WONG POU YIN KENNIE v. MAXIM'S CATERERS LTD

HCPI 753/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 753 OF 2009

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J U D G M E N T

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INTRODUCTION

1. This is an action for damages for personal injuries suffered by the plaintiff in an accident arising out of and in the course of her employment with the defendant.  The plaintiff received her employees’ compensation and is now claiming common law damages. 

Background

2. The plaintiff was 35 years old at the time of the accident.  She is now 41.  She had previously worked with the defendant and rejoined the defendant on 25 December 1995 as a cashier in the defendant’s fast food restaurant in Hennessy Road.

3. About 2:35 pm on 12 December 2006, as the plaintiff was returning to the cashier counter after changing the menu on the display board for the afternoon tea session, she was pushed with great force by  a customer who was hurrying on his way out of the restaurant.  The plaintiff’s right shoulder was injured.  Just one day prior to the accident, she had consulted a doctor for neck pain caused by degenerative changes in her cervical spine, cervical canal stenosis and a prolapsed cervical disc at C5/6 position, for which she was prescribed analgesic.  In the year that followed, the plaintiff received continued treatment for her neck pain and shoulder pain, including surgical excision of the prolapsed disc.  She was given physiotherapy and about a year’s sick leave.  Soon after she resumed work with the defendant at another fast food restaurant in Sheung Wan in December 2007, she developed a psychiatric condition.  She was admitted to hospital on a number of occasions for psychiatric symptoms including a suicidal attempt.  She was last discharged from hospital in November 2008. She stopped working since April 2008 and  is now living on comprehensive social security assistance.

4. The plaintiff’s case is that the floor in the restaurant was wet and slippery and the accident was caused by and/or contributed to by the defendant’s negligence or breach of statutory duty in:

(1)  failing adequately or at all to clean or clear the wet floor;

(2)  failing adequately or at all to cover the wet floor or otherwise or make it safe to walk in the vicinity thereof;

(3)  causing or permitting the floor to be wet or remaining to be wet;

(4)  failing by means of barriers or otherwise to prevent the plaintiff from walking in the vicinity of the wet floor;

(5)  failing by means of barriers or otherwise to prevent the customer from walking in the vicinity of the wet floor;

(6)  exposing the plaintiff to a danger or trap or slipping hazard and a foreseeable risk of injury; and

(7)  failing to discharge the common duty of care to see that the plaintiff was safe to work in the working place.

5. The defendant’s defences are:

(1)  the accident occurred without any negligence or default on the part of the defendant;

(2)  at the time of the accident, the floor was dry and the defendant had in place a system for maintaining the cleanliness and dryness of the floor;

(3)  there was no absolute duty at law on the part of the defendant to warrant the safety of the plaintiff;

(4)  there was an implied duty on the part of the plaintiff to take reasonable care in the performance of her work;

(5)  there was no causal connection between the state of the floor and the accident;

(6)  the accident was caused solely by the negligence of the customer; and

(7)  contributory negligence on the part of the plaintiff.

6. The accident and the injuries suffered by the plaintiff are not in dispute.  The dispute between the parties is whether the accident was caused by the customer who slipped and almost fell as a result of the  wet and slippery floor, whether the plaintiff’s pre-existing orthopaedic condition was aggravated by the accident and whether her psychiatric condition was caused by the accident.  It is accepted by Mr Cheung, counsel for the plaintiff, that if the plaintiff cannot prove that the accident was caused by the wet and slippery floor, her claim must fail.  The disputes are solely questions of fact.  The burden, however, is on the plaintiff to prove that the accident happened in the way she alleged. 

7. The plaintiff gave evidence.  The defendant called the supervising deputy manager in charge of the fast food restaurant,  Sze Wing Hung (“Sze”), to give evidence.  The plaintiff’s case stands or falls on her credibility.  Unfortunately for the plaintiff, for reasons as explained in my analysis of the evidence, I find her an exaggerating witness and do not accept her evidence.  I accept Sze’s evidence.

LIABILITY

The place where the accident occurred

8. The cashier counter where the plaintiff worked was located at a recess area near the main entrance.  Between the cashier counter and the entrance was a board displaying the menu.  A customer reads the menu as he enters the restaurant and then reaches the cashier counter where he orders his food.  During the busy hours, customers gather near the display board to read the menu, while other customers queue in front of the cashier counter alongside the display board.  The accident occurred in front of the display board.  According to the plaintiff, at the material time the floor there was wet and slippery.  The defendant denied.

