ZHANG QUANZHEN v. HUTCHISON HOTEL HONG KONG LTD

HCPI 741/2018

[2020] HKCFI 2721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 741 OF 2018

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J U D G M E N T

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Introduction

1.  This is a personal injury action in which the Plaintiff sues the Defendant for damages for personal injuries suffered in an accident arising out of and in the course of her employment on 23 October 2015.  The Plaintiff was a hotel room attendant in the employ of the Defendant.  She alleged that she sustained back injury during the accident when moving a two-seater sofa in a guest room and then suffered a psychiatric condition. 

2.  The Defendant puts the Plaintiff to strict proof of the happening and circumstances of the alleged accident.  It further contends that even if the accident did occur, it occurred without any negligence and/or other breaches of duty on the part of the Defendant and that the accident was caused by the Plaintiff’s contributory negligence.  The Defendant disputes the extent of the injuries suffered by the Plaintiff and quantum.  It appears that the Defendant accepts that if the accident did occur, it arose out of and in the course of employment.

Credibility of the parties’ witnesses

3.  The disputes in this case are all factual. Credibility and reliability of the witnesses’ evidence is at the heart of this case.  This is particularly so for the Plaintiff as she bears the burden of proof.  The basic test of credibility is inherent probability.  Apart from considering demeanour of the witnesses, the court makes its own assessment by testing the witnesses’ evidence against contemporaneous documents and incontrovertible or evidence not in dispute.  If a witness has been discredited over one or more matters to which he has given evidence using the above tests, that should be taken into account in considering his overall credibility.

4.  The Defendant called two factual witnesses: the human resource manager who produced the Plaintiff’s work and income records and an assistant housekeeper in charge of the room attendants, including the Plaintiff.   The assistant housekeeper testified on the work arrangement and training provided to the attendants.  Neither of the witnesses have personal knowledge of the accident.  They frankly admitted adverse suggestions favourable to the Plaintiff.  I am satisfied that they were honest and credible witnesses, but they were not helpful to the defence.

5.  The Plaintiff is the sole factual witness in support of her case.  She was born in the Mainland in 1980.  She emigrated to Hong Kong in 2008.  She received primary education.  She is married and has three children.  She had worked as a part-time waitress and part-time sales lady before joining the Defendant in September 2013 as a full-time room attendant.  She was 35 years old at the time of the accident.  She appeared to be a simple minded person.

6.  She was very assertive about her pain.  While testifying, she put her hands behind her back repeatedly as if she was massaging her lower back to ease her pain.  She also cried a couple of times. However, her demeanour was unsatisfactory.  When cross-examined on the inconsistencies between her evidence and the contemporaneous consultation notes prepared by her treating doctors, she became evasive, hesitant, and asserted that the notes were incorrect.  The notes covered a period of two years.  It may be difficult for her to remember specific events.  Her unsatisfactory demeanour could be readily discounted, but for the repeated inconsistencies with the contemporaneous medical evidence, which I shall analyse later.  Though her alleged injury is supported by her medical experts’ evidence, it is seriously contradicted by the Defendant’s medical experts’ evidence.  When her evidence is tested against the medical evidence, I do not find her a credible witness.  I even find her exaggerating.

7.  The parties produced a joint orthopaedic report and a joint psychiatric report on the Plaintiff’s condition which are admitted by consent and the attendance of the experts were dispensed with.  Despite some common grounds, the opinion of the Plaintiff’s experts and the Defendant’s experts are miles apart.  The difference is attributable to the Plaintiff’s experts basing their opinions on the assertions of pain suffered by the Plaintiff and the Defendant’s experts querying that assertion for want of objective medical evidence in support.  When the experts’ opinions are tested against the MRI report and months of contemporaneous medical consultation notes, I am driven to the conclusion that the opinions of the Defendants’ experts are more reliable.  That conclusion also to some extent adversely affects my assessment of the Plaintiff’s credibility.

The accident

8.  According to the Plaintiff, she worked independently by herself.  She has to clean and tidy up 15 guest rooms every day.  Her duties include general cleaning, vacuuming the floor, making bed, cleaning the bathroom and replacing the toiletries.  If the furniture has been moved by the guests, she has to replace it in the original position.

9.  At about 9 am on 23 October 2015, the Plaintiff was tidying up Room 1643.  She found that the position of the two sofas had been swapped. The sofas were two-seaters of five to six feet long weighing 80 pounds. There were no legs at the bottom of the sofas which just rested on their base. The room was carpeted.  She removed a teapoy near the sofas so as to make room for moving the sofas.  She bent forward grabbing the armrest of one of the sofas with both hands and dragged the sofa backwards.   Suddenly, she felt a flash pain in her lower back near the waist and she felt backwards on the floor.  She felt painful in her lower back and numb in both feet.  She could not get up and rested on the floor for some minutes.  As she had 15 rooms to tidy up, she got up notwithstanding the pain and continued her work, under-estimating her injury.  After tidying up two to three other rooms, she felt very painful.  She went to the canteen to take a rest at about 11 am.  She told a security guard about the accident.  The security guard massaged her back with some medicinal oil.  She informed her supervisor who told her to take a rest and see if her condition would improve.  After a rest, notwithstanding her pain, she continued her work.  At about 3 pm, she could not stand her pain anymore.  She could not squat or get up.  She informed her supervisor who told her to go for treatment.  She attended Hang Seng Medical Practice in Hung Hom for treatment and was given three days’ sick leave.

10.  No one else was present in the room at the time of the accident.  The Defendant has no means of challenging her evidence. In brief, the Plaintiff sprained her back when trying to pull a sofa with her back bending forward.  Her evidence is supported by her contemporaneous complaints to her supervisor and to the doctor in Hang Seng Medical Practice.  Given the state of the evidence, despite some misgiving about her credibility, I accept that she has adequately discharged the burden of proving how the accident occurred.

Liability

11.  It is common ground that it was part of the Plaintiff’s duty to replace the furniture of the room in proper position, if it had been moved by the guests.  Accordingly, the accident arose out of and in the course of her employment.  The Plaintiff claims that it was caused by the Defendant’s negligence, breach of implied terms of contract of employment, breach of common duty of care and breach of statutory duty under section 6 of the Occupational Safety and Health Ordinance and regulation 23 of the Occupational Safety and Health Regulation. 

