WONG PUI SEUNG SHIRLEY v. COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

HCPI 1348/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1348 OF 2003

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J U D G M E N T

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1.  The plaintiff was employed for many years by the ICAC as a Chinese Language Officer (“CLO”), under a series of contracts from 1988 to 2004.  Her job was to translate documents between Chinese and English, and she had to use a typewriter or computer keyboard extensively.  By reason of the repetitive tasks she had to perform in the course of her employment, the plaintiff developed tenosynovitis, also known as de Quervain’s syndrome of both forearms and hands.  She claims damages for negligence, breach of contract of employment and breach of the Occupational Safety and Health Ordinance.  The defendant admitted liability at the trial, and the dispute is as to quantum.

2.  In 2004, the plaintiff’s contract was not renewed.  Since then, she has worked little, and has not been able to obtain work as well paid as that which she had with the ICAC.  In brief, the main part of her claim is that the non-renewal of her contract came about as a result of the occupational disease which she suffered, and that but for it she would have continued to work for the ICAC, obtaining salary and other benefits, until the retirement age of 60 years.  She claims that the ICAC is therefore liable to compensate her for loss of earnings on the basis of the difference between what she would have earned, had she continued in its employment, and what she is now able to earn.

Issues

3.  These are:

(1)     The extent of the injuries caused by the plaintiff’s work in the ICAC, and the degree of permanence of the disabilities;

(2)     Whether the plaintiff could have been expected to continue in employment with the ICAC up to age 60;

(3)     Whether the non-renewal of her contract was caused by the disabilities, so that, but for them, she would have continued in employment;

(4)     Whether, on the same basis, she would have obtained housing benefits in that employment;

(5)     Whether she has failed to mitigate her loss.

The major issue is the third one, and that is the most difficult.

The plaintiff’s employment

4.  The plaintiff, who was born in 1963, worked for the ICAC as a CLO II from 1988.  Her duties involve translation of documents, such as statements, records of interviews, tape transcripts, speeches, papers, and minutes of meetings from English into Chinese and vice versa.  She had to type out what she translated, and in the beginning she used a manual typewriter.  Later, she used an electric typewriter and from about 1996 she used a computer keyboard.  Her working hours were from 8:45 a.m. to 5:15 p.m. and she has given details of the percentage of her time, at different periods, which was spent on typing work.

5.  On 12 June 1996 the plaintiff was promoted to CLO I.  She had to supervise other staff, but she says that most of her time was still taken up with translation and typing.

6.  The plaintiff was originally employed on a series of 2½-year contracts, with a gratuity of 25% of salary payable at the end of the contract.  In fact, these were originally linked contracts; the ICAC referred to them as “rolling forward linked agreements”.  In the beginning, an officer would be employed on a single contract.  Thereafter the arrangement was that, subject to satisfactory service, the officer would have an agreement for two linked tours, each of 2½ years’ service.  Again, subject to satisfactory service, the officer would be offered the option to have the second tour replaced by a new linked agreement of two tours. 

7.  According to a staff circular issued in 1988, there would be no automatic rolling forward of linked agreements.  The option would only be granted to “able and efficient officers, with overall satisfactory service at the time of consideration for further employment”.  Mr Chang, counsel for the plaintiff, has helpfully summarised all the annual and other reports, and it appears from these that until the end of 2000 the plaintiff apparently satisfied this requirement.  In October 2000 she was recommended for a further linked agreement.  It was noted that she had been able to maintain her performance at a very effective level since 1997.  She was offered a further linked agreement and in December 2000 she opted to take it.

8.  Arrangements changed in March 2001, however.  On 3 March 2001, the ICAC wrote to the plaintiff referring to a review of the terms and conditions of linked agreements, and inviting her to exercise the option again, and she opted to take a new single-tour agreement.  In her 1st witness statement the plaintiff says that she was “induced” to do this.  In fact it appears from the correspondence that the new terms and conditions were introduced to take account of the MPF legislation and its impact on gratuities.  There is no evidence other than what appears in the statement to show that any inducement was offered to her.

9.  The plaintiff entered into a new agreement for a 2½ -year tour from 4 June 2001 to 31 December 2003.  A gratuity was payable on completion of the tour, “subject to the Commissioner being satisfied that the officer’s performance and conduct have been satisfactory during the period of service”.  The tour was extended for three months to 3 March 2004.  No further employment was offered, and the plaintiff finally ceased to be employed by the defendant on 30 August 2004 after a period of accumulated leave on full pay.

10.  The plaintiff was refused the gratuity for this tour on the ground of unsatisfactory performance and conduct.  She instituted proceedings in the Labour Tribunal which were later settled; the defendant paid the gratuity. 

Evidence

11.  This comes from the plaintiff herself and from one defence witness, Mr Dominic Wong Lok Ning, a Principal Investigator I.  He was the plaintiff’s superior who, in effect, made the decision not to renew her agreement in 2004. 

12.  The plaintiff adopted three written statements as well as giving some oral evidence.  The first statement is the kind of statement one usually sees coming from a plaintiff in a personal injury case; it covers the evidence on liability and quantum on which she relies in support of her claim.  In the third witness statement the plaintiff deals with some physical aspects of how she had to sit to do her work, and with the steps she took to find work after he had left the ICAC.

13.  The defendant filed a large number of witness statements made by persons who were not in fact called to give evidence.  In the plaintiff’s second witness statement she goes through all these witness statements at length, taking issue point by point with what their makers have said.  Of course these statements, not having been adopted by live witnesses, nor being, so far as I know, the subject of any hearsay notice, are not evidence.  I cannot rely on what they say but, in so far as the plaintiff relies on specific points, I can take note of those points as showing what were the attitudes of her superiors to her and her work.  I have also before me a great number of papers, in particular reports made on the plaintiff at different times, which show the views of her superior officers, particularly in the course of her final tour of duty.