The accident

9. According to the plaintiff, at the material time, she went to the display board to change the menu for afternoon tea session as the lunch session had finished.  There were more than twenty customers near the display board.  Many customers came for afternoon tea as it was cheaper, while others came to place orders for Christmas take away food.  Just as the plaintiff was turning around after changing the menu, a customer slipped and hit her right shoulder.  She was driven around with one hand resting on the display board for support.  The customer shouted “what’s wrong, the floor is so slippery”, appending his remark with some foul language.  The customer looked at her and, seeing that she did not suffer any injury, left.  Sze was at the cashier counter collecting the cash receipts for the lunch session.  Another cashier Lui Hiu Pan (“Lui”), was working at the cashier counter.  The plaintiff told them that she had been hit and almost fell but the customer did not care to apologise.  Sze and Lui smiled.  Lui remarked, “was it really so serious?”  Sze did not ask if she need to see a doctor and left after collecting the cash. The plaintiff felt very painful at her shoulder but continued to work until she went off duty that afternoon.

10. The plaintiff said that the floor was wet and slippery because of the following reasons.  Firstly, it was around that time that the defendant’s kitchen staff and bar staff came out to the display board to read the menu and order their lunch.  They wore working boots which were wet and oily.  Secondly, the defendant’s delivery workers carrying food materials such as fish, shrimps, chickens, ducks and vegetables walked over the area on their way to the kitchen to make deliveries.  Their boots and the food made the floor wet.  Thirdly, workers from the nearby market a block away came for afternoon tea wearing boots tainted with water.  Fourthly, customers who had just finished their marketing carrying watery bags made the floor wet.  Fifthly, the cool air from the air conditioning with the warm air coming from outside the restaurant caused water droplets to condense on the floor.  Sixthly, staff mopping the floor after the lunch session made the floor wet but contrary to the defendant’s standing instruction no staff followed up by mopping with a dry mop.

11. The plaintiff said that the defendant had a movable sign warning of slippery floor at the passageway opposite the cashier counter.  Because of the crowded condition, the sign was removed to a space near the cashier counter where customers could not see.

12. The plaintiff said that a few days before the accident, she almost fell because of the wet and slippery floor and she complained  to Sze.

13. Sze was posted to work at the Hennessy Road branch on  1 December 2006.  He contradicted the plaintiff’s evidence entirely.  He was not aware of the accident on 12 December 2006 and denied that the plaintiff had informed him about the accident on that day.  He only heard about it for the first time at about 1 pm on the following day when the plaintiff asked for time off to see a doctor because she had been hit by a customer the day before.  At the time, the plaintiff did not complain that the accident was caused by the wet and slippery floor.  It was only on the 14 December 2006 when the plaintiff informed a staff of the restaurant by telephoned that she had an accident while at work on 12 December 2006. 

14. Under cross-examination, Mr Cheung suggested to Sze that he denied having been informed on 12 December 2006 of the accident in order to cover up his failure to report the accident.  Sze disagreed.  The thrust of Mr Cheung’s criticism is that in Sze’s statement of the accident prepared on 11 April 2007, Sze did not mention about the plaintiff requesting for medical consultation on 13 December 2006.  Sze explained that in the statement he was concerned with explaining why no report was made about the accident while the plaintiff’s request for time off to see a doctor was another issue and the plaintiff used to make such requests.   I do not think much significance could be attached to that omission because the purpose of Sze’s statement was to explain why no report was made of the accident in connection with employees’ compensation claim.  He was not hiding the fact that the question of employees’ compensation had been raised by the plaintiff during the telephone call  on 14 December 2006.  His explanation had always been that he was unaware of the accident on 12 December 2006.  Indeed, even according to the plaintiff’s own evidence, she made no complaint to Sze or Lui that she suffered injury or serious pain as a result of the accident on that day.  In her accident report dated 16 April 2007, while repeating that Sze and Lui witnessed the accident and smiled, the plaintiff did not say she had complain to Sze that she was hurt or felt very painful.  She said in that report that it was on the afternoon of the following day that she felt very painful because of which she asked for leave to see a doctor.  I do not think Sze could be criticised for not mentioning in the statement of the accident that the plaintiff went to see the doctor on 13 December 2006; nor could any dishonesty be imputed to Sze for the omission.  It was a trivial matter blown out of all proportion by counsel.  I have no reason to doubt Sze’s honesty. 

15. Sze refuted the plaintiff’s evidence about the causes of the wet and slippery condition of the floor.  He admitted that management had issued guideline to mop the floor after the lunch session. However, he said that guideline was for guidance only.  He had discussion with the area manager and agreed to depart from the guideline because the afternoon tea session commenced immediately after the lunch session and there was too much customer traffic to permit mopping to be done and precisely to avoid causing the floor wet and slippery.  The floor was swept instead of mopped.  Mr Cheung criticised the defendant for not calling the area manager to corroborate Sze’s evidence.  I think the alternative arrangement makes sense and Sze’s evidence credible.

