HO WAN YUNG v. A.S. WATSON & CO LTD

HCPI 264/2008

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 264 OF 2008

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

Date of Judgment : 3 June 2010

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

J U D G M E N T

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

INTRODUCTION

1. The plaintiff, Madam Ho Wan Yung, claims damages for personal injuries against the defendant, her former employer.

2. In April 2005, the plaintiff (then aged 39) was employed as a trainee in the Meat Department of the Park’N Shop Superstore in Sceneway Plaza, Lam Tin.  Her duties included cutting up meat, displaying them in the freezer, packaging, selling and moving goods, cleaning the counter, refrigerator and store room.

3. There was a large refrigerator in the cold store section of the Superstore measuring about 6 feet in height, 4 feet in width and 2.5 feet in depth.  Although it originally had an automatic defrost function, that no longer worked and so from time to time the defendant’s staff would be required to clear the ice and frost from the refrigerator manually.

4. On 17 April 2005, the plaintiff was assigned by a manager of the Meat Department, Mr Chan Yiu King, to clean the large refrigerator on the following day, in anticipation of an inspection by the defendant’s quality control officer.  Therefore, during her shift on 18 April 2005, she went to the cold store to carry out this task.  A Mr So Wing Hong, who was the Fresh Food Manager at the Superstore, arranged for the refrigerator to be unplugged and then gave the plaintiff a hammer with a handle of about 12 inches in length and showed her how to use it to knock off the accumulated ice and frost in the refrigerator.  The dislodged ice was to be collected in a plastic container and, when full, taken to a sink about 25 feet away to be emptied.

5. Mr So left after about ten minutes, leaving the plaintiff on her own to carry out his instructions.  She started defrosting the refrigerator at about 5 pm and, she says, worked under some pressure of time, since she had to complete the task in time to relieve her colleague, Ms Sze Wing Shuen, at the meat counter, when Ms Sze went off duty at 7 pm.

6. According to the plaintiff’s evidence, she continually struck the accumulated ice and frost with the hammer in order to dislodge it and finish the job in time.  On some occasions, the hammer slipped on the ice and caused her upper body and shoulder to lurch forward.

7. After her return to the meat counter, the plaintiff says she felt pain in her right (dominant) hand but, as the counter was very busy, she had no alternative but to carry on working.  At the end of her shift, she told her supervisor that she was feeling pain in her right hand from cleaning the refrigerator.  At home that night, she felt pain from her right shoulder radiating down to the fingers of her right hand.  The pain was apparently so severe that it woke the plaintiff.

8. Although she still felt pain in her right hand the next day, the plaintiff went to work as usual but was not able to wield a meat cleaver and so was assigned other duties.  She says she felt pain in the right side of her neck, her right shoulder and right hand.

9. On the morning of 20 April 2005, she went to the Accident & Emergency Department (“A&E”) of the Prince of Wales Hospital (“PWH”) to receive treatment.  There is a long history of medical treatment, which it will be necessary to return to later in this judgment.

THE ISSUES IN THE ACTION

10. The plaintiff claims that the injuries she has sustained were the result of the defendant’s negligence.  The pleaded particulars of negligence are as follows :

“(a) Failing to give any or any adequate instruction to the Plaintiff who had not been assigned with this task before on how to remove the ice and frost;

(b) Failing to warn the Plaintiff of the danger of hammering on the slippery surface of the ice;

(c) Providing an improper tool i.e. a hammer for carrying out the task;

(d) Failing to provide proper tools such as an ice pick for carrying out the task;

(e) Failing to supply adequate relief manpower to carry out the job such that the Plaintiff had to maintain the same posture and repeat the same motion continuously for not less than 2 hours;

(f) Failing to ensure the cold store where the refrigerator was placed was adequately lit;

(g) Failing to properly maintain or repair the refrigerator such that it could perform automatic defrost function; and

(h)   Failing to provide any or any safe or proper system of work.”

11. The defendant denies liability and contends that the removal of ice and frost from the refrigerator was a simple task which could have been conducted easily and safely without risk of injury had the plaintiff exercised reasonable care and attention.  The defendant maintains that, if the plaintiff suffered an injury in the circumstances alleged, this was not caused by negligence on the part of the defendant, alternatively, that any injury was caused by the plaintiff’s own negligence.

12. In addition, the defendant denies the injuries, loss and damage alleged to have been suffered by the plaintiff.  As disclosed in the medical experts’ reports prepared for the trial of this action, the plaintiff has received both orthopaedic and psychiatric treatment since the time of the defrosting of the refrigerator.

13. A number of preliminary observations are relevant to the consideration of the issues in the action.

14. It is common ground that the plaintiff was instructed to remove the ice and frost from the refrigerator in question.  However, apart from the presence of Mr So for the first 10 minutes of the process, no other person witnessed the plaintiff carrying out the defrosting task.  The only version of those events is that of the plaintiff as constituted by her oral evidence and her witness statement, together with the evidence of what she is recorded as having said to the various medical practitioners who treated her from 20 April 2008 and thereafter.  Such evidence is relevant as being a record of what must have been told to the attending doctors by the plaintiff : see Choi Ying Chi v Loyal Engineering Ltd, HCPI53/2006, unrep., 25 September 2007, §30.