14.  I think it is necessary to set out some of the plaintiff’s evidence contained in her first witness statement about the work she had to do, and the manner in which she did it.  What she had to do, of course, was to translate documents from one language to another and to type out the result in the second language.  In the beginning, she used a manual typewriter and then an electric typewriter, and in about 1997 she was provided with a computer.  For Chinese translations she used the “cangjie” method of input, i.e. by keystrokes.  She also had available, at any rate after she returned to work in 2001, the “mengtian” input by way of writing the character strokes on an electronic pad, though she did not use it because she then only translated from Chinese to English.  

15.  The plaintiff says that she used to translate and type at the same time.  If amendments were required, when using a manual or electric typewriter, she could use correcting fluid or re-type the page and she chose the latter course.  When she started to use a computer, she had more flexibility in editing and correcting, and so would make a quick translation draft first and then edit and re-edit it.  She might actually type some 20 pages in terms of hand movements in order to produce 10 pages of work.

16.  When the plaintiff was promoted she had to take up administrative work as well as translation and she says that she spent about 70% of the time, or from five to six hours a day on the actual typing work.  However, in October 2000 she was transferred to the Quick Response Team where she had to translate more documents on an urgent basis.  Work stress increased a lot and her typing work increased to take up 90% of her time.  This was when the problems with her hands began.

17.  The plaintiff says that she started complaining about hand pain to her superiors in late 2000.  She first went to the Occupational Health clinic on 15 February 2001 and was told that she had an occupational disease.  She says that she begged the doctor to observe her case first before issuing the requisite form to the defendant to inform it of the occupational disease.  She was afraid that if the defendant knew that she had an occupational disease, her agreement service would be terminated.  The basis for this fear was, apparently, the fact that other CLOs with occupational diseases in their hands had been regarded as fakes and troublemakers by the defendant and some had had their service terminated.

18.  This fear of termination seems to have coloured the plaintiff’s attitude and actions up to the time when her service was in fact terminated.  She says that in December 2001, the Labour Department advised her that if she wished to claim compensation for her occupational disease, she must launch a claim within 24 months.  She hesitated to institute proceedings because, at that stage, she was waiting for an answer as to whether liability was admitted by the defendant.  In May 2002 she was informed that the defendant did not consider her condition to be an occupational disease.  Although advised to do so by a Legislative Councillor, she did not take action under the Employees Compensation Ordinance, because she did not want the adverse effect which she expected litigation to cause to her employer-employee relationship.

19.  The plaintiff remained on sick leave from 15 February to 24 September 2001.  She says that her superiors refused to accept that the sick leave was prescribed for an occupational disease.  She was refused sick leave under the Employees’ Compensation Ordinance, so she went back to work in September because her full-pay sick leave entitlement had run out.  Nevertheless, she still had significant symptoms over her wrists.

20.  After she returned to work the plaintiff’s immediate superior, Ms Ella Tsang told her that she could use a voice-recognition (“VR”) software typing system in order to avoid frequent typing activities.  She was also put into a small room, instead of the translation pool, in order to use that system.  She had difficulty in adapting to the system, and it made constant errors.  Her productivity went down.  In fact she only translated from Chinese to English, using this system.

21.  Then in August 2003, she says, she was transferred back to an open-plan office.  In fact this coincided with her being put on to full duties for assessment purposes, to see if her contract could be renewed; see below.  She says that the VR software malfunctioned because of the noise in the office, so that she had to spend more time on correcting the work manually, and her time spent on keyboard work increased to 80% or 90%.  The pain in her wrists, especially over the thumbs increased; and so did the stress on her.  She says that she complained to Mr Dominic Wong, the officer superior to Ms Tsang but he did not take any action to improve her work environment.  She also says that she attended the Occupational Health Clinic on and off, but there are no sick leave certificates and it appears that the first piece of medical evidence of problems at this stage comes in December 2003.  In that month she was referred to the psychiatric clinic.  She also had a short period of sick leave for her hand problems.  She had sick leave again for a short period in January 2004, also for hand problems, and in February 2004 when she was referred for physiotherapy. 

The annual and other reports

22.  The plaintiff’s annual and various other reports are all before me; a large amount of paper set out in badly organised bundles.  Mr Chang, counsel for the plaintiff has helpfully summarised what they said.  The pattern seems clear enough when one looks at the “Overall Performance” ratings.  From the time when she was promoted up to the end of 2000, she had reasonably good annual reports; she was mostly graded “Effective”, and  “Very Effective” in 1998 and 1999.  However, from 2001 onwards, the gradings became appreciably worse.  I will return to these below.

23.  One of the main criticisms of the plaintiff in the later reports related to her productivity.  This was also referred to in the defendant’s Statement of Defence in the Labour Tribunal proceedings concerning the gratuity, a document on which the plaintiff relies as showing that the real reason for not renewing her contract was her physical condition.  Paragraphs 3 and 4 of the Statement of Defence reads as follows:

“3.     Ms Wong’s performance had deteriorated during her current agreement period.  Her productivity in translation work was disappointingly low.  She was unable to undertake urgent translation work and could not be relied upon to meet tight deadlines.  As a result, if she was put under close monitoring by her supervisors.  Despite repeated guidance and advice regularly given by her supervisors, if she failed to perform up to the standard required.  In particular, she had not demonstrated fully the core competencies required of a Chinese Language Officer I.

4.      In view of her unsatisfactory performance, Ms Wong was first informed by her supervisor at an interview on 31.7.2003 that her overall performance was inadequate to justify a recommendation of offering her further employment.  After reviewing the performance in November 2003, it was decided not to offer Ms Wong further employment but to extend her agreement for three months up to 3.3.2004.”

24.  It is of course true that the complaints about the plaintiff’s productivity started in early 2001.  In her annual report dated 19 January 2001 it was noted that on returning to the pool (Quick Response Team) in 2001 her translation performance in terms of productivity was rather disappointing.  With such productivity levels, if she could hardly meet the requirements of a QRT CLO.