12.  Section 6(1) of the Occupational Safety and Health Ordinance imposed on the employer a duty to ensure the safety and health at work of all his employees so far as reasonably practicable.   Section 6(2) gives examples of such duty of care, such as providing or maintaining plant and systems, safe working environment and safe system of work, etc.  Regulation 23 of the Occupational Safety and Health Regulation imposes on the employer as the person responsible for the workplace to ensure that a preliminary assessment is made of the risks to the safety and health of employees employed at the workplace.     

13.  As is very common in personal injuries actions, there is excessive pleading.  Having identified the cause of the accident, I do not think it necessary to deal with all pleaded breaches of duty.  The disputes in this case are factual.  It is sufficient to deal with the employer’s common law duty to take reasonable care of the safety of his employees, particularly in providing a safe system of work including training.  This duty is not disputed by the Defendant.  This duty of care at common law under the contract of employment and under the occupiers Liability Ordinance is no more than a duty to take reasonable care.  It is not an absolute duty.  The employer’s duty at common law and under the contract of employment is co-extensive with its duty under the Occupational Safety and Health Ordinance and Occupational Safety and Health Regulation:  see Lam Wai Chi v Project Concern Hong Kong[1] , approved by Fok JA (as he then was) in  Rashad Muhammad v Gurung Amrit Singh trading as Fewa Company & Anor[2].  In Cathay Pacific Airways Limited v Wong Sau Lai[3], Bokhary PJ said:

“24.  Of course the duty of care owed by employers to employees at common law is a single duty to take reasonable care for his employees’ safety. This is so even though it is convenient to think of the duty as involving the provision of safe co‑workers, a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and (where called for) adequate training.  As Lord Keith put it in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 at p. 165, ‘[t]he ruling principle is that an employer is bound to take reasonable care for the safety of his [employees], and all other rules or formulas must be taken subject to this principle’.”

14.  The common law duty is not an absolute one.  What amounts to reasonable care depends on the circumstances, including the nature of work, the circumstances in the workplace, the nature of risk, the qualification and experience of the employee, the training etc.   The law does not require an employer to treat its workers, in the carrying out of their everyday normal duties which do not entail any special risk or danger by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of:  see Lam Ka Lok Louis v Swire Properties Management Ltd[4].  The Plaintiff’s duties were no different from what she had to perform as a housewife looking after her own home.  They did not entail any special risk or danger.  A housewife with her experience in life should be aware of the risks inherent to her duties and should be able to take such care herself to protect herself from such risks.

15.  A safe system of work was explained in Speed v Thomas Swift & Co Ltd[5]as:

“I do not venture to suggest a definition of what is meant by system, but it includes, in my opinion, or may include according to circumstances, such matters as the physical lay‑out of the job the setting of the stage, so to speak the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet circumstances which arise. Such modifications or improvements appear to me equally to fall under the head of system.”

16.  An employer is under a personal and non-delegable duty to provide a safe system of work.  The general principle on the duty to prescribe a safe system of work may be found in the following passage in Charlesworth & Percy on Negligence, 12^th ed, para 11-67:

“It is a question of fact whether or not there is need for a system of work to be prescribed in any given circumstances. In deciding it, regard ought to be had to the nature of the work, that is whether properly it requires careful organisation and supervision, in the interests of safety of all those persons carrying it out; or it can be left by a prudent employer confidently to the care of the particular man on the spot to do it reasonably safely. There was no failure to provide a safe system where an employee was faced with a “one-off” task requiring the exercise of common sense and it was difficult to see what relevant instruction could have been given to him. But an employer is under a duty to prescribe a system of work, even where the operation is a single one, if it is necessary in the interests of safety.”

Whether that duty exists in a particular case is ultimately a question of fact depending on the circumstances of the individual case:  see Fong Yuet Ha v Success Employment Services Ltd[6].

17.  In the present case, the Plaintiff was 35 years old at the time of the accident.  She had two years’ experience working as a guest room attendant in the Defendant’s hotel.  Her duties included tidying rooms, re-arranging the furniture, vacuuming the floor and cleaning duties. She was not new to this type of task and the particular working environment. It is common ground that she had to re-arrange the sofas and replace them in the original position if they had been moved by the guests.  The Plaintiff had never complained about difficulties in performing that task or that the sofas were too heavy.  According to the assistant housekeeper, there had never been any similar accident or complaint before.

18.  There is no dispute that the room was carpeted. According to the Plaintiff, the sofas were 5 to 6 feet long and weighed about 80 pounds.  The Defendant did not challenge that evidence.  The Plaintiff said that there were no legs at the bottom of the sofas which made it difficult to slide on the carpeted floor.  According to the assistant housekeeper, there were plastic studs at the bottom of the sofa.  He said it was not heavy and he had moved them before without problem.  Having formed an unfavourable view of the Plaintiff’s credibility and having found the assistant housekeeper an honest and credible witness, I prefer the latter’s evidence.

19.  Mr Szeto, counsel for the Plaintiff, quoted the case of  O’Neill v DSG Retail Ltd[7]in which the English Court of Appeal held that there was a risk of injury for a young man of good physique to move a box weighting 15 to 20 kilogrammes without adequate training.  He argues that there was no risk assessment about moving the sofas, the Plaintiff was never warned of risks associated with moving heavy objects and was never explained about how help could be sought from colleagues.  He submits that the system of work was unsafe.

20.  Each case depends on its own fact.  In O’Neill, the employee was required to lift up and carry the box, whereas in the present case the Plaintiff was only required to pull or push the sofa.  The task was a simple one of pushing or pulling.  According to the assistant housekeeper, there were briefing sessions in the morning during which the room attendants were reminded to seek assistance from colleagues if they come across any difficulties in performing their tasks.  Though he admitted he was not the one who briefed the Plaintiff on the morning of the accident, if there was a system of briefing during which such instructions were routinely given, the Plaintiff must have been informed.  The Defendant was not in breach of providing safe working system and training.