15. Furthermore, the physical injuries of which the plaintiff complains were not sustained immediately or in such a way as to interrupt the task of defrosting the refrigerator.  This is not therefore the type of action in which a single observable accident or event can be said to have led to the injuries for which compensation is sought.  For this reason, the findings as to how she sustained her injuries are particularly important in assessing the case on liability and causation.

16. With these preliminary observations in mind, I shall therefore first summarise the history of the plaintiff’s medical treatment before addressing the principal issues of liability and quantum.

THE PLAINTIFF’S MEDICAL TREATMENT

17. On 20 April 2005, when the plaintiff attended at the A&E of the PWH, physical examination revealed reduced sensation to light touch and pinprick sensation over the right side of her body.  She was suspected of having suffered a stroke and was admitted to the medical ward for further management but was discharged three days later on 23 April 2005.  She was granted sick leave from 20 to 30 April 2005.  The plaintiff’s attendance was noted as “Non-Traumatic” on the A&E attendance record.

18. On 28 April 2005, the plaintiff consulted a private doctor, Dr Chang Wells, who diagnosed her as having neck and shoulder pain caused by an accident at work on 18 April 2005.  She was prescribed with painkillers and granted sick leave from 1 to 5 May 2005.

19. One 29 April 2005, the plaintiff again sought treatment from the A&E of the PWH where she was treated and discharged on the same day.  The plaintiff’s attendance was again noted as “Non-Traumatic” on the A&E attendance record.

20. On 18 May 2005, the plaintiff attended the Kwun Tong Occupational Health Clinic where physical examination revealed :

(1) tenderness of the muscle area over her right neck, right arm, right forearm and soft tissues of the extensible surface of the right-hand;

(2)  tenderness of the right shoulder on both anterior and supine aspects; and

(3) decreased range of movement of the right shoulder.

She was given medicine, painkilling gel and referred for follow-up treatment at the Orthopaedic Clinic of the PWH.  The notes of this attendance record that, by the end of the consultation on that date, the plaintiff “recalled that she had sprained her neck and right shoulder after using a hammer to hit and remove the ice in a refrigerator on 18-04-2005 at work”.

21. On 26 May 2005, an x-ray examination was conducted at the Kwun Tong Occupational Health Clinic and revealed mild marginal osteophytes over the plaintiff’s lower cervical spine, most prominent at C6/C7 level, minimally impinging the neural foramina on both sides at the corresponding level.  The plaintiff was diagnosed as having suffered a neck and right shoulder sprain during work.  Sick leave was granted from 19 May to 21 June 2005.

22. On 23 May 2005, the plaintiff started to receive outpatient treatment at the Orthopaedic Clinic of the PWH.  Examination revealed mild right-sided neck pain with right C6 radiculopathy with positive Spurling sign and carpal tunnel syndrome signs.  The plaintiff was treated with a steroid injection and started to receive physiotherapy for a course of cervical traction.  She underwent physiotherapy on a total of 41 occasions from 7 June 2005 to 6 February 2006.  The data was also referred to physiotherapy for the management of right thoracic outlet syndrome, for which she underwent 11 sessions of physiotherapy from 14 July to 28 September 2006.

23. On 2 August 2006, the plaintiff was assessed by an occupational therapist.  As her active shoulder movement was limited by exertion pain, she failed to pass the standard work rate on assessment of her work capacities.

24. On 9 July 2009, the plaintiff received a trigger point injection at the Alice Ho Miu Ling Nethersole Hospital due to continuous pain in her right shoulder.

25. From about July 2005, the plaintiff was found to have suffered depression.  She first sought treatment from Dr Chang Wells who prescribed her with antidepressant medication.  However her condition continued to deteriorate and she began to have hallucinations and suicidal thoughts.  In November 2006, the plaintiff was referred by Dr Chang Wells and a social worker to the Department of Psychiatry of the PWH for further treatment.  She was diagnosed to have moderate depressive episodes and, from July 2007, she received follow-up treatment at the Department of Psychiatry of the PWH.

26. In addition, the plaintiff received 23 sessions of counselling at the Clinical Psychology Unit of the Social Welfare Department between 10 July 2007 and July 2009.

27. On 6 February 2009, the plaintiff was diagnosed to have sustained a severe depressive episode with psychotic symptoms and was admitted to Shatin Hospital to receive psychiatric inpatient treatment.  Since she was complaining of recurrent pain in her right shoulder radiating down to her forearm, it was arranged for her to undergo physiotherapy and occupational therapy during her hospitalization.  As her mood became more stable with reduced complaints of hallucination and anxiety, she was discharged on 9 March 2009 with medication.

28. On 8 May 2009, the plaintiff was referred by the Department of Psychiatry of the PWH to receive outpatient treatment at the Multi-Disciplinary Pain Department and Clinical Psychology (Pain) Department of the Alice Ho Miu Ling Nethersole Hospital.  Her first treatments at the two respective departments took place on 9 June and 16 July 2009.