25.  The appraising officer also noted that the plaintiff was “quite disappointing in adaptability, reliability and commitment.”  It was further noted that “Despite her performance standard, she tends to find excuses for herself instead of accepting advice and striving for improvements.”

26.  The appraising officer was Mr Tsang Yan Sang, one of those who has not given evidence, and the countersigning officer was Mr Dominic Wong.  The plaintiff took issue with some of the points made by the appraising officer, and Mr Wong held an appraisal interview.  His comments appear in the report and it appears that he took into account the plaintiff’s comments.

27.  The next annual report is dated 4 January 2003 and it is for the year 2002.  The appraising officer was Ms Ella Tsang Wing Ping, who has not given evidence, and Mr Dominic Wong was again the countersigning officer.  Ms Tsang noted the plaintiff in meetings managed to focus on the issue is under discussion and occasionally came up with some constructive ideas.  With an analytical mind, she was good at presenting ideas logically.

28.  Ms Tsang said that Ms Wong had been unable to perform the full duties of a CLO I in the report period.  She was unable to undertake translation work which was more demanding in urgency and could not be relied upon to meet tight deadlines.  She could not perform English-to-Chinese translation duties.  She was unable to lead a team due to her performance inadequacy in the said aspects and her inability to perform supervisory duties has other CLOs I did.

29.  It was, however, noted that the plaintiff was making good progress with her performance, when compared to that in 2001.  Her efforts were much appreciated and she was encouraged to get herself ready as soon as possible to undertake the full duties of a CLO I.

30.  From the appraisal interview, it appears that the plaintiff accepted that the assessment was a fair reflection of her performance during the year.  Mr Wong explained to her that reliance on the VR prevented her from performing the full duties of a CLO I, in particular as the leader of the team.  She assured him that she had been trying very hard to take up other types of work during the year and would be willing to try to lead the team if this was required.

31.  A series of monitoring reports by Ms Ella Tsang which the plaintiff produced as an exhibit to her first witness statement showed that her productivity was very low in the period from September to December 2001, apparently due to her hand pain.  An early report shows that the VR had reduced the time spent typing by “at least 50%” and there was no contrary recorded by the plaintiff; Productivity seems to have improved between December 2001 and August 2002.  By the latter date, she was able to produce 12.8 pages of translation per day, which compared with an average of 15.52 pages for other CLOs I.  Throughout the period, that quality of translation was rated “C” in a range from “A” to “C”.

32.  By May 2003 the ICAC and to consider whether or not to renew the plaintiff’s agreement.  In May 2003, Ms Tsang submitted a report covering the previous three years in which she recommended against renewal.  Again, although Ms Tsang has not given evidence, Mr Wong said that he relied on what she told him about the plaintiff; he did not himself have any direct supervision of the plaintiff.  He was further up the chain of command.

33.  In this report it is said that from 2000 to 2003, the plaintiff was mainly engaged in translation of witness statements from Chinese to English.  The translation managed to convey the intended meaning of the original documents as a whole, though there was room for improvement in terms of fluency and accuracy.  The daily output marginally met the minimum requirement of 13 pages, though it was only confined to translation of witness statements, a very limited share of CLO duties.  It was further noted that in respect of English to Chinese translation, the plaintiff’s performance was unacceptable.  She was unable to handle translation of charges that could not be done with the VR device.

34.  It was further noted that the plaintiff could not lead a team, because she could not manage the performance of subordinates.  She had to work in an isolated office to use the VR device and this impeded her supervision duties.  Further, she was unable to undertake reserve duties which would require the provision of efficient translation within tight deadlines, and the translation of charges which could not be done with the VR.

35.  Ms Tsang said that since the commencement of the current agreement, the plaintiff had never been able to perform the duties of a CLO I fully.  She could not even perform the duties of a CLO II fully.  She was unfit for the post of CLO I because she did not measure up to the requirements of the job.

36.  As to loyalty and work attitude, it was noted that there was nothing seriously wrong with the plaintiff’s work attitude but that she was not very receptive to advices and changes.  This might explain why she always made an appeal when her supervisors’ assessments on her performance were not up to her expectations, such attitude being definitely a hindrance to improvement.

37.  Mr Wong interviewed the plaintiff on 31 July 2003 and, based apparently on what Ms Ella Tsang had told him told the plaintiff that the overall performance was inadequate for him to recommend the offer of another agreement.  However, he was concerned that she had not been in a position for a number of aspects of the work as a normal CLO I to be assessed.  She would therefore be put in charge of the team servicing X group and her work up to 31 October 2003 as fully functional CLO I would be further assessed.  The possibility of extending the current contract for further observation would not be ruled out.  Ms Ella Tsang continued to be the supervising officer.

38.  On 4 November 2003 Ms Tsang submitted another report covering the previous three years.  Much of what appeared in the earlier report about the plaintiff’s inadequate performance of translation duties and supervisory duties was repeated and some of it was amplified.  It was noted that only in March 2003 did the plaintiff make a first attempt to translate an English to Chinese article which was less demanding in urgency.  Her translation speed was unacceptably low in comparison to other officers.  The translation quality was no better than that of her counterparts, although, because of her experience, she should have had an edge over them.

39.  With regard to the recent assessment period, when the plaintiff had been put in charge of the CLO team serving X group, it is noted that the plaintiff’s performance was far from satisfactory.  Her performance as a translator did not compare favourably with her counterparts, especially in handling English to Chinese translations more demanding in urgency, complexity and quality.  Her performance as a team leader was disappointing.  Her commitment and reliability remained disappointing.

40.  In the section on “loyalty and work attitude”, Ms Tsang was much more negative than previously.  She noted earlier criticisms by other officers, and said that in the last two years working under her supervision, the plaintiff’s work attitude was negative.  She was too complex and defensive to accept any constructive criticism.  This was a hindrance to improvement.