21.  Further and more importantly, it is the assistant housekeeper’s evidence that he could move the sofa smoothly on the carpeted floor.  I note that he is a man of strong physique.  Even taking that into account, I do not consider it beyond the ability of an average woman without latent orthopaedic condition to move such a sofa.  Nor do I consider the risk is such as would require the Defendant to make specific assessment and to give warning to the employees.   The risk was low even if it existed.

22.  Further and more importantly, the risk should be apparent to the employee.  If the sofa was too heavy to pull, the employee should seek assistance from his or her colleagues or supervisor.  He should not exert such force as to break his back.  How to perform the duty could be safely left to the common sense of the employee on the job.  The Plaintiff said there were no one around whom she could ask for help.  But in answer to the court’s question, she admitted that there were two attendants working on each floor at the same time.  There was someone around whom she could have asked for help.  She just did not ask, presumably because she did not want to trouble the colleague.

23.  As was held by the Court of Appeal in Fong Yuet Ha v Success Employment Services Ltd[8], while the employer is under a duty to provide a safe system of work, whether a safe system of work is necessary for the task in hand is a question of fact in each individual case.  In that case, Kwan JA (as she then was) said:

“19.   …, it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task in hand.  The judge decided that in the circumstances of this case, the need for a system of work to be prescribed was not made out.  In paragraph 38 of the judgment quoted above, the judge referred to Winter v Cardiff Rural District Council and some of the cases in Hong Kong that applied this case.  They were all situations where the court held on the facts that the operation was simple and it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instruction or advice how the task should be done.

20.    The operation in Cheung Suk Wai v Attorney General was to put bags of refuse into refuse bins.  It was held that it was for the cleaning worker to decide on how to carry out the operation in a way most suitable to her physical ability, including the weight of the bags she should carry at one time.  In Tsang Yin Yuk v Nini Maternity Fashion Co Ltd, the shopkeeper stood on a stool to push a bag of clothing onto a shelf which was 4 feet deep.  It was held that the task of putting bags containing clothing onto the shelf was not inherently dangerous, that the decision of how this should be done had to be taken frequently, and it was reasonable and natural that the decision be left to the employee on the spot, especially in light of the instruction given not to overfill the bags.  In Chan Wai Ming v Tai Lee Café & Cake Shop, a chef tilted a heavy pot of boiled soup to pour the contents into a container, instead of using a ladle.  The court held that this was a simple task that a chef of the plaintiff’s experience should require no guidance.  Ng Kong v Golden Caterers Ltd, HCPI 206/2004, 3 February 2005, cited by the judge in the earlier parts of the judgment, was another case concerning a chef, who tried to pull a plate of fish out of a steaming oven, which he had done many times.  The plaintiff complained that a stool was not provided for his use so he had to stand tiptoe.  The judge found that a stool was provided but the plaintiff did not use it as it was handier to do without it and further observed that the plaintiff must know without specific instruction if he found he could not reach or comfortably reach a certain height required for his work and it was all a matter of common sense.

21.  The judge was correct in holding that in the circumstances of this case, there was no need for the employer to prescribe a safe system of work or give specific advice for such an everyday act that could reasonably be trusted to the common sense of the employee to carry out the task safely.  The retrieval of items on the upper shelf was simply not an inherently dangerous act, as contended by Mr Wong.  Nor is there any merit in his contention that the judge must resolve the dispute whether Madam Fong had requested for a stepladder and was turned down, for the reasons given in paras 36 and 38 of the judgment that I have quoted earlier.

(My emphasis highlighted in bold and italic prints)

24.  In conclusion, I find that the task which the Plaintiff was required to perform was a simple one.  There was no need for the Defendant to prescribe a safe system of work or give specific advice for such an everyday act that could reasonably be trusted to the employee’s common sense to carry out the task safely:  see Winter v Cardiff Rural District Council[9].  The Plaintiff knew her situation best.  It was for her to decide how to carry out her task in a way most suitable to her physical ability, including whether she could move the sofa.  If the task was beyond her physical ability, she should seek help from her colleagues or supervisor.  Even if the accident occurred because of her degenerative disc, the Defendant was not aware of her latent orthopaedic condition.  The Defendant was not in breach of the common duty of care nor was it necessary in the circumstances of this case to make allowance for any such latent condition in its employees or to prescribe any safe system of work for such simple operation which could be left to the common sense of the employee. The Defendant was not liable for the injury arising from the accident.

Contributory negligence

25.  The above conclusion is sufficient to dispose of this action.  For completeness, I shall consider the question of contributory negligence and quantum assuming that I were wrong in my finding on liability.

26.  Just as the employer is under a common law duty of care to ensure his employee is reasonably safe in working for him, the employee is also under a reciprocal duty to take care of his own safety when undertaking activities in the course of his employment with his employer.  The employer may also rely on the skill and ability of his employee in looking after his own safety.   If an employee is in breach of the duty of care owed to himself, the award he is entitled will be reduced to the extent to which his breach contributed to the injuries he suffered.  The usual matters which will be taken into account in assessing his contributory negligence include:

(1)     the level of skill and experience the employee has attained; the higher the level, the more he is liable for failing to look after his own safety;

(2)     the extent and adequacy of the training provided by the employer towards avoiding the risk;

(3)     the degree of pressure imposed upon an employee by his employer to maintain or increase output at the expense of caution; the greater the pressure, the less the employee is to blame;

(4)     the degree of familiarity the employee has with the activity which puts his own safety at risk.

27.  The Defendant had reminded the Plaintiff to seek assistance from colleagues if she found the task difficult.  The task in question was a simple one which could reasonably be trusted to her common sense to carry out the task safely.  She should have sought assistance from her colleagues.   Most probably, to avoid causing inconvenience to her colleagues, she did not seek their help.  She failed to take care of her own safety and was contributorily negligent.  I would attribute negligence to the extent of 50%.

The Plaintiff’s evidence of the injury

28.  The Plaintiff attended Hang Seng Medical Practice for treatment on the date of the accident.  She was given three days’ sick leave.  Her condition did not improve.  After expiry of her sick leave, she returned to Hang Seng Medical Practice for treatment and obtained further sick leave.  Thereafter, whenever her sick leave expired, she returned to Hang Seng Medical Practice and later to other clinics for treatment and for sick leave certificates.