29. On 31 July 2009, the plaintiff was again admitted to Shatin hospital to receive psychiatric inpatient treatment as she was disturbed by unstable emotions.  At the same time she received inpatient physiotherapy and occupational therapy and was discharged on 18 August 2009.

30. On 30 January 2008, the plaintiff attended a medical assessment by the Employees’ Compensation (Ordinary Assessment) Board.  She was diagnosed to have :

(1)         neck and right shoulder injury resulting in neck pain;

(2)         right shoulder pain and stiffness;

(3)         right hand numbness; and

(4)         psychiatric impairment.

The permanent loss of earning capacity was assessed at 14%.

LIABILITY

31. I am satisfied that the evidence establishes that the plaintiff was removing ice from the refrigerator for the first time on 18 April 2005.  Although the then Dried Merchandise Section Manager of the Sceneway Plaza Park’N Shop Superstore, Mr Cheng Man Hung, gave evidence that the plaintiff had done this task before, he accepted in cross-examination that he had not personally witnessed the plaintiff doing so and that his assumption that she had done so before was based on the fact she had worked there for five years prior to April 2005 and therefore would likely have been assigned to do this task before.  Although I accept his evidence that he had seen the task being done previously on three or four occasions, the simple fact is he had not seen the plaintiff doing it.  I accept the plaintiff’s evidence that Mr So Wing Hong provided her with the hammer and instructed her as to how to hit the ice with it on 18 April 2005 when she started the task and that he stayed for about 10 minutes.  If she had done this before, it would have been unnecessary for Mr So to demonstrate how to do the task and unlikely he would have stayed there for any period of time while she was removing the ice.

32. It is clear that, in April 2005, the plaintiff suffered some form of injury to her right upper limb.  The question is how did she sustain that injury?

33. On the basis of the plaintiff’s witness statement, the injury was the result of a sprain caused by her striking the ice with the hammer repeatedly over a period of about two hours and, more specifically, from a few occasions on which the hammer slipped when she struck the ice with it.  On those occasions, she says her body lurched forward, which I understand to mean that her arm and upper torso were thrown or pulled forward by the force which she was required to exert to strike the ice hard enough to break it up.  She started the task at 5 pm and says she first felt pain in her right shoulder at about 6.15 pm. 

34. Her oral evidence was not, however, quite as clear as her witness statement as to how her arm was injured and, in particular, her description of where she was standing on the first occasion on which the hammer slipped from the ice was somewhat odd.

35. Furthermore, her version of events has not been consistent.  There is no obvious indication in the medical records that the plaintiff told the doctors treating her before 18 May 2005 that she had sustained any kind of injury at work or from hammering ice.  In addition, when she was examined by Professor Felice Lieh Mak, an expert psychiatrist instructed by the defendant, she told Professor Lieh Mak that after she had been hammering for about 15 to 20 minutes, she slipped and used both arms to break her fall and that she fell in a similar manner on two other occasions and felt pain about 20 minutes after the last fall.

36. Notwithstanding these inconsistencies in the evidence, I am satisfied that the plaintiff did experience a few occasions on which her right arm and upper torso lurched or were pulled forward by the force of her hammering when the hammer slipped on the ice.  I am also satisfied that this lurching or being pulled forward, together with the repeated action of hammering over a period of about two hours, was the cause of her sustaining a right shoulder injury and experiencing pain.  I accept her evidence that, before she went off duty that night, she reported feeling pain in her right hand from cleaning the refrigerator to Mr Wong Tin Yan, the supervisor of the Meat Department.  I also accept her evidence that she told Mr Wong the next day that she was feeling pain radiating down from her neck to the her right hand.

37. These being my findings as to the mechanics of the injury, it falls to consider whether the allegations of negligence against the defendant as her employer are established.  It is trite that an employer owes a non-delegable tortuous duty of care to his employee and that this duty includes a duty to provide safe equipment and a safe system of work.

38. In this respect, I consider that the dictum of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783 (applied by the Court of Appeal in Cheung Kin Kwok Alen v Lau Kam Chee [2004] 3 HKC 227) embodies the appropriate approach :

“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; … He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

39. I do not consider that the defendant failed to give proper instructions to the plaintiff on how to do the work.  It would appear from the evidence that the plaintiff completed the task, albeit it took her about two hours to do so, and the injury was not, in my judgment, the result of her being given improper instructions.  The task was relatively straightforward and the plaintiff did not encounter any difficulties due to a lack of instruction.  As for the allegation of failure to warn the plaintiff of the danger of hammering on the slippery surface of the ice, this is a risk which, in my judgment, would have been self-evident and I do not consider that the defendant was negligent in failing to warn the plaintiff of this.  Nor do I consider that there was any failure to ensure that the cold storage was properly lit.  There was a conflict in the evidence as to the adequacy of the illumination but there is no suggestion that the level of illumination played any part in the manner in which the plaintiff sustained her injuries.

40. Similarly, I do not consider there was negligence on the part of the defendant in failing to maintain the refrigerator so that the automatic defrosting function was working.  There was no evidence that this function had worked previously so as to avoid the need to defrost the refrigerator manually and I do not consider the defendant had a duty to ensure this function was in place and working.