41.  Ms Tsang said that the plaintiff always kept her work to the minimum.  She says that in mid-2001, the plaintiff was asked if she would return to light duties with the support of medical advice, but she chose to remain on sick leave until September 2001.  She was given the VR and asked to familiarise herself with it, and resume translation duty when ready.  Three weeks passed but she did not indicate her readiness for work.  She did not formally resume translation duty until 22 October 2001.

42.  It is also said that the plaintiff avoided work since that time.  She never took the initiative to resume normal CLO duties, including reserve duties.  When asked if she was ready, she always answered negatively.  She seemed to have taken advantage of the positive response of the management to accommodate the difficulties, trying to avoid work as far as possible.

43.  There is also a staff report written by Ms Tsang for the period from August to 31 October 2003 when the plaintiff resumed full duty as a CLO I.  The comments regarding the plaintiff’s work as a translator and a team leader are much the same as those noted above.  In addition, it was noted that the plaintiff originally turned down the offer of an advanced Putonghua course, but later accepted it.  This was regarded as showing lack of commitment and reliability.  There was also a complaint that the plaintiff had insisted on taking leave at a time when there was urgent work to do, and this to was regarded as showing a lack of commitment on the part of a team leader.

44.  The plaintiff has produced various documents she wrote at the time, in which she took issue with staff reports and other comments made on her by her superior officers, in particular Ms Tsang.  For instance, the refusal to take the Putonghua course was explained by a complaint that the plaintiff was suffering from sciatica.  This was confirmed in the plaintiff’s own evidence. 

Evidence of Dominic Wong

45.  In Mr Wong’s statement he deals only with what happened from August to November 2003, when the plaintiff was moved to the open-plan office.  He says that he regularly discussed the plaintiff with her superior, Ms Ella Tsang and was told that she had settled in reasonably well.  After Ms Tsang’s mid-year review he read the plaintiff’s response; apparently Ms Tsang thought her new working environment was “OK”.  The plaintiff suggested the installation of partitions at her place of work to help her to improve her performance and reduce her hand pain.  He discussed this with Ms Tsang but was told that the plaintiff’s productivity had improved without it; so he concluded that the change would have no significant effect on the plaintiff’s performance, and he left it up to Ms Tsang to monitor the situation and negotiate with the plaintiff on any improvement in her environment.  When he interviewed the plaintiff on 25 November 2003 in relation to her performance appraisal from 1 January to 15 November 2003, she did not raise the adverse effect of environment on her working performance as an issue. 

46.  It appears from the documents that Ms Tsang interviewed the plaintiff on 3 September 2003.  In her note of the interview, which covered various points, she recorded that she asked the plaintiff if she had any difficulty in using the VR in her present working environment, and the plaintiff replied that the seating arrangement, though not as good as her previous one, was fine for using the device. 

47.  In a handwritten note on the record of interview the plaintiff recorded that it was “not a very accurate record” and appended a fuller note of her comments.  On the point of work environment, she confirmed that she had said that it was not as good as before; and that it was “OK”, by which she meant that she thought she would be able to produce at least the 13 pages of statements and 18 pages of transcripts per day, which had been agreed on as an objective.  However she went on to say that the unsatisfactory environment had affected the VR and she had to do more typing work to correct it, which increased the pain in her hands. 

48.  It was, it appears, on the basis of Ms Tsang’s last reports and of a file note by her also exhibited to the plaintiff’s second witness statement that Mr Wong decided not to recommend renewal.  What he said in oral evidence was that he considered the plaintiff’s productivity, commitment and leadership; she could meet the minimum standard in productivity, but not in commitment and leadership, and so her renewal was not recommended. 

49.  Mr Wong referred to a file note which he had written on 29 November 2003.  In it he set out his method for assessing an officer for renewal.  He said that the judgment would be against capacity to perform her work, commitment and membership of a team.  A firm recommendation would only be made if the officer attained the minimum standard in all three aspects.

50.  In the file note Mr Wong wrote that on the face of her appraisal report, the plaintiff met the minimum standard for productivity, which had been agreed at the beginning of 2003.  This was to be looked at in the light of her physical condition in January 2003.  Minimal productivity was expected from her on the other objects due to her being still not confident to take more responsibility.  It was only in July that she reluctantly agreed to take up the full responsibilities of a CLO I.

51.  He went on to note that the plaintiff was able to meet the minimum standard of productivity.  If the grading had been any lower, there would be no need to look further before a recommendation would be made for no offer, and this was the basis of his recommendation in June 2003.

52.  However, he noted that the plaintiff had failed to reach the minimum requirement in the other objectives set in July 2003.  He had serious doubts as to whether she would in future be able to obtain that minimum standard.  He said that he had come to this conclusion after reading the plaintiff’s responses and researching into her confidential file.  He said that he had grave doubts about her judgment, that she seemed to treat advice and criticism from her superiors with scorn, that she did not accept criticism but always expected to be favourably assessed in a performance appraisal, that she was selective in accepting assignments when providing support to other CLO units and that she would not readily take up complex or long translation jobs despite being a CLO I.  He gave examples in support of what he said.

53.  I return to consideration of the issues and will discuss the above evidence as necessary when dealing with them.

The extent of the injuries and disabilities

54.  The plaintiff began to feel hand pain in late 2000 or early 2001.  She attended the Kwun Tong Occupational Health Clinic (“KTOHC”) on 15 February 2001 and was diagnosed as having traumatic inflammation of the tendons of both hands.  She had slow but gradual improvement and she had sick leave granted by the same Clinic from 15 February to 22 September 2001.

55.  The plaintiff was also referred to the Orthopaedics and Traumatology clinic at the Alice Ho Siu Ming Nethersole Hospital (“AHNH”).  She was seen as an out-patient there on 18 April 2001 and was referred to the Occupational Therapy Department where she was treated conservatively with splintage and strengthening exercises.  She was discharged from the Occupational Therapy department on 22 August 2001 by which time her condition was static.  She resumed work in September 2001 though she still had wrist symptoms and she was given the VR to reduce the amount of typing that she had to do.