29.  In early November 2015, a staff member of the Defendant telephoned her and asked if the Plaintiff could return to work.  As the doctor had said that her injury was not serious, she returned to work on 7 November 2015.  On the next day, she felt very painful and could not work.

30.  The Plaintiff’s condition did not improve. Between November 2015 and April 2016, she sought treatment from various out-patient clinics of the Hospital Authority, including S. T. F. A. Leung Kau Kui Clinic, Yau Ma Tei Jockey Club General Out Patient Clinic, Lee Kee Memorial Dispensary, Central Kowloon Health Clinic, Queen Elizabeth Hospital (“QEH”) and Hung Hom Clinic. 

31.  She also attended Dr Kou Sio Kei’s Clinic, a private orthopaedic specialist arranged by the Defendant, for treatment; and had several physiotherapy sessions at Prime Rehabilitation Services.  The medical record from Dr Kou and the physiotherapist were not produced.  On 15 April 2016, she received private MRI examination of the lumbar spine which revealed a posterior disc protrusion.   She was advised that her condition was not serious.

32.  The Plaintiff resumed work on 21 April 2016 at the request of the Defendant.  After working for three days, she felt extreme back pain and numbness with pain radiating to her right leg.  She consulted the Accident and Emergency Department (“A&ED”) of QEH for treatment on 24 April 2016.

33.  In May 2016, the Defendant requested the Plaintiff to return for light duty work at the hotel lobby and bathrooms for a few hours a day.  However, after working for two days, she had to stop work because of her back pain and she attended A&ED of QEH on 28 May 2016.

34.  In July 2016, the Plaintiff received occupational therapy treatment at the Occupational Therapy Department (“OTD”) of QEH for her back pain until October 2016.  While performing the exercises, she felt painful, dizzy, cold, numb and weak in both limbs.

35.  In December 2016, she attended Orthopaedic and Traumatology Department of QEH for treatment due to persistent back pain.  She also often felt numbness in her right leg. 

36.  In October 2017, she received a second course of physio-therapy treatment at the Physiotherapy Department of QEH until December 2017 for her back pain and numbness radiating to her right lower limb.

37.  On 30 May 2019, she started her third course of physiotherapy treatment at the Physiotherapy Department of QEH.

38.  Since May 2015, she had also received Chinese medicine treatment in various Chinese medicine clinics and bonesetter clinics, including Hong Kong Baptist University Chinese Medicine Centre cum Training and Research and the Hong Kong Buddhist Association – the University of Hong Kong Chinese Medicine Clinic cum Training and Research Centre.

39.  Since the end of 2016, the Plaintiff began to experience depressive symptoms.  She lost interest in her usual hobbies and was afraid of returning to or getting near the Hotel.  She sometimes cried without reason.  She experienced loss of appetite, poor concentration, insomnia, anxiety, frustration and loss of self-esteem.  She became easily irritated and bad-tempered.  Her emotion fluctuated and she lost interest in life and hope of recovery.  She even had thought of committing suicide.  Her relationship with her husband worsened.  Since April 2017, she received treatment under the Integrated Mental Health Programme (“IMHP”).  Her condition was diagnosed as stress reaction.  She received treatment at Central Kowloon Health Centre until December 2018.

40.  The Plaintiff’s condition never improved.  She still suffers from lower back pain leading to further conditions such as weakness in her right lower limb, numbness and slow walking speed.  She can no longer bend her waist or squat down.  When squatted, her right leg experiences numbness and makes it hard to stand up again without aid.  She can no longer twist her waist.  When the weather changes, her back will be very painful.  She can no longer take up work involving heavy labour and cannot hold heavy objects. This caused great inconvenience in her daily life.

41.  Since the beginning of 2018, the Plaintiff started to seek job which was less physically demanding.  She registered for job seeking at the Labour Department.  She had a number of interviews but all failed.  She believed it was related to her back pain.  She completed a security guard training course.  She had worked as a part-time shop assistant and eventually as a security guard.  But she cannot return to her work as a room attendant.  She cannot enjoy her activities such as hiking and jogging which she used to enjoy.  She even finds it difficult to walk or stand for a long time or twist her body.

The MRI examination

42.  The Plaintiff had an MRI examination of her lumbar spine in April 2016, about six months after the accident.  The findings of the examination are as follows:

(1)     degenerative changes at L5/S1 with narrowing of intervertebral disc space;

(2)     posterior disc protrusion at L5/S1 with associated indentation of the adjacent thecal sac;

(3)     no stenosis is noted in the central spinal canal, lateral recesses or intervertebral foramina;

(4)     the spinal cord ends normally at L1 level, no focal mass lesion or abnormal signal intensity is visualized in the spinal cord, no spinal cord compression or spinal cord oedema; and

(5)     no focal lesion or abnormal signal intensity is seen in the bone marrow, bony alignment is normal, no bony fracture or dislocation is evident, no spondylolisthesis.

43.  It is the consensus of the parties’ orthopaedic experts that there were degenerative changes in the Plaintiff’s lower spine at L5/S1 position resulting in posterior disc protrusion with associated indentation of the adjacent thecal sac.   Other than the above, the findings were all negative, indicative of a normal spinal cord.  No stenosis is noted in the central spinal canal, lateral recesses or intervertebral foramina.  There was no spinal cord compression or spinal cord oedema.  The bony alignment was normal.   There was no bony fracture or dislocation.  There was no spondylolisthesis. All these negative findings show that there is no objective evidence of any source or cause for pain.

The orthopaedic injury

44.  The Plaintiff was jointly examined by her medical expert, Dr Andrew Miu, and the Defendant’s expert, Dr Lee Po Chin on 9 April 2019.  She was able to walk unaided with a stable gait.  She was able to rise from sitting position unaided.  She could not perform tip-toe and heel walking.  She could squat and rise only with some support.  Her back alignment was normal with no muscle spasm.  There was tenderness over midline and right paraspinal muscle, from mid-lumbar to upper sacrum and right sacro-iliac joint.  There was a decrease sensation in the lower limb but the motor power was normal.

45.  Both experts agreed that the disc protrusion at L5/S1 could be part of pre-existing degenerative changes.  There are three possible scenarios of a pre-existing condition: (1) she is almost certain to have gone through life unaffected by the condition; (2) there is a strong possibility that some other event or natural progression of the condition will have brought about her present condition; and (3) symptoms suffered by the plaintiff will certainly have occurred at some stage in any event. 