41. As regards the level of staffing, I do not consider that the defendant was negligent in not providing relief manpower so as to avoid the need for the plaintiff to maintain the same posture and repeat the same motion continuously for about two hours.  The task of dislodging the ice from the refrigerator was one which, given the dimensions of the refrigerator, would reasonably be carried out by only one person at a time.  I do not think the size of the refrigerator was such as to make it foreseeable that an employee carrying out the manual defrosting would sustain injury by virtue of having to adopt the same posture or repeat the same motion continuously.  In any event, neither of these factors is what I have found to have been the cause of the injury.

42. This leaves the plaintiff’s allegation of negligence in providing an improper tool to carry out the task and the allegation which is the corollary of this, namely negligence in failing to provide proper tools such as an ice pick.  The hammer with which the plaintiff was provided to undertake the defrosting was not produced in evidence, but a hammer similar to the one actually used was.  The plaintiff’s description of the hammer with which she was provided was of an ordinary carpenter’s hammer with a circular head and claw.  The evidence was that Mr So turned off the electricity to the refrigerator only when first instructing the plaintiff to carry out the manual defrosting so that the ice would not have softened to any great degree during the time when she was carrying out the task and the ice would therefore still have been hard.  To strike a surface of accumulated ice and frost inside a refrigerator with a tool such as a hammer of this nature does, in my opinion, give rise to a reasonably foreseeable risk that the hammer will slip on the surface and cause the striker’s arm to be pulled forward with some force.  The amount of that force would depend on the amount of force wielded by the striker.  To dislodge accumulated ice and frost would necessarily require a considerable amount of force such that, if the hammer were to slip, the striker’s arm would be thrown forward to an extent commensurate with that force.

43. In respect of these complaints, I have come to the conclusion that there was negligence on the part of the defendant in the choice of tool for the defrosting task.  In my judgment, it was reasonably foreseeable that an employee might sustain an injury in the manner in which the plaintiff sustained her injury when using a tool with a flat striking surface such as a hammer.  This would be the case even if the employee was used to wielding a heavy implement such as a carving knife or chopper, as was the plaintiff in the present case.  A more suitable tool would, in my judgment, be an ice pick or alternatively a sharp chisel with a pointed end which could be struck with a hammer.  Either of these tools would enable the person using them to penetrate and thus loosen the ice.  The risk of a wrenching or straining injury of the type sustained by the plaintiff would accordingly be avoided or significantly diminished.

44. I accept that there was no evidence of any problem in the past in the manual defrosting of the refrigerator.  However, the mere fact that an accident which was reasonably foreseeable has not occurred does not mean that negligence is not involved when that accident occurs for the first time.

45. In conclusion on the issue of liability, therefore, it is my opinion that there was negligence on the part of the defendant in providing the plaintiff with an inappropriate tool and in failing to provide proper tools to carry out the manual defrosting task. In short, the plaintiff was provided with unsafe equipment and, as a result, an unsafe system of work.

Contributory negligence

46. As was held by McNair J in Machray v Stewarts and Lloyds Ltd [1964] 3 All ER 716 at 721E :

“… when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer’s business, and I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer’s breach in not providing him with the proper tackle, I am very slow to put any blame on him …”.

47. Given my conclusion on liability, I do not consider that there is any basis for concluding that the plaintiff was guilty of contributory negligence in respect of the accident.

Causation

48. Although I have found in favour of the plaintiff on liability, it is necessary to consider the extent to which the negligence of the defendant caused any personal injury to the plaintiff for which she is entitled to compensation.  In the present case, the issue of causation is particularly important since there is a dramatic divergence between the parties as to the nature and extent of the injuries sustained by the plaintiff in defrosting the refrigerator on 18 April 2005.

49. The plaintiff’s case as to her present complaints and disabilities is set out in the Revised Statement of Damages.  She presently complains of :

(a) recurrent right shoulder pain from the radiating down to the proximal forearm;

(b) paraesthesia, electrical-shock like symptoms and tightness at her right shoulder radiating down to the proximal forearm which disturbs her sleep;

(c) pulling tightness of the right side back on the flank from the scapular region down to the axilla;

(d) inability to make a tight fist;

(e) inability to hold on tight to an object such as a book or a pair of chopsticks;

(f) inability to carry a heavy load with her right hand, and

(g) depressed mood, poor appetite, insomnia, hallucination and suicidal attempts.

50. It is the plaintiff’s case that the physical symptoms were at their worst just after the accident.  As she suffered extreme pain in her right shoulder and right arm, she did not want to have intimate relations with her husband and would decline his requests for sex.  Furthermore, for the first 12 months after the accident, she could not do most of the housework and had to seek assistance from her husband.  This led to more arguments and conflict between the couple.  On some nights, the plaintiff was awakened by the pain and wept.  Her husband was angered by being disturbed.  Matters reached the point where, one night in October 2006, the plaintiff’s husband tried to assault her.  On the advice of a social worker, the plaintiff filed for divorce in November 2006 and a decree absolute was pronounced in March 2007.