56.  The plaintiff continued to attend the Orthopaedics and Traumatology clinic.  She was referred to the Occupational Therapy Department again in February 2002 with left golf elbow (it is not suggested that this had anything to do with the tendonitis).  Again this was treated conservatively and she was discharged on 21 June 2002.  She seems to have gone back to the Occupational Health Clinic from time to time thereafter, however; she has produced progress notes from that clinic up to 17 October 2002.  Thereafter she seems to have had no treatment for her hand problems until the beginning of 2004.

57.  As I have noted above, when she was put on full duties in August 2003, the plaintiff was transferred to an open-plan office.  She says that the VR was affected by the noise and so became less accurate with the result that she had to do more typing.  This caused her more wrist pain, and also stress and insomnia.  She was referred to the psychiatric clinic at the AHNH some time in December; the date is not given.  She received treatment for Adjustment Disorder until 29 March 2004 by which time her condition had improved and she felt more relaxed; she was in a neutral mood, not psychotic, and had no suicidal inclination.  By this time she was on final leave.

58.  The plaintiff had had physiotherapy at the AHNH between March and May 2001.  She was referred for physiotherapy for her wrist condition again on 10 February 2004.  She had sick leave awarded by the KTOHC from 14-16 January and 2-6 February 2004; the certificates show a diagnosis of “bilateral wrist tenosynovitis”.  The latest report from the physiotherapy clinic is dated June 2004 when treatment was ongoing.  She was referred again to the Occupational Therapy Department on 20 April 2004 and was given further training and splintage.  The latest report from that department is dated 24 June 2004, and shows that the plaintiff was last seen on 31 May 2004, when the wrist symptoms had slight improvement only; she was due for re-assessment in October of that year.

The expert evidence

59.  The plaintiff’s expert, Dr Chu Yat Cho, an expert in Occupational Medicine, examined her on 25 June 2004.  At that time, she was complaining of constant dull aching pain and discomfort and on the wrists, more severe over the radial aspect.  Her handwriting and people were significantly hindered.  She could handle chopsticks no more than 10 minutes.  She had difficulty in turning doorknobs and wringing out towels.  She was also unhappy and stressed, and suffered from occasional insomnia.

60.  On examination the plaintiff was found to have tenderness over the extensor and abductor tendons of both thumbs.  There was restriction of the thumb movement and also of the grip and pain over the tendons when the thumb movement was restricted and at the extremes of deviation.

61.  Dr Chu diagnosed tenosynovitis of both forearms and hands, specifically bilateral de Quervain’s tenosynovitis.  He said that when he examined her in June 2004 there was clear clinical evidence that she suffered from that disease.

62.  Dr Chu said that the authorities in the field tended to the view that soft tissue inflammation, including tenosynovitis, would invariably heal.  However, he said that healing could take place over a period of between weeks to many years.  In this case, the plaintiff had suffered from the disease for more than three years and had remained virtually static for two years.  Dr Chu said that it was unlikely that her condition would change substantially in the next year.

63.  Dr Chu took the date of commencement of the disease, as a prescribed occupational disease, as 15 February 2001.  He said that she should be compensated for temporary incapacity for a time span of about three years.  As to fitness for work, she said that her ability to resume work was restricted.  However, she might be able to return to work with suitable assistance.  He was given to understand that the contract may not be renewed, (in fact by then, the plaintiff was on terminal leave) but he said that it would be difficult to find a new job and that her employability was significantly restricted.

64.  The defendant’s expert, Dr Ip, who is an orthopaedic surgeon and a specialist in hand surgery, examined the plaintiff on 15 April 2005.  At that stage, the plaintiff had similar complaints to those recorded by Dr Chu, though in court he said that the condition was worse than when Dr Chu had seen her.  In fact I note that Dr Ip found bilateral ganglia just distal to the radial styloid regions.  Dr Chu did not find ganglia though he found mild thickening of the tendon sheaths.

65.  Having examined the plaintiff, Dr Ip also diagnosed her as suffering from bilateral de Quervain’s disease and mild tendonitis of the wrist extensors and flexors.  He said that the cause of the disease was multifactorial and mainly work-related.  The symptoms could be aggravated by the work.

66.  He noted that the previous treatment had improved her hand and wrist function by 40%.  He suggested a release of operation and excision of ganglia bilaterally with a course of rehabilitation afterwards.  He said that she would be expected to reach up to 70 to 90 per cent of hand and wrist function afterwards.  The function would remain static without such surgical treatment.

67.  Dr Ip’s view was that the plaintiff’s permanent impairment included inability to type at high speed, inability to perform activities of daily living tasks like carrying objects with hook grips, and inability to enjoy sports which require strong thumb gripping.  She would be unable to type for more than one hour per day.

68.  There were many points of agreement between the experts.  However, they diverged somewhat in oral evidence.  To suit the experts’ convenience, Dr Ip was called first; and following Dr Chu’s evidence he was recalled to deal with the new matter.

69.  In his oral evidence, Dr Ip explained the cause of de Quervain’s disease.  It is caused by tenosynovitis of the two tendons controlling the thumb.  This is usually caused by repeated movement and friction between the tendon and sheath, so that there is inflammation and the tendon does not ride smoothly.

70.  Dr Ip said, in effect, that only the thumbs should be affected.  He would not expect physical signs on the other digits.  Further, he would expect the pain to be reproduced only under heavy load.  He would expect the symptoms to improve progressively over about six months.

71.  As to typing, Dr Ip’s view was that the plaintiff would be able to type in future, if she used splints and retrained, so as not to use her thumbs.  However, she would never be able to type at the speed she could reach before she suffered from the condition.

72.  In cross-examination, Dr Ip noted that the plaintiff’s condition appeared to have been worse when he saw her than when Dr Chu had seen her earlier.  But, he said, the condition was multifactorial and could come back with further trauma, either from typing or doing household tasks.  He accepted that the plaintiff’s condition was permanent, in the sense that she would never be able to work as she had before; he said that she would be restricted to one hour of full speed typing per day.

