LIN CHUI LING CHELLY v. KINGS BEAUTY HOUSE LTD

DCPI 851/2018

[2021] HKDC 686

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 851 OF 2018

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BETWEEN

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JUDGMENT

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1.  The plaintiff was injured while receiving a massage. She now claims against the defendant for damages.

2.  The defendant was absent at this trial.  The defendant had been legally represented and been contesting this claim until about early May 2019.  On 2 May 2019, it failed to appear at the Check List Review held on that day.  Since then, it did not participate in these proceedings.  It failed to nominate its orthopaedic expert despite being directed to do so earlier.  I was satisfied that notice of this trial had been duly given to the defendant, but it chose not to appear to contest the plaintiff’s claim.  I therefore proceeded with the trial in its absence.

3.  The plaintiff was legally aided but is no longer so.  She now acts in person.  She is the only witness for her case.

The facts

4.  The evidence of the plaintiff was uncontested and there is nothing before the court that suggests her evidence was otherwise than credible and reliable.  The plaintiff was also frank and direct when giving evidence.  I also find her a fair litigant.  I accept her evidence and find the following.

5.  At the time of the incident mentioned below, the plaintiff was 29 years old.  She was employed as a beautician working in Soma Spa in Hong Kong Parkview earning on average HK$18,013 a month.  The plaintiff has produced the Salary Advice issued to her by Soma Spa for the last 12 months prior to the incident showing that the above figure was her average monthly earning in that period.

6.  At about 2pm on 20 June 2017, the plaintiff attended the defendant’s salon at Room 1935, 19^th Floor, Grand Plaza One, Mongkok to receive one session of massage, having earlier purchased a promotion package over the internet and made the appointment.  She changed into a robe and lied face down on the massage table.  She waited for about 15 minutes and an employee of the salon named Lily came to serve her.

7.  Lily asked the plaintiff which part of her body she felt most tired. The plaintiff answered that her whole body did but especially the neck and the shoulders.  Lily then began.  The plaintiff’s impression was that Lily was not really skilled or professional in attitude in that her massage was not rhythmic or systematic and she kept trying to make conversation with the plaintiff into subjects that were quite personal.   About 20 minutes into the massage, Lily began to focus on her neck.  After a while and without asking or discussing with the plaintiff or giving any indication as to what she was about to do, Lily turned and placed the plaintiff’s head with her right face on the massage table, then with one sudden and swift action forcefully twisted and stretched her neck towards the left (“the Neck Twist”).  The plaintiff immediately heard a clicking sound coming from her neck and felt pain.  She yelled out. She immediately asked Lily to stop.  She then tried to slowly move her head. While she could slowly move her head, the neck felt painful.  The plaintiff then asked Lily whether it was supposed to be like that because she felt really painful.  Lily then assured her that that was how the massage was supposed to be and Lily continued until the end of the session.  After the session ended, her neck still felt painful and numb.  The plaintiff then made a complaint to the staff there.

8.  The plaintiff thought, as Lily assured her, that the numbness and pain was part of the normal process of the massage, and that with time and rest, she would feel much better.

9.  However, the pain and numbness persisted, so much so that she attended the Accident and Emergency Department of Yan Chai Hospital in small hours on 24 June 2017 and was treated at 4:27 am.  Examination showed there was tenderness over the posterior part of the neck.  X-ray of cervical spine showed no bony fracture.  She was dispensed with a strong painkiller Tramadol, given 4 days sick leave.

10.  The pain however still persisted and radiated to her left shoulder and arm with numbness.  The plaintiff then sought further medical treatments, which I will allude to in due course.

Discussion on liability

11.  The plaintiff’s case in gist is that Lily was negligent in performing the Neck Twist without due care, without proper skill or training as to safety, without adequate warning or precautions to prevent injury, or in performing it at all so as to expose the plaintiff to risk of injury.  The plaintiff’s case is that the defendant is liable (a) vicariously for Lily’s negligence as Lily was its employee or agent, and/or (b) as it has failed to properly train, instruct, warn or supervise Lily so as to reasonably ensure that she would not be negligent as aforesaid and to avoid the injury to the plaintiff.