51. In respect of this action, the plaintiff was jointly examined on 1 December 2008 by Dr Lee Po Chin, on the plaintiff’s instructions, and Dr Chun Siu Yeung, on the defendant’s instructions.  Radiological examination of the plaintiff’s cervical spine revealed osteophytes and calcification of the anterior annuli at C4-5 and C5-6.  Dr Lee diagnosed the plaintiff to have sustained an injury to the soft tissue around her shoulder and neck.  Dr Lee opined that the repeated striking movement of her right hand and arm might have caused a sprain to the muscle of the right shoulder girdle or neck.  The injury might also be compounded by an element of muscle strain fatigue due to the repeated hammering.  Dr Lee assessed the plaintiff to have suffered a 3% impairment of the whole person.

52. For his part, Dr Chun Siu Yeung’s opinion, set out in the joint report dated 19 March 2009, was that the plaintiff had made inconsistent complaints thereby causing the attending doctors to give a wide variety of diagnoses on different occasions.  These diagnoses vary significantly due to the lack of any objective signs for a definite pathological entity.  Dr Chun was of the opinion that the circumstances of the accident on 18 April 2005 could not have resulted in the symptoms complained of by the plaintiff.  He did not believe the plaintiff to have suffered any injuries as alleged by her on that date and considered that the symptoms and signs complained of by the plaintiff could not be explained on orthopaedic grounds.  Dr Chun did not believe the plaintiff suffered any permanent impairment or loss of earning capacity in relation to the alleged injury.

53. The plaintiff was also examined by a psychiatrist, Dr Chung See Yuen, on 15 December 2008.  She was diagnosed to have suffered from adjustment disorder with depressed mood.  Dr Chung confirmed that the disorder was caused by the accident and its aftermath.  Due to mental problems, he assessed the plaintiff to have suffered a 3% impairment of the whole person.

54. The defendant challenges the contention that the plaintiff suffered any form of psychiatric illness as a result of the alleged injury.  The plaintiff was examined by the defendant’s psychiatric expert, Professor Lieh Mak, whose report was dated 13 June 2009.  According to Professor Lieh Mak, the plaintiff did not and does not suffer from any psychiatric disorder as a result of the accident on 18 April 2005.  She identified various inconsistencies in relation to the description of the accident and symptoms complained of by the plaintiff as recorded in the clinical records.  She found the plaintiff lacked consistency in a number of areas and considered the pain complained of was most likely due to symptom magnification.  The inconsistencies also pointed, in her opinion, to the likelihood of symptom fabrication.  She considered that no psychiatric treatment was indicated and no sick leave on psychiatric grounds was necessary.

55. The plaintiff has been on sick leave since the date of the accident on 18 April 2005.  Sick leave certificates were produced by her in respect of the period from the date of the accident to the date of the trial.  However, the mere production of sick leave certificates does not require the court to find that the plaintiff was justified in not working during the period covered by the certificates : see per Rogers VP in Choy Wai Chung v Chun Wo Construction & Engineering Company Limited, CACV172/2004, unrep., 15 July 2005, at §9 where he said :

“ On this appeal [counsel], who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates. In my view the judge was perfectly entitled to reject these as an indication of the plaintiff’s inability to work for the reasons which she gave. It was for the judge to decide whether on the evidence of the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work. Obviously in doing so the judge must have regard to the medical evidence. Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

56. Similarly, in the present case, I am not bound by the sick leave certificates that have been produced by the plaintiff.  Instead, I propose to base my findings on causation on the medical evidence adduced.

57. It is apparent from the evidence concerning the plaintiff’s treatment after the accident that there were inconsistencies and embellishments in the description of the symptoms suffered by her.  This is consistent with my impression that the plaintiff was prone to exaggeration when she gave evidence.  However, as noted above, I accept that the plaintiff did suffer some form of sprain injury as a result of the hammer she was using to remove ice from the refrigerator having slipped a few times.  As noted above, the plaintiff’s expert, Dr Lee, considered that in those circumstances, it would be possible that some of these movements might have caused a sprain to the muscle of the right shoulder girdle neck.  This could also have been compounded by an element of muscle strain fatigue due to the repeated hammering.

58. On the other hand, Dr Lee did not consider that the symptoms of which the plaintiff complained when she attended at the A&E of the PWH on 20 April 2005 could be explained by her injury.  He considered that symptoms beyond the shoulder girdle and the base of the neck were difficult to explain by her injury, which was likely to be an injury to the soft tissue around the shoulder and neck.  It is clear that the symptoms of which the plaintiff was complaining led to some confusion on the part of the treating doctors since she was suspected of having suffered a transient stroke and admitted to the hospital at that time for that reason.

59. Dr Lee’s examination led him to make objective findings of some residual pain in the neck and right shoulder.  He did not consider that the numbness of the right upper limb fell into a definite dermatomal pattern that could be explained by any pathology of neck origin or shoulder origin.  Nor was the pattern of numbness typical of carpal tunnel syndrome, in Dr Lee’s opinion.  He found that there was tenderness around the right trapezius, right supraclavicular area, diffuse tenderness around the medial border of the scapular border to the lower ribs.  He noted that the neck movements were slightly limited and there was no neurological deficit.  There was no asymmetry of the right shoulder, no increased warmth and the colour of the skin was within normal limits.  Although the right shoulder movements were reduced, both sides were symmetrical.  Arm girth was slightly greater on the right side.  X-rays were normal.