73.  In oral evidence, Dr Chu said that he had found the plaintiff’s condition permanent for the purposes of assessment because it was unlikely to change in the next 12 months.

74.  He was asked about Dr Ip’s view that the plaintiff could type, with retraining so as not to use the thumbs, and he took issue with this.  What he said was that the whole hand function would be impaired.  With retraining, the plaintiff could recover most of the function of typing; but she would have discomfort over the thumb when she moved the hand or the wrist.  Even if she used 8 fingers to type, she would still have to move the thumb even if it was not used to strike a key; so the thumb discomfort would still continue and there would still be significant impairment.  While the thumb tendons are separate from those of the fingers anatomically, they were not necessarily separate functionally in the sense that they would still be in action; all the tendons would be in action when the wrist was moved.  Typing needed a lot of wrist movement.  Training could only achieve so much, but as long as the thumb was there, there would be the instinct to move it.

75.  Dr Ip was recalled and he took issue with this point; in effect he insisted on the anatomical separation of the fingers and the thumb.  His view was that the proposition that even if the thumb was not used, one could not avoid using the tendons controlling it was “not based on evidence-based medicine”.

Evidence of continuing disability at trial

76.  In effect, there was no such evidence.  The last medical examination recorded is that of Dr Ip.  The last mention of it from the plaintiff comes in her 1^st witness statement dated 7 June 2005.  Further, while the plaintiff in her later witness statements speaks to the problems she had when she found work, there is nothing in the most recent statement about her condition then and she did not say anything about it in oral evidence.

Discussion

77.  Mr Shum, who appears for the defendant, argues that there is insufficient evidence to prove permanent disability, particularly because there is no up-to-date evidence either of the hand condition or the psychiatric condition.  As to the latter I agree.  It was never a major condition and had improved by March 2004, so it is probably cured by now.  As to the de Quervain’s disease, however, it seems clear even from Dr Ip’s evidence that while full recovery can be expected over time, there is always the possibility of further trauma causing recurrence.  Also it is clear that the plaintiff will never be able to type either as fast or for as long as she did before.  Dr Ip agreed that that condition is permanent.

78.  On the point of whether the use of the hand generally may be expected to cause symptoms in damaged thumb tendons, Dr Ip as a hand surgeon was more concerned with the anatomical aspects, while Dr Chan as an occupational health specialist was more concerned with the functional aspects of the condition.  I think it is a matter of common observation backed indeed by what Dr Ip said to the effect that tiny movements of the hand need large neurological activity in the brain, that it is very difficult to keep the thumb still while moving the other fingers and the wrists and forearms.  Even with splinting, as Dr Chu said, the instinct to move would still be there.

79.  That said, and as counsel pointed out, we do not know how the plaintiff typed.  The plaintiff has not given details of this, but she did say in her first witness statement that she was not a well-trained typist and had not been required to pass any typing test before she became a CLO in 1988.  The probability is that, like most untrained typists, she has evolved her own system of using two, four or six fingers as well as the thumbs for the space bar, while looking at the keyboard rather than touch-typing.  The same issues of overcoming training would not apply as they would to a trained touch-typist and it might be easier to retrain such a person not to use the thumbs.

80.  I conclude that there is a continuing disability, which will always affect the plaintiff’s ability to type and will therefore always affect her employment prospects in work that needs typing.  I accept that she would be restricted to typing for an hour a day, as Dr Ip says; but as he amplified it, that would mean an hour of full-speed typing using all digits.  It seems likely, however, particularly since the plaintiff could be seen during the trial to move her hands and thumbs while flipping paper and the like, that there is little actually wrong with her hands at the moment, so long as she does not use the thumbs too much.

81.  It is also argued that the disabilities which do remain are not a consequence of the original injuries.  The medical reports show that by the time the plaintiff went back to work her condition was static.  By the time she saw Dr Chu she had been largely relieved of typing by the use of the VR system.  Therefore it is suggested that there must have been some supervening cause for the condition found by Dr Chu in June 2004.

82.  Such medical evidence as there is for 2002 suggests that the plaintiff could manage the work she had to do, at any rate using the VR.  There is evidence from the plaintiff that because she was moved to work in a noisier environment in an open-plan office, the VR became more unreliable, and therefore she had to do a lot of typing by way of correction; and this made her hands worse again.

83.  This makes sense.  The VR system depends on microphone input and can be affected be ambient noise.  VR is unreliable at best, or else everyone would use it in preference to keyboards.  Some correction is always needed and the correction would increase if the VR were used in a noisy environment.

84.  The plaintiff said to Ms Tsang that the system was “OK” but she explained in her second witness statement that what she said was that it was “OK” for her to reach the required productivity level but she had to do more correction and the pain in her hand increased.  She went on to say that Ms Tsang had repeatedly shown discontent towards her productivity in staff reports, that this caused her great pressure and stress, and that in order to secure her gratuity and a new contract, she tried to improve productivity which involved more typing work; the pain was aggravated and she needed to take on and off sick leave afterwards.

85.  There is no live evidence to contradict this, but there is something of a question mark over it, because we only see medical evidence of further hand problems appearing briefly on the short-period sick leave certificates issued in December 2003 and January 2001, before the physiotherapy referral in February 2001.  These problems appeared after the 3-month period of assessment and after she had been told (on 3 December 2003) that her contract would not be renewed.  By then she had no reason to exert herself to try to improve productivity.  One wonders why she did not attend in the period up to November 2003 if the symptoms got worse then. 

86.  Nevertheless Dr Chu said that the disease had been static for 2 years, and therefore even if one disregards the exacerbation of symptoms complained of in the period from August to November 2003 one is still left with the diagnosis in June 2004 of a disease caused by the plaintiff’s work.