12.  Part of the plaintiff’s pleaded case is that she relies on the maxim res ipsa loquitur.  The maxim is an evidential rule.  In the Court of Final Appeal case of Frank Yu Yu Kai v Chan Chi Keung[1], Ribeiro PJ observed:-

“41. … The classic statement of the evidential rule going back to 1865 is by Erle CJ in Scott v London and St Katherine Docks Co [(1865) 3 H & C 596 at p 601; 159 ER 665 at p 667.], as follows:

“… where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

13.  In my view, the facts in Frank Yu Yu Kai’s case are to an extent similar to those in the present case such as to make it apposite here.  In a nutshell, the plaintiff in that case suffered from prostate cancer for which a radical prostatectomy (removal of the prostate gland) was performed.  The operation lasted 6 hours in which he was anaesthetized.  Following the operation, he was found to have sustained severe nerve injury to his left arm caused by external compression on it while he was unconscious in the operating theatre under the care of the anaesthetist.  In his judgment[2], Ribeiro PJ held (§47) on those facts that:-

“In my view, adoption of the prima facie case or res ipsa loquitur approach would have been wholly apposite in the present case. A prima facie case would have arisen against the defendant if the occurrence of the injury is something which would not have happened in the ordinary course of events without someone’s negligence and if the injury falls within the sphere of the defendant’s responsibility to take due care of the plaintiff.”

14.  In the present case, even though the plaintiff was not anaesthetized and lying on an operation table as the plaintiff was in that CFA case, she was similarly also lying on a massage table and has also given herself completely to the service, management and care of Lily, her massager.  I take the view that the res ipsa loquitur approach is apposite and that a prima facie case has arisen against Lily as the occurrence of the injury was something that would not have happened in the ordinary course of a massage without Lily’s negligence and when it then fell within the sphere of Lily’s responsibility to take due care of the plaintiff.

15.  The defendant now does not appear to contest this prima facie case of negligence on the part of Lily.  I therefore hold that Lily was negligent when giving the massage.

16.  On the plaintiff’s case and evidence, which is now not contested by the defendant, I also find that Lily was the defendant’s employee or agent, and that thereby the defendant is vicariously liable for Lily’s said negligence.  I therefore find the defendant liable for the plaintiff’s claim.

Injury and treatment

17.  Continuing from the account given up to paragraph 10 above, the plaintiff then consulted her family doctor Dr Dave M S Yeung on 29 June 2017 for treatment and was given sick leave until 4 July 2017.  The plaintiff went back to work on 5 July 2017 but the neck pain became severe and she consulted Dr Lai Tat Chau Douglas in the Out-patient clinic of Tsuen Wan Adventist Hospital after work and was admitted.  MRI was done with no significant finding.  She was given medical therapy and physiotherapy.  She was diagnosed with neck sprain injury.  She was discharged on 13 July 2017 and was followed up by Dr Lai.

18.  She was also referred to a private orthopaedic specialist Dr Andrew Chan Pak Ho and saw him on 26 September 2017.  MRI was repeated the next day showing no abnormality.  She was again referred to physiotherapy. 

19.  The plaintiff had been receiving physiotherapy since 4 July 2017 until 24 October 2017 in 16 sessions.

20.  From mid October 2017 to mid 2018, the plaintiff has been receiving treatment from a chiropractor.  Since late October 2018, she has been followed up periodically by a private spine specialist Dr HT Chow.

21.  From 2 to 20 November 2017, the plaintiff worked as a part time beautician.  Since late November 2017, she was employed by Nidia Company Limited (“Nidia”), apparently until now.

Expert report by Dr Chan Wai Fu

22.  The plaintiff adduced Dr Chan’s report dated 20 October 2019.  As mentioned, the defendant did not nominate its expert and did not adduce any expert report.