46.  According to Dr Miu, the MRI only shows early features of degeneration which was very common in manual worker at her age and but for the accident it would be very likely that she would show normal work capacity till her normal retirement age.

47.  According to Dr Lee, because of the degenerative changes, the Plaintiff is more prone to develop back pain which could occur spontaneously or after a triggering injury.  The injury could be a trivial one, associated with domestic and occupational activities.  Her condition resembled most closely that of scenario (2).  Upon natural progression of the degeneration and the stress and strain to her lower back associated with her job as a room attendant, the Plaintiff would develop similar back pain within seven to eight years, even if the accident had not taken place.

48.  On treatment, both experts agreed that the treatment received by the Plaintiff was appropriate and up to standard and she had reached maximal medical improvement.

49.  On prognosis, Dr Miu said the Plaintiff’s prognosis would likely be satisfactory to fair and she would likely suffer from episodes of exacerbation of back pain.  She would require frequent symptomatic treatment in the form of medication and physiotherapy on a need-to basis.

50.  Dr Lee opined that the Plaintiff’s prognosis was good.  According to the reports from the various clinics, the Plaintiff responded well to the treatment and her pain should be mild by early 2016.  He observed the Plaintiff had multiple non-organic signs, raising doubts on the veracity of her complaints.  He noted that the Plaintiff’s complaints about numbness and weakness of both of her lower limbs were not recorded in the consultation notes from the clinics and not supported by the MRI findings.  There was no root tension sign and no radiculopathy.  The impaired sensation cannot be explained by the MRI findings and all the simulation tests were positive, raising suspicion of symptom magnification.  The residual pain and functional disturbance should be minimal or even absent.  Further treatment, apart from self-administered back and abdominal exercises, is not necessary.

51.  The Plaintiff sought treatment from six different out-patient clinics of the Hospital Authority and from two different branches of Hang Seng Medical Practice.  The medical reports from these clinics invariably reported that she had no tenderness over her back, her lower back movement was full, no lower limb radiation or weakness and no neurological deficit.  I have examined the over 200 pages of consultation notes from the various clinics.  Not only was the Plaintiff’s complaint about numbness and weakness of her lower limbs not documented, there were numerous records to the contrary, such as “no lower limb weakness/ numbness”, “no radiation” and “requested sick leave”.  On many occasions, no medication was prescribed either because it was not necessary or because the Plaintiff still had her own stock of analgesic which she had not consumed.  The drug prescribed was usually paracetamol, which is a common analgesic.  Occasionally, she was given diclofenac, a nonsteroidal anti-inflammatory drug (NSAID) together with famotidine for suppressing gastric juice secretion.  These records fully support the opinion of Dr Lee and cast doubts on Dr Miu’s.  Dr Miu’s opinion was simply based on what he was told by the Plaintiff.  It was unsupported by any objective medical evidence.  I prefer Dr Lee’s opinion.  The consultation notes also confirm Dr Lee’s suspicion of symptom magnification.

52.  The Plaintiff was given intermittent sick leave up to 6 December 2017 of over two years.  Under cross-examination, she was adamant that she never asked for sick leave impliedly suggesting that her condition was so serious that the examining doctors gave her sick leave without asking.  Then, she tune down her evidence and accepted that sometimes sick leave was given when she indicated that she could not resume work.  However, a number of consultation notes show that she specifically requested sick leave or sought sick leave extensions.  In fact, the consultation notes show that upon expiry of her sick leave she attended the same or another clinic for consultation and was given sick leave for another three to four days.  That state of affairs continued for 26 months.  If her condition was so poor, there should be objective evidence which would have enabled the consulting doctors to give her longer sick leave than three or four days each time over a period of 26 months.  Instead, the consultation notes recorded “no lower limb weakness/numbness”, “no radiation” and “requested sick leave”.  In the consultation notes of the Orthopaedic and Trauma Department of QEH dated 5 November 2018, the consulting doctor noted the Plaintiff’s request for “dateback of sick leave, claimed requested for lawyer”.   The consulting doctor also noted that she had “finished medical assessment board, now pending legal advice” and “legally settled now”.  Probably, the Plaintiff’s employee’s compensation claim was settled and she was awaiting legal advice in connection with the present common law claim.  She was seeking eleven months’ backdated sick leave when the doctors have ceased giving her sick leave for such a long time.  I cannot help feeling a sense of dishonesty in her conduct.  The overall impression given by these consultation notes is that the Plaintiff was, as Dr Lee suggested, malingering.

53.  On impairment, Dr Miu opined that the permanent impairment of the whole person for the back injury was 3% and loss of earning capacity as a result of the accident was 5%.  He considered that her present impairment was more likely to be the direct result of the accident.  Dr Lee’s assessment was 1% only in both cases.  He opined that the Plaintiff could return to her pre-accident employment and that the pre-existing degeneration contributes to 25% of her impairment.  For same reasons as I have indicated before, I prefer Dr Lee’s opinion.

54.  As for the ability to return to her pre-accident employment, the Plaintiff said she could not.  She demonstrated on three occasions that she could not even return to work on light duty.  On the other hand, the occupational therapist opined that the Plaintiff could marginally match her job demand.  

55.  Dr Miu gave an equivocal opinion that she would be able to return to her pre-accident employment but with significant impairment in her work efficiency and that she should be exempted from doing the strenuous work such as moving heavy furniture.  It is the room attendant’s regular duty to re-arrange furniture in the guest rooms.  If she was to be exempted from performing that task, it is tantamount to saying that she was not capable of returning to her pre-accident employment.  Dr Miu’s opinion was solely based on what the Plaintiff asserted.  He did not give any consideration to the evaluation of occupational therapist.  He seemed to be selective as to the evidence to form his opinion.  As I have already found the Plaintiff exaggerating, I do not consider Dr Miu’s opinion reliable.