87.  By the time the plaintiff saw Dr Ip in 2005, it seems that here condition was worse.  She was by then working as a secretary.  She complains that although she did not have to type much, the pain in her hands increased when she did this work.  I take it that what happened was an exacerbation of symptoms caused by the work.  The defendant could not be held liable for that but it can be held liable for the underlying continuing disability.

88.  I conclude that the plaintiff’s remaining disabilities are a consequence of the original injuries.  They subsided, but were caused to get worse because she had to type more; and that, it appears, is what is likely to happen again if she has to type too much in the future.

Could the plaintiff have been expected to continue up to age 60?

89.  As I have indicated, the plaintiff was employed on rolling forward linked agreement terms which were, according to the circular (No.5/88), introduced so that staff could be given greater security of employment.  The age of retirement was 60 years.  However, as also indicated, there was to be no automatic rolling forward; satisfactory service was required.  Later she went on to a single agreement.  Paragraph 14 of the relevant memorandum of conditions of service referred to further employment but again this would be offered to an officer “subject to satisfactory completion of his current tour”.

90.  There was no guarantee of service up to age 60.  There is no iron rice bowl and an officer can only expect to continue if he receives a satisfactory assessment by his superiors in the course of, and especially towards the end of the tour.  It is true that the plaintiff has noted that many officers did successfully carry on until retirement age, but whether or not an officer did so depended on his satisfactory service.  Such officer must necessarily have received satisfactory assessments at the end of each tour. 

91.  I accept that if the plaintiff had continued to receive the reports from her superiors which she received up to the end of 2000 she would probably have continued in service up to retirement age.  But this would have depended on her continuing to receive the same, or pretty much the same level of assessment by her superiors as before; and this she did not.  It is the reason why she did not that is important in considering the next issue.

Was the non-renewal caused by the disabilities, so that, but for them, the plaintiff would have continued in employment?

92.  It has to be noted that the plaintiff’s claim is based on negligence and breach of contract of employment; it is not a claim for unfair dismissal or for disability discrimination.  The plaintiff has to prove causation according to the “but for” test; whether she would have continued from 2004 onwards “but for” her disabilities arising from the de Quervain’s disease.

93.  In the normal case causation is simple enough.  A plaintiff, having suffered an industrial accident or disease, will adduce medical evidence that he is no longer physically able to return to his pre-accident employment, and has to go and do something less well-paid.  So the injured steel bender has to seek re-employment as a security guard, cleaner or the like; and his damages are calculated on a multiplicand derived from the difference in income.  Here the situation is less clear. 

94.  The occupational disease reduced the plaintiff’s ability to type on a computer keyboard.  It did not affect her ability to translate.  Nor should it affect her ability to carry out the supervisory duties of a CLO I except insofar as she needed to use the VR in a quiet environment and so was out of the translation pool.  Her superiors appear to have treated her quite sympathetically after she returned to work; they allowed for this.  But later they put her back on full duties and assessed her again; and they were not satisfied with her performance.  They found her productivity sufficient if barely so; but her commitment and leadership were inadequate.

95.  It seems to me that the plaintiff has to prove that it was her medical condition which caused the superiors to recommend non-renewal.  The primary thing which the medical condition affected was necessarily her productivity as a translator, and this was affected by the amount that she could type, and had to type.

96.  If what caused the plaintiff’s non-renewal was the other factors mentioned by Mr Wong, namely lack of commitment and leadership, then I do not suppose that she can complain about her non-renewal; unless she can show that lack of commitment and leadership were themselves caused by the de Quervain’s disease, and there is no evidence of that.

97.  If, as the plaintiff seems concerned to show in her first witness statement – and indeed the case has to some extent been run on this basis – that the defendant simply decided to get rid of her because she had an occupational disease, irrespective of whether or not she could do the work, I would have thought that this is not a matter for a personal injury claim but rather for unfair dismissal or disability discrimination.

98.  As to how much the plaintiff had to type in the course of normal translation, there is only her evidence although I note that the defendant wrote to the Chief Executive of the AHNH on 5 September 2001 noting that in a medical report from the Medical Board, it was said that the plaintiff was a computer typist, and saying that she was in fact a CLO I who would not be expected to spend more than 25% of her time on typing activities.

99.  I have to say that I find it rather difficult to accept that a translator expected to produce an average of 15 pages of translation per day would necessarily spend 90% of her time typing.  Written translation is mental work, like any other form of drafting.  It is possible to do it by drafting and re-drafting, and the use of a computer lends itself to this method; and the plaintiff says that she might type 20 pages’ worth of key strokes, to produce 10 pages of translation.  But it is not the only way to draft, as anyone knows who drafts with a manual typewriter or a pen; because of the more limited correction facilities one tends to think more before putting anything on the paper.  So if the plaintiff typed 20 pages’ worth of key strokes to produce 10 pages of translation, there would be a large element of her own choice in so doing.

100.  In any event, however, it appears that by the time of the final recommendation at the end of 2003, the plaintiff’s productivity was adequate.  She herself noted in her document “Comments on Staff Report 16/11/03 to 29/1/04” dated 30 January 2004 that she had been assessed at Grade B of the benchmark ratings for CLO.

101.  It cannot therefore be said that it was the plaintiff’s productivity which caused the non-renewal.  As Mr Wong noted, if she had not reached the required productivity level, there would have been no question; but she did, and he then had to consider the other factors.  Whether, in considering these other factors the defendant acted fairly or in a discriminatory manner does not concern me here though other claims may be possible elsewhere.  For the purposes of this action I am not satisfied that the plaintiff’s disabilities caused the non-renewal of her contract.

Housing benefits

102.  The plaintiff obtained approval-in-principle to join the Home Purchase Scheme in August 2001.  Had she applied for it, she could have had an allowance which she claims at $6,500 per month, payable over 120 months, towards the mortgage repayments on a new or existing property.  The plaintiff says that she did not go ahead with the application because of her hand problems.  She could get the approval-in-principle again in the future if her hand problems recovered, because she had already reached the head of the queue for it.  In fact she said that she had had at least one other approval-in-principle, either before or after that issued in August 2001; she could not remember which.  In the bundle there are other such approvals-in-principle issued in 2002, 2003 and 2004.