23.  Dr Chan’s opinion, which I accept, can be succinctly summarized.  He noted that reduced cervical lordosis and degeneration of the cervical spine were seen, which were pre-existing conditions.  He opined that the plaintiff sustained neck soft tissue injury caused by the said incident from which maximal medical improvement had been reached and the prognosis was satisfactory.  The plaintiff was expected to have some mild residual disability that might require symptomatic treatment.  Otherwise, the plaintiff was normal and would be able to resume her pre-injury job as beautician.  He opined that the treatment she received so far was appropriate.  He endorsed the sick leave given by the treating doctors, which was from 24 June 2017 to 9 January 2018 except 13 to 25 September 2017.

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

24.  I accept the plaintiff’s testimony honest and reliable regarding the pain, numbness and discomfort she had suffered.  As mentioned, even though she was still suffering from pain, she nevertheless worked on 21 to 23 July 2017 and tried to resume work on 5 July 2017.  Also, even though at the time the sick leave given her was still current, she resumed working part time since 2 November 2017 and secured her present job and started working there since late November 2017.  I am of the view that she was not one who tried to exaggerate her pain and suffering.

25.  I accept her pain, numbness and discomfort over her neck was quite severe during the initial period when she had to seek treatment in the small hours of 24 June 2017 and also immediately after work on 5 July 2017.

26.  I take note that she had sought appropriate medical treatment and care in a timely fashion and the physiotherapist has reported steady improvement, that her condition was well enough for her to start working in early November 2017, and that the residual is really mild.  The adequate treatments should, to an extent, have alleviated her pain and discomfort.

27.  All considered, I take the view that an award of HK$80,000 for PSLA is reasonable and appropriate.

Loss of pre-trial earning

28.  In the circumstance, I would calculate her pre-trial loss by first ascertaining what she would have earned from 24 June to end of November 2017 (HK$18,013 x 5 7/30 = HK$94,268), then deducting therefrom what she earned from 13 to 25 September 2017 (HK$18,013 x 13/30 = HK$7,806), from her part time work performed from 2 to 20 November 2017, which was HK$8,800 (§40 of her witness statement) and from what she earned from Nidia in November 2017, which was HK$3,000 (Salary Advice at p 348 of the Trial Bundle).  The net amount is HK$74,662 (HK$94,268 – HK$7,806 – HK$8,800 – HK$3,000).

29.  Including the loss of MPF, the total pre-trial loss was HK$78,395 (HK$74,662 x 1.05), and I so award.

Loss of earning capacity

30.  A sum of HK$100,000 was claimed in the Revised Statement of Damages under this head.

31.  As the residual is very mild and in all the circumstances, I do not think this is an appropriate case to make an award under this head.

Special damages

32.  The plaintiff has produced all the receipts[3] for the medical expenses she had incurred and the slips proving payment.  They tally to HK$79,527.  I award that sum to her.

33.  As she received treatments at locations mostly closed to where she lived, I would award HK$2,500 as a reasonable amount for transportation expenses. I would award also HK$2,000 as a reasonable amount for tonic food.

34.  Thus, the special damages would total to HK$84,027.

Disposal

35.  I give judgment to the plaintiff against the defendant in the amount of HK$242,422 (HK$80,000 + HK$78,395 + HK$84,027) with interest on general damages of HK$80,000 at 2% per annum from the date of the service of the Writ to the date of this judgment, and interest on the pre-trial loss of HK$78,395 and special damages of HK$84,027 at half judgment rate from the date of the incident to the date of this judgment, and thereafter all sums at judgment rate until full payment.

36.  I also order the defendant to pay to the plaintiff the costs of this action, including all costs reserved, to be taxed if not agreed; and the plaintiff’s own costs incurred while she was legally aided be taxed according to the Legal Aid Regulations.

37.  As have mentioned to the plaintiff at trial, she may arrange with my clerk to have this judgment interpreted to her in Punti if she so wishes.