60. It was Dr Lee’s opinion that the plaintiff should be able to return to work as a butcher based on the objective findings of the joint examination.  He expected that she would experience pain in certain movements of the right shoulder and during exertion using her upper limb.  This might impair her work efficiency.  His only qualification was that, with the rather significant subjective pain, the plaintiff might have difficulty returning to her pre-accident job.  He considered that further orthopaedic treatment was unlikely to be useful and the MRI examination could not find a cause for her numbness.  He considered that for the neck and right shoulder muscle strain or sprain, sick leave of about four to six months was normally adequate for recovery.  For his part, the defendant’s expert, Dr Chun, considered that the plaintiff was able to continue her pre-accident work.

61. Based on the evidence of the orthopaedic experts, I am prepared to accept that the plaintiff sustained a neck and right shoulder muscle strain or sprain as a result of the injury sustained on 18 April 2005 and I so find.  I am also prepared to find that she would have been entitled to sick leave of six months in order to recover from this injury.  I also find that after that period she should have been able to return to her pre-accident work with the defendant, had she so wished.

62. So far as the plaintiff’s alleged psychiatric condition is concerned, I prefer the evidence of the defendant’s expert, Professor Lieh Mak, to that of the plaintiff’s expert, Dr Chung Sze Yuen, and I am satisfied that the plaintiff has not suffered from adjustment disorder with depressed mood as diagnosed by Dr Chung.

63. Professor Lieh Mak noted that the onset of the plaintiff’s depression, as described to her by the plaintiff and confirmed in the medical records, was in mid-2006, which was in excess of the three-month criterion laid down in the Diagnostic and Statistical Manual for Mental Disorders (4^th Ed.) for adjustment disorder with depressed mood.  She did not note the symptoms complained of by the plaintiff to Dr Chung either in the records of her admission to the Shatin Hospital or during the course of her interview of the plaintiff.

64. It is noteworthy that the plaintiff’s own expert, Dr Chung, noted that the plaintiff had mild problems with her husband over family matters even before the accident.  Furthermore, the death of her mother in 2008, which may have contributed to the plaintiff’s despondent state of mind, was clearly a supervening event not connected with the accident in question.  In his initial report dated 5 January 2009, Dr Chung considered that the plaintiff’s depression was then in partial remission and that she was then suffering from residual depressive symptoms.  His view was that the impairment levels caused by the mental problems were mild and compatible with most useful functioning.  He considered she was mentally fit to return to her pre-accident job and that the period of sick leave should be decided by an orthopaedic specialist.  He felt she should be able to return to gainful employment when the sick leave for her physical condition expired and that additional sick leave from a psychiatric point of view was not required.

65. In view of Dr Chung’s opinion, I consider that the plaintiff’s refusal to resume any form of employment whatsoever plainly supports the opinion of Professor Lieh Mak that the plaintiff’s reported psychiatric symptoms are most likely exaggerated or feigned.

66. For these reasons, I accept Professor Lieh Mak’s evidence that the plaintiff did not and does not suffer from any psychiatric disorder resulting from the accident on 18 April 2005.

QUANTUM

67. In the light of my findings concerning the injury sustained by the plaintiff as a result of the accident on 18 April 2005, I now turn to consider the amount of damages to be awarded.

Pain, suffering and loss of amenities

68. At the time of the accident, the plaintiff was aged 39.  She is now aged 44.  I accept that she enjoyed good health before the accident.  Ms Eliza Yiu, counsel for the plaintiff, submitted that the award of damages under this head should be $600,000.  For his part, Mr Ashok Sakhrani, counsel for the defendant, submitted that the award should be $100,000.

69. In view of my findings as to the extent of the injuries suffered by the plaintiff as a result of the accident (see paragraphs 59 to 61 above), the following cases that were cited to me are helpful as a guide to the appropriate award of damages for pain, suffering and loss of amenities.

70. In Ho Yee Mui v Liu Hon Loong & ors, HCPI649/1999, unrep., 20 July 2000 (Seagroatt J), the plaintiff was involved in a traffic accident and suffered a bruise to her head and a fracture of her left big toe.  She was shaken up with consequential persisting back, neck and ankle pain.  Soon after the accident, she developed osteoarthritis of the knee.  The plaintiff complained of neck and back pain which the judge thought had a psychosomatic element.  The plaintiff developed depression and was diagnosed with dysthymia.  She also had symptoms suggestive of post‑traumatic stress disorder.  Seagroatt J thought there had been a significant degree of recovery.  He also found that she was suspicious of all those who sought to put her illness in the right context and that her illness was not so deep-seated and insuperable as might be considered.  He thought she would be capable of remunerative employment before long.  He awarded damages under this head of $250,000.