103.  The claim is that if the plaintiff had not suffered from the de Quervain’s disease, and if she had gone on working for the ICAC, then at some point in the future – it is not clear when – she would have obtained the allowance.

104.  The claim is for the loss of the actual allowance, but the plaintiff never proceeded with any application for it.  If she lost anything, therefore, was not an allowance but the entitlement to an allowance, to be taken up or not as she chose some time in the future.  During her final contract she did not choose to take it up, but I can find nothing in the documents to show that she could not have done so if she had wished.  So there can be no loss during the final contract.

105.  If the plaintiff had applied for, and received the allowance, and if I had found that her disability had caused the non-renewal of her contract, then no doubt she could have been compensated for the loss of the allowance after the non-renewal.  However, on my finding of lack of causation the plaintiff cannot be compensated either for the loss of the allowance or for the loss of the entitlement.

Mitigation

106.  The plaintiff has applied for a large number of jobs since August 2004.  Eventually she found work as a secretary in 2005 but she says that she was only able to work for four months.  Since then she says that she had some freelance work with the Education and Manpower Department between March and June 2006.  She worked as a full time primary tutor in November and December 2006; and from 18 December 2006 until the date of trial she has been working as a part time tutor at a wage of $40 per hour for about 3 hours per day.

107.  It is surprising that the plaintiff does not appear to have sought work as a part-time or freelance translator, for this is her skill, which she developed over many years as a CLO.  In such work she would presumably have a choice as to how she worked and how much typing she had to do.

108.  However, the point is pretty much academic.  The effect of my finding on causation is that there is no loss after the date of cessation of employment with the ICAC, and therefore nothing to mitigate.

109.  I return to the allowable heads of claim:

PSLA

110.  The plaintiff says that this should be between $250,000 and $300,000.  The defendant in its Answer to the Revised Statement of Damages accepts a figure of $250,000 subject to proof of causation.  However counsel now argues for a figure of $150,000 by comparison with the cases of Yuen Wai Kuen v Chan Shan, HCPI 957 of 1996 and Yu Wai Leung v Mandarin Oriental Hong Kong Ltd, HCPI 1194 of 2003.

111.  I am somewhat left in the dark by the lack of evidence of the present condition of the plaintiff but I can take it that she suffered from de Quervain’s syndrome on and off between 2001 and 2005, when she saw Dr Ip.  Dr Chu’s view was that from when he saw her in 2004, it should be taken that she would suffer the disease for another year.  Both experts agreed however that there would be eventual healing.  The period is rather longer than in either of the cases cited.

112.  I have accepted that she will always have some weakness and handicap particularly when it comes to typing and that she will always have the risk of recurrence.  I think a proper figure is $250,000.

Loss of Earning Capacity

113.  In Moeliker v Reyrolle & Co. Ltd [1997] 1 WLR 132 it was said that this head of damages should be considered in two stages.  First, the court must ask if there is a substantial or real risk that the plaintiff will lose his present job at some time before the estimated end of his working life.  If there is, the court must quantify the present value of the risk of financial damage which he will suffer, having regard to the degree of risk, the time when it may materialise, and the factors, favourable and unfavourable, which will or may affect his chances of getting a job at all, or an equally well-paid job.

114.  The defendant argues that there is no real or substantial risk here.

115.  Of course, it is not necessary for an award that the plaintiff be in work at the time of trial.  At present, it appears that the plaintiff is working part-time for a pitifully low figure as a part-time tutor.  There is probably no real risk that she will lose that or be unable to get a similar job because she would not be affected, in doing it, by residual disability. 

116.  It is true that the plaintiff managed, at one stage, to find a job which paid about $15,000 per month but she was unable to keep it.  But given that she was never a secretary and had no experience as such, that is perhaps not surprising, even if her continuing disability did come into the picture.

117.  However, there is necessarily a handicap in the labour market, and I think that would apply also if the plaintiff went into free-lance translation work.  Both doctors agree that eventual cure can be expected.  However Dr Ip agrees that that there is a permanent disability and this includes a disability in typing; the plaintiff would be restricted to an hour of full-speed typing per day.  If she employed her existing translation skills in freelance translation work, she would have to type.  Though she would have control of how and for how long she typed, she would necessarily be handicapped in competition with other translators who had no difficulty in typing.

118.  I think that there is a real or substantial risk that if the plaintiff took up free-lance translation work, she would not be able to keep it.  The plaintiff argues for $500,000.  This seems be based on the argument that she could get secretarial work at $15,000 per month.  There are no figures on what she could make as a free-lance translator but I note that she applied unsuccessfully for a job as a legal translator at $20,000 per month.  Working out loss of earning capacity is necessarily largely guesswork, but it seems to me that an award based on two years’ income at that level is reasonable.  I will award $480,000.

Pre-trial loss of earnings

119.  On my finding as to causation there is no post-termination pre-trial loss and of course no post-trial loss.  The plaintiff accepts a figure of $88,190.56 for pre-termination loss of earnings and this is awarded.  There is no pre-termination loss of MPF rights; these were covered by the gratuity.

Special damages  

120.  The figure of $19,788 was ultimately agreed and is awarded.

Summary

121.  The total award is:

and there will be judgment in favour of the plaintiff for that sum.

Interest

122.  This is awarded at 2% on the general damages from the date of the writ to the date of judgment, and on special damages at half the judgment rate from 15 February 2001 to the date of judgment; and all interest thereafter will be at the judgment rate until payment.

Costs

123.  The plaintiff will have the costs of the action but in view of the amount of the award it seems to me that these must be on the District Court scale.  Because the judgment is to be handed down, and to allow for adjustment if that is made necessary as a result of any payment into court, the order is nisi.