56.  On the contrary, Dr Lee said in no uncertain terms that the Plaintiff could return to her pre-accident employment, though with less efficiency.  He had considered the consultation notes showing the Plaintiff’s progress and the objective findings by different doctors at different times.  It is worth noting that on the date of the accident and half a month later, the Plaintiff did not complain of lower limb numbness or weakness to the doctors in Hang Seng Medical Practice.  It is also interesting to note that after resuming work for three days, the Plaintiff stopped working on 21 April 2016, saying that she had extreme back pain and numbness with pain radiating to the right lower limb.   She went to QEH for treatment.  However, the medical report on that very date shows no complaint of local tenderness over her back or radiation in the lower limbs.  She even informed the doctor that her symptom had improved after physiotherapy treatment.  In May 2016, she was given light duty.  Yet she claimed after two days that she was unable to carry out light duty.  As I have already noted, the Plaintiff was exaggerating her condition.  On the totality of the evidence, I accept Dr Lee’s opinion.  I find that the Plaintiff was able to return to her pre-accident employment.

57.  In conclusion, accepting that the Plaintiff had an accident on 23 October 2015, she had a sudden flash of pain and fell on the floor.  Accepting for her benefit that the attack was a combination of her pre-existing degenerating disc and the force exerted on the disc while pulling the sofa, she suffered some paraspinal muscle pain which repeated itself occasionally.  All the time, she consistently informed her consulting doctors there was no lower limb weakness or numbness.  The consulting doctors found her able to walk unaided with normal gait and the range of her back movement was normal.  Her injury as a result of the accident could not be serious.  For three years after the accident, she had been seeking consultation and sick leave. The following comment in the medical report from S. T. A. F. Leung Kau Kui Clinic best reflects the situation:

“She was then consulted at this clinic for same symptom as inconsistent manner for continuation of treatment and sick leave, and 18 visits were performed afterwards. Multiple sick leave certificates were given as below: …”

The sick leave covered the period from 24 November 2015 to 30 March 2017.  On 5 November 2018, in preparation for this trial, she even attempted to seek backdated sick leave for eleven months from QEH. She is not an honest witness.  I am more than satisfied that she is malingering.  I accept the opinion of Dr Lee that the Plaintiff may be suffering from some mild symptoms as a result of the natural progression of her pre-existing condition which is not related to the accident.  By December 2015 or early 2016, the Plaintiff had substantially recovered.  Her symptoms were mild or residuary.  I accept Dr Lee’s opinion that at best four months’ sick leave was adequate for the injury caused as a result of the accident.  In my view that was amply generous.  The Plaintiff may occasionally suffer from some mild symptoms as a result of the progression of her condition.  She can return to her pre-accident employment.  She has to adapt to her disability by exercising care when moving heavy objects and do appropriate exercises. She has been malingering. 

Psychiatric injury

58.  The Plaintiff claimed that she developed a psychiatric condition towards the end of 2016 as a result of her persistent pain and the feeling that she could not return to her pre-accident employment. She suffered depression and had poor relation with her family.  Incidentally, her psychiatric condition developed at about the time she was referred by the Orthopaedic and Trauma Department of QEH to the Medical Assessment Board for assessment.  Starting from April 2017 she received treatment at the IMHP where she was regularly followed up until she was discharged in December 2018. 

59.  On 3 October 2019, the Plaintiff attended a joint examination by Dr Wong Yee Him and Dr Benjamin Lai instructed by the Plaintiff and the Defendant respectively.   On the basis of the medical documents and the information provided by the Plaintiff during the assessment, Dr Wong diagnosed her of suffering from major depressive disorder.  Dr Wong considered she required further psychiatric treatment for 12 months with follow up every two months and three months’ sick leave from the date of the assessment.  On the other hand, Dr Lai was of the opinion that in view of the inconsistencies between the medical documents and the Plaintiff’s complaints during the assessment, it was unreliable to make an assessment.

60.  Dr Wong’s opinion was made, as he said, “presuming that Madam Zhang has been reliable and free from exaggeration in her manifestation”.  In other words, he accepted wholesale what the Plaintiff told him during the assessment, including that she was still suffering orthopaedic condition, pains, numbness, headache, trembling, depression, insomnia, wakeful sleep, fear of loud noises, poor temper control, forgetfulness, crying, feeling troubled and worried, etc.  Dr Lai queried the reliability of the symptom presented by the Plaintiff.  They were much more serious than her psychiatric symptoms when she was discharged from the IMPH in December 2018 one year ago.  In general, psychiatric symptoms after an accident with physical injuries should improve with improvements of physical symptom.  Dr Lai suggested that the inconsistencies raised a caution that the Plaintiff might have misrepresented her psychiatric condition.  

61.  I agree with the need for caution.  The Plaintiff has demonstrated herself to be an unreliable witness.  She has been found to be malingering.  She requested backdating her sick leave by eleven months in November 2018 in preparation for this trial.  Furthermore, having regard to the readiness with which she sought medical consultation, if her psychiatric condition had deteriorated after her discharge from IMHP, she would have in no time sought consultation.  She did not.  She probably exaggerated her psychiatric symptom during the assessment. As for the findings of her current mental state examination, I accept Dr Lai’s opinion that they might be the result of the Plaintiff’s emotional responses brought by the stress of this litigation and the assessment.  I give those findings no weight.

62.  The major underlying cause of the difference between the two experts’ opinion is the importance to be attached to the IMHP information and the GAD-7 questionnaire.  The IMHP is a programme conducted by doctors, nurses and social workers.  The information in the GAD-7 questionnaire was noted by health care professionals.  The thrust of Dr Wong’s argument is that they were not psychiatrists, they overlooked the Plaintiff’s psychiatric conditions, their treatment was inadequate and they failed to give her psychiatric treatment.  That was a rather bold assertion.  He forgot that his opinion was based on the presumption that there was no exaggeration from the Plaintiff.  He then came to the conclusion that the doctors’ treatment was inadequate.  He wholly ignored the inconsistencies between the Plaintiff’s assertion at the assessment and the information from IMHP.  Even assuming that the doctors who participated in the IMHP were just general practitioners, it was a very bold assertion to suggest that these health care professionals were unable to diagnose a patient under their care as suffering from a psychiatric condition requiring psychiatric treatment when it was their very duty to provide them with integrated mental health care.  On the other hand, Dr Lai opined that had the Plaintiff exhibited any psychiatric symptoms as to call for psychiatric intervention, those doctors would have prescribed her with appropriate drugs or referred her to a psychiatrist for management, if necessary.  The fact that no psychotic drugs had been prescribed and the Plaintiff was discharged, suggesting that she had no psychotic symptoms and had substantially recovered.