71. In Leung Siu Ping v Mak Sin Yee & anor, HCPI831/2000, unrep., 16 August 2002 (Master de Souza), the plaintiff suffered wounds on her forehead, a swollen right eye and inability to open her eyelids due to periorbital haematoma and a whiplash injury with residual neck pain and muscle spasm.  At the date of the hearing, she still suffered from occasional neck and shoulder pain, headaches and dizziness.  She was dismissed from her job as a secretary for reasons connected to the accident, although the medical evidence was that she was fit to resume her pre-accident work.  Damages of $200,000 were agreed under this head.

72. In Lam Kei Fung v The Incorporated Owners of Yue Tin Court & ors, DCPI1237/2005, unrep., 2 April 2008 (Mimmie Chan DJ), the plaintiff slipped on a staircase and suffered low back pain.  He was treated with physiotherapy and discharged from hospital with a small quadripod.  He also complained of lower limb weakness.  He continued physiotherapy thereafter and at trial complained of persistent low back pain with a fluctuating intensity, which increased with changes in the weather and prolonged sitting or standing.  He also suffered from a stiff back.  The Judge awarded $180,000 under this head.

73. In Kwok Sui Shum Dorothy v Hui Lam Ho, HCPI375/2001, unrep., 30 October 2002 (Jackson J), the plaintiff suffered a whiplash injury and subsequent post traumatic syndrome and depression with other sequellae as a consequence of which she lost her well-paid employment.  Jackson J concluded that the plaintiff had a degenerative neck condition which was asymptomatic before the accident and that after the accident she suffered some minor periodic neck pain which was not as severe as she suggested.  He accepted that the plaintiff’s neck pain might have contributed to insomnia, anxiety and depression, but found that her redundancy, which was wholly unrelated to the accident, had also done so.  He did not find that her psychiatric condition was caused wholly by the accident.  Had he done so he would have made an award of $400,000 under this head.  Instead he reduced that sum by 40% and awarded $240,000.

74. Finally, in Lau Tsz Ha v Chui Sang Choy & ors, HCPI489/2006, unrep., 9 March 2010 (Registrar Au-Yeung), the plaintiff sustained injuries to her right upper arm in a traffic accident resulting in a fracture with displacement of the upper end of the humerus and the right shoulder.  There was also an abrasion on the bridge of her nose and her right knee.  She had 10 sessions of physiotherapy.  The plaintiff complained about pain and weakness over her right shoulder and upper arm, which would worsen with changes in the weather or when required to apply force.  The Registrar considered the injuries fell into the lower end of the serious injury category and awarded a sum of $250,000 under this head.

75. The amount of $600,000 sought by the plaintiff under this head clearly includes an element for psychiatric illness, from which I have found she does not suffer.  On the other hand, the award of $100,000 proposed by the defendant is, in my opinion, on the low side for her injuries.  Having regard to the cases referred to above, I consider that an appropriate award under this head would be $200,000.

Pre-trial loss of earnings

76. As a trainee in the Meat Department, the plaintiff’s average monthly income was $8,770.  The plaintiff claims pre-trial loss of earnings for the entire period from the date of the accident to the date of the trial, a period of approximately 61 months.  Taking into account annual rises in her salary, the total claimed by the plaintiff under this head is $553,200. 

77. Although it was put to the plaintiff in the course of her cross-examination that, for a period of two years after her injury, she received her full salary from the defendant and she agreed with this, it was submitted in closing submissions on behalf of the defendant that pre-trial loss of earnings should be limited to a period of six months so that the amount of damages under this head would be $52,620.  This would appear to suggest that the defendant’s position is that the payment of salary in the post-accident period should be treated as a gratuitous sum for which credit is not being sought.

78. The basis of the plaintiff’s claim that her pre-trial loss of earnings should cover the entire period from the date of the accident to the date of trial is that she still suffers from mental illness.  In the Revised Statement of Damages, reliance is placed on the assessment by the Shatin Hospital on 27 February 2009 that she suffered from neurosis and 100% loss of earning capacity.  In my view, this assessment is unreliable since even Dr Chung, the plaintiff’s expert psychiatrist, did not agree with this assessment of loss of earning capacity.

79. Given my findings on the extent of the injuries sustained by the plaintiff as a result of the accident, the plaintiff’s claim for pre-trial loss of earnings for the entire period since the date of the accident cannot succeed. Instead, based on the joint report of the orthopaedic experts, I consider that pre-trial loss of earnings for the period of 6 months from the date of the accident would be appropriate.  In the circumstances, I award the sum of $52,620 under this head.

Post-trial loss of earnings

80. The plaintiff’s claim under this head was based on a multiplier of 10, the plaintiff now being aged 44.  Taking a pre-trial salary of $9,250, the claim under this head was calculated to be $1,142,400.

81. In view of my findings as to the extent of the plaintiff’s injuries caused by the accident, no award under this head is appropriate.

Loss of promotional prospect

82. The plaintiff claimed the sum of $90,000 under this head.  The basis of this claim was her evidence that the former manager of the Meat Department, Mr Lee Tai Yin, told her that he would recommend the plaintiff for promotion to the manager of the Fresh Food Department.  There is nothing in writing to corroborate this evidence but, even accepting it at face value, an indication of a recommendation for a promotion does not mean that the recommended promotion will ensue.

