. This is not counting the costs of compiling and photocopying those documents.

128.  I therefore direct that the plaintiff will not be allowed to recover the costs of preparing those documents in relation to the tonic food and Chinese medical treatments they have conceded in the taxation of this case.