63.  It is worth noting that Dr Lee (the Defendant’s orthopaedic expert) considered a psychiatric assessment not necessary in view of the improvement in the Plaintiff’s orthopaedic condition.  It does not necessarily require a psychiatrist to find if someone is exhibiting psychotic symptoms.   In obvious cases, even a layman can identify a psychiatric condition.  Certainly, so can a general practitioner or an orthopaedic specialist.  In other words, it did not appear to Dr Lee in April 2019 that the Plaintiff exhibited any psychiatric condition.   However, five months later, the Plaintiff presented herself before the psychiatric experts with what both experts considered as psychotic symptoms and which Dr Wong considered to be so serious as to call for 12 months’ psychiatric treatment and three months’ sick leave from the date of assessment.  Dr Lai considered there was a need for caution because of the inconsistencies with the medical documentations.  Dr Wong considered the inconsistencies as the treating doctors’ failure and gave full weight to what the Plaintiff asserted.  With respect to Dr Wong, he has inadvertently conducted himself as the Plaintiff’s advocate, accepting her assertions wholesale and advancing her cause.  He did not evaluate the credibility of the Plaintiff’s complaint.  He did not impress me as an independent expert assisting the court on the basis of objective evidence.  I reject his opinion in total and prefer Dr Lai’s.  I find the Plaintiff was feigning her illness.  She has failed to discharge the burden of proving her psychiatric illness.  She is not entitled to any sick leave or damages under this head.

Sick leave

64.  The Plaintiff was given intermittent sick leave up to 6 December 2017 by the doctors of various clinics.  I think it is the doctors’ practice in granting sick leave to accept at face value what their patients told them about their condition, except when the patients are obviously feigning their symptom.  That is understandable as their primary duty is to treat patients.  It is not their role to judge the truthfulness of those subjective complaints by their patients.  They have to make a decision there and then.  They do not have the luxury of time and perhaps the means to undergo the more forensic analysis to the extent required of forensic medical experts in a court of law.  Apart from having more time, facilities and information about the patient’s condition, a medical expert has the benefit of being able to form a more comprehensive picture of the patient’s condition after the event.  As an expert, he is also alive to his duty to assist the court.  It is appropriate to give more weight to the opinion of the medical expert than that of the treating doctor.  As was held by the Court of Appeal in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[10], the court is not bound by the sick leave certificates issued by the treating doctors and is free to evaluate the period in light of all the available evidence.

65.  The Plaintiff was feigning her illness.  I repeat my finding at paragraph 57 above.  I give her the benefit of Dr Lee’s opinion and allow her four months’ sick leave, which as I have indicated was already more than generous.  She is not entitled to any sick leave for her psychiatric conditions.

The Plaintiff’s average monthly earnings

66.  There is no dispute that in the period of 12 months before the accident, the Plaintiff’s average monthly income was in the sum of $15,497.07.  The Plaintiff claims that she was entitled to two free meals per working day valued at $60 per day.  In addition, she claimed that she received tips from hotel guests at the rate of $60 per day.  She said that the tips were usually left on the table or bed.   The Defendant has offered no contrary evidence.  There were 15 rooms to tidy each day.  It was not a big sum.  Though I find her exaggerating about her injury, I accept her evidence about the tips.

67.  According to the Defendant’s human resource manager, there was a general pattern of salary increment at the rate of 4% per annum.  Thus the median monthly income for assessment purpose at a salary increment of 4% is $20,295.81[11], which is rounded up to $20,296.   

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

68.  The Plaintiff suffered minor soft tissue injury to the back muscle.  She required no surgical operation and was not hospitalised.  Though she feigned she was suffering from a serious condition, on the objective evidence, she responded well to conservative treatment within a few months with analgesic and physiotherapy.  On my finding, she also feigned her psychiatric condition.  She was not prescribed any psychotic drugs.  Her condition was far better than what she claimed. 

69.  The Plaintiff claimed damages of $300,000 under this head.   She quoted the case of Thapa Goma v Tina Global (HK) Ltd and Anor[12]. In that case, the claimant sprained her back and suffered back injury while carrying a heavy metal tube.  Like the Plaintiff, she had pre-existing disc desiccation at L4/L5 and L5/S1 position.  She was asymptomatic before the accident.  It was the accident which triggered her back pain.  She was awarded $260,000 for PSLA.  The Plaintiff’s condition is very similar to the claimant’s in that case except that the judge found that the claimant had to receive long term treatment, was still suffering residual genuine back pain, and had some walking and sitting tolerance.  In the present case, the Plaintiff was feigning her condition.

70.  Next, the Plaintiff referred to the case of Wong Siu Wa v Win Sino Engineering Ltd[13] in which the claimant suffered injuries in two accidents a month apart.  In the first accident, he sprained his back while pulling a steel wire.  He did not seek medical treatment and continued to work.  In the second accident, he sprained his back again after carrying 20 coils of steel wire.  Later, at night, he felt painful and sought medical treatment.  He suffered low back pain and numbness.  MRI examination shows he had a degenerative disk at L4/L5 and L5/S1 position.  There was disc protrusion as well in L5/S1.  He was asymptomatic before the accidents.  He received physiotherapy and occupational therapy.  His prognosis was good.  The judge accepted that he suffered 5% permanent incapacity of the whole person.  For PSLA, he was awarded $50,000 for the first accident and $150,000 for the second accident.

71.  The Plaintiff also quoted the case of Chan Lok Hang v Swire Resources Ltd[14].  The claimant was a warehouse attendant.  He sprained his back while lifting a box of goods and suffered psychiatric condition as a result.  MRI examination shows that he had desiccated disc at L3/L4, L4/L5 and L5/S1 position.  There was disc protrusion as well at L3/L4 and/or L4/L5 position.  The Medical Assessment Board assessed his permanent loss of earning capacity caused by the back injury resulting in back pain and psychiatric impairment was 31%.  He was found to have suffered mild to moderate degree of pain in his lower back which substantially improved.  He was able to return to his pre-accident employment.  Though it was accepted that he suffered orthopaedic and psychiatric conditions, the employer disputed their seriousness.  There was surveillance record showing that he had no difficulties walking over flyovers and flights of stairs with normal gait unaided.  The claimant was given 743 days’ sick leave by the treating doctors, which the court reduced by half.  He was awarded $210,000 for PSLA.   This is not an appropriate comparable because the claimant had a more serious orthopaedic condition and it was accepted that he developed a psychiatric condition. 