83. In any event, given the evidence of the orthopaedic experts that the plaintiff should have been fit to return to work after six months, it would be necessary to find some evidence that the plaintiff would have been promoted within that six‑month period if this head of damages is to be awarded against the defendant.  Since there is no such evidence, I decline to make an award under this head.

Loss of earnings of the plaintiff’s daughter

84. The plaintiff claimed damages under this head in respect of the loss of income by the daughter in having to accompany her to various hospitals and clinics in order to receive medical treatment and to do household chores during the first year after the accident.  The claim was based on a loss of average monthly income of $480 and came to a total of $5,760 for the 12 month period.

85. It was submitted on behalf of the defendant that the value of the daughter’s care should be limited to a claim for four months, giving a total claim of $1,920.  The four month period is the lower end of the band of four to six months which Dr Lee, the plaintiff’s orthopaedic expert, considered an appropriate period of sick leave for her neck and right shoulder muscle strain or sprain.

86. I accept the defendant’s submission in this regard and award the sum of $1,920 under this head.

Loss of retirement benefits

87. Under the pension scheme operated by the defendant, the plaintiff would have been entitled to a contribution from the defendant of 7.5% of the plaintiff’s basic monthly salary.  The plaintiff claimed a total of $87,705 under this head in respect of pre-trial loss and post-trial loss.

88. In the Defendant’s Answer to Revised Statement of Damages, the defendants contended, on the basis that the plaintiff’s loss of earnings were only $52,620, the loss under this head should be no more than $2,631.  That figure represents 5% of the total amount of pre-trial loss of earnings, being the standard mandatory provident fund rate.

89. Since Mr Sakhrani confirmed during closing submissions that the contractual pension benefit was 7.5% of her salary, I consider that the award under this head should be calculated on the basis of that rate rather than 5%.  This produces an award under this head of $3,946.50.

Special damages

90. In the Revised Statement of Damages, the plaintiff claimed, by way of special damages, $2,920 for past medical expenses, $8,000 for travelling expenses, $17,000 for tonic food and $2,282.20 for rehabilitation equipment.

91. On the first day of the trial, Ms Yiu revised these claims to claim medical expenses of $10,679, tonic food of $23,403.40 and rehabilitation equipment of $2,332.20.  Taking these figures together with the claimed amounts of $8,000 in respect of past travelling expenses and $8,000 in respect of future travelling expenses, the total claim for special damages amounted to $52,414.60.

92. The schedule of medical expenses produced by the plaintiff at the beginning of the trial indicates that many of the individual items of expense were incurred beyond the six month period after which the orthopaedic experts consider the plaintiff was fit to return to work.  A large part of the claimed amount is therefore not properly recoverable by reason of the plaintiff’s injuries.  This comment must similarly apply to the pre-trial travelling expenses claimed.

93. The rehabilitation equipment claimed by the plaintiff consisted of various items purchased on and after 3 January 2009 and the tonic food was purchased from 3 February 2007 and thereafter.  Again, these items were acquired long after the period of sick leave considered appropriate by the orthopaedic experts.

94. In view of the element of exaggeration which I consider is inherent in the plaintiff’s claim and my acceptance of the evidence of Professor Lieh Mak that the plaintiff has not suffered a psychiatric illness, the plaintiff’s figure for special damages falls to be reduced substantially.  The defendant was prepared to agree to a figure of $5,000 by way of special damages.  I am prepared to increase this amount to the sum of $10,000.

Future medical expenses

95. In view of my findings as to the extent of the plaintiff’s injuries sustained in the accident, no award under this head is appropriate since all the future medical expenses relate to treatment by a psychiatrist and psychologist.

Miscellaneous

96. Although the defendant made submissions as to whether an award in respect of loss of earning capacity was appropriate, no claim under that head of damages was made on behalf of the plaintiff.  In the circumstances, it is not necessary to consider this.

SUMMARY OF MONETARY AWARD

97. In summary, the award I make in favour of the plaintiff under the various heads of damages claimed is as follows :

(1)	PSLA	$200,000
(2)	Pre-trial loss of earnings	$52,620
(3)	Loss of earnings of plaintiff’s daughter	$1,920
(4)	Loss of retirement benefits	$3,946.50
(5)	Special damages	$10,000
	Sub-total (subject to ECC payment—see below):	$268,486.50

Interest

98. There will be an award of interest on damages for PSLA at 2% from the date of the writ (being 10 April 2008) to the date of judgment.

99. As for the damages for pre-trial loss of earnings (excluding the provident fund element) and other special damages, interest will be awarded on those damages at half the judgment rate from the date of the accident until the date of judgment.

Credit for employees’ compensation award

100. It was common ground that the plaintiff should give credit for employees’ compensation received by her in the sum of $366,510.39.

Disposition and costs

101. Although I have found in favour of the plaintiff on the issue of liability, since the total amount of damages I have awarded, even including the relevant elements of interest, is less than the sum of employees’ compensation for which credit must be given, it follows that the action must be dismissed.

COSTS

102. I make an order nisi that the plaintiff pay the defendant’s costs of the action, to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.