72.  The Defendant referred to the following authorities.  In Tam Fu Yip Fip v Sincere Engineering Trading Co. Ltd[15], the claimant had a pre-existing degenerative back condition and suffered soft tissue back injury. The judge found he had exaggerated his condition and that he had fully recovered.  He was awarded $75,000 for PSLA.  The Plaintiff’s case is very similar to the claimant’s in this case.

73.  In Poon Yat Chiu v Aes Scaffold Engineering Ltd[16], the claimant fell and suffered back injuries with tenderness, superficial abrasion over the right buttock.  MRI examination shows that he had a pre-existing bulging disc at L4/L5 level.  The condition was asymptomatic.   He had low back pain and adjustment disorder.  The symptoms included disturbed sleep, depressed and anxious mood and easy irritability.  He was able to return to his pre-accident employment.  He was awarded $180,000 for PSLA.  This case is distinguishable from the Plaintiff’s, in that I am not satisfied that the Plaintiff genuinely suffered a psychiatric condition.

74.  In Sherma Phadindra v Tin Wo Engineering Co. Ltd & Anor[17], the claimant sprained his low back when trying to lift some heavy metal bars. He suffered low back pain with soft tissue injury.  He had seven months’ sick leave.  He walked with a walking stick but did not appear to place much weight on it, though he walked quite slowly.  His total impairment due to the persistent low back pain and associated leg numbness as well as loss of earning capacity were assessed to be 5%.  He was awarded $100,000 for PSLA.  Though he was given much shorter period of sick leave than the Plaintiff, he was obviously in a far worse condition than the Plaintiff who could walk unaided with a normal gait. 

75.  In Wong Ching Yau v Group Yield International Development Ltd[18], the claimant, who worked as a waitress in a restaurant, sprained her back moving a turntable.  The court found the employer not liable but nevertheless made an assessment on quantum for completeness.  She suffered soft tissue injury which was consistent with the circumstances of the accident.  An MRI scan shows pre-existing degenerative changes in her lower lumbar discs.  She complained of back pain which disturbed her sleep, numbness and weakness in her lower limbs.  Despite both her and her employer’s medical experts agreed that she had exaggerated her symptoms, the judge did not regard the exaggeration as wild or dishonest.  She tried to be gainfully employed.  She was assessed to be able to return to her pre-accident employment, though with a mild degree of decreased efficiency.  The judge assessed 18 months’ sick leave and damages in the sum of $100,000 for PSLA.  This case bears some similarities with the present case.

76.  In Rai Pabitdara v Vegetable Marketing Organisation[19], the claimant claimed to have sprained her back lifting a basket of garbage weighing 55 to 60 kilogrammes.  An MRI scan shows pre-existing degenerative changes in her lower lumbar discs.  The judge accepted the diagnose that the claimant suffered recurrent attack of pre-existing back pain.  She was able to return to her pre-accident employment.  While dismissing her claim, the judge assessed PSLA in the sum of $60,000.  This case also bears some similarities with the present case.

77.  The Plaintiff suffered soft tissue injury and had residuary back pain.  She had physiotherapy and occupational therapy treatment and was given over two years’ sick leave.  She grossly exaggerated her condition.  Discounting in total her complaint about her psychiatric condition and discounting partially her complaint about her orthopaedic condition, I would assess PSLA in the sum of $80,000.  However, after a discount of 25% attributable to her pre-existing orthopaedic condition, I award her $60,000 for PSLA.

Pre-trial loss of earnings and mandatory provident fund contribution

78.  On my finding, the Plaintiff is only entitled to four months’ sick leave.  Her pre-trial loss of earning and mandatory provident fund contribution at the rate of 5% is $71,327.69[20].

79.  During the four months of November 2015 to February 2016, the Plaintiff received $1,651.62, $404.35 and $1,344.83 totalling $3,400.80.   Deducting that sum, her pre-trial loss of earnings and mandatory contribution fund contribution is $67,926.89[21].

Future loss of earnings and mandatory provident fund contribution

80.  On my finding that the Plaintiff could return to her pre-accident employment, she suffered no future loss of earning and mandatory provident fund contribution.

Loss of earning capacity

81.  Since on my finding, the Plaintiff could have returned to her pre‑accident employment, she suffered no loss under this head.  She could have returned to her employment after four months’ sick leave by 23 February 2016.  Yet, she claimed she was unable to work on 21 April 2016 after working for three days.  Again in May 2016, she even claimed she was unable to perform light duty.  On my finding, she was malingering.  It was she who chose not to work and not that she could not work.  She suffered no loss under this head.

Special damages

82.  The Plaintiff claimed (a) medical expenses in the amount of $16,100; (b) travelling expenses in the amount of $10,000; (c) tonic food in the amount of $10,000; and (d) future physiotherapy treatment and treatment by psychiatrist and clinical psychologist in the combined sum of $105,000.

83.  I dismiss her claim for costs of treatment by psychiatrist and clinical psychologist as unfounded.  She may need physiotherapy treatment on a need-to basis which she could obtain as she had before from the Hospital Authority.  Her other claims are not particularised. I would allow a gross sum of $10,000 under this head.

Summary on quantum

84.  In summary, the Plaintiff is entitled to the following award:

(1)	PSLA :	$  60,000
(2)	Pre-trial loss of earnings:	$  67,927
(3)	Special damages:	$  10,000
		________
		$137,927

Discounting 50% for contributory negligence on the part of the Plaintiff, the award should be reduced to $68,964.  The Plaintiff has to give credit to the employee’s compensation award of $426,707.21 which she received in DCEC 2149/2017 and which is in excess of the present award.  Accordingly, her claim has to be dismissed.

Conclusion

85.  Accordingly, the Plaintiff’s claim is dismissed with costs.  The Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.