16. Sze also refuted the plaintiff’s evidence that delivery workers made delivery via the front entrance.  His evidence is that there was a bus stop outside the restaurant which made it inconvenient for lorries to be parked immediately outside the restaurant whereas there were parking space available outside the rear entrance.  It would be more convenient for delivery workers to make their deliveries via the rear entrance. Furthermore, he said that wet foodstuff would be delivered only in the morning and not during lunch time.  He admitted, though, that workers were required to have the receipts for their deliveries acknowledged at the cashier counter.  On his evidence, it is unlikely that the delivery workers would have caused the floor near the cashier counter to be wet.  Sze disagreed that there were water droplets created by the air conditioning.  December is not a humid month. Water condensation was unlikely.

17. Sze did not dispute that customers from the market nearby might cause the floor to be wet.  He did not dispute that kitchen and bar staff had to collect chits from the cashier counter in order to get their meal and they might cause the floor to be wet.  But his evidence was that the floor was not wet.  It is a matter of degree how wet such traffic could cause.  There is no independent evidence.  The plaintiff said the floor was wet.  Sze said it was not.

18. Sze disagreed that the floor was wet at the material time.   His evidence is based on his personal observation.  It was his routine to check the food menu three or four minutes after the change.  Hence he knew the floor was not wet.  Sze also denied that the plaintiff had complained to him about the wet floor the day before.  Mr Cheung doubted the credibility of Sze’s evidence as this important piece of evidence was not contained in his witness statement.

19. Mr Cheung draws my attention to the presence of a mat near the cashier counter and suggests that that evidence supports the plaintiff’s case that the floor was wet.  According to Sze, the carpet was placed there to remove the sand and dust from the customers’ shoes, though he agreed that it could also serve the purpose of preventing slippery.

20. Mr Cheung also relied on the defendant’s failing to call Lui and its area manager to support the evidence of Sze.  He refers to Li Sau Keung v Maxcredit Engineering Ltd & Another [2004] 1 HKC 434 and submits that where a party without explanation fails to call a witness who has served a witness statement, the court may draw an adverse inference against that party.  Both Lui and the area manager had given witness statements.  There is nothing in Lui’s witness statements which is not covered by Sze’s evidence. Lui did not dispute that the plaintiff had told her that she had been hit by a customer, but denied that the plaintiff had told her that the customer slid towards her or had used any used foul language.  Lui also said that she did not notice if the floor was wet at the material time though usually it was not.  I shall, of course, not take into account any of Lui’s evidence which is unfavourable to the plaintiff.  There is one aspect in the area manager’s evidence which is not covered by Sze’s evidence, ie the kitchen and bar staff had meal between 11 am and 12:30 pm and would not have the need to go to the cashier counter at 2:30 pm.  I shall simply not take that evidence into account.  That a party may be able to call a number of witnesses to testify on a certain factual issue does not necessarily oblige him to call each and everyone of them under the sanction that adverse inference will be drawn against him for his failure to do so.  The court does not as a matter of course draw adverse inference against a party for not calling a witness.  The inference to be drawn against a party depends on all the circumstances, in particular on what the witness has said in his witness statement, the explanation for not calling the witness or the lack of explanation.  No explanation has been given by Mr Chan, counsel for the defendant, for not calling the two witnesses.  But, nothing of what Lui and the area manager said in their witness statements which is favourable to the plaintiff is disputed by the defendant.   Obviously, their evidence is not necessary.  On the face of Lui’s and the area manager’s witness statements, I am unable to draw any adverse inference against the defendant or Sze for not calling them to give evidence. 

21. In her first witness statement, the plaintiff explained what caused the floor to be wet and said that after changing the menu, she saw a male customer almost falling onto the ground and then the customer pushed his body to her injuring her right shoulder.  In her first supplemental witness statement in reply to the witness statement of Sze and the area manager, she supplemented her evidence about the cause  of the wet floor.  In her second supplemental witness statement dated  14 April 2011, she added much colour to how the accident occurred.  She said that the customer slid forward, collided with her causing serious injury to her right shoulder, the customer complained about the slippery floor in foul language, looked at her and left after seeing that she did not fall.  She also added a small episode of what happened when she returned to the cashier counter.  She saw Sze and Lui, told them that she had been hit by a male customer that she almost fell to the ground, the customer did not apologise and left, and that Sze and Lui just smiled and ignored her.  She bore the pain and continued to work that day.  On the afternoon  of the following day, she felt very painful and asked for time off to see  a doctor. 

22. In gist, Sze’s evidence, which I shall not repeat, is that he was not aware of the accident until the afternoon of 13 December 2006 when the plaintiff asked for time off to see a doctor; but even then the plaintiff did not complain that the accident was caused by a sliding customer or the slippery floor.  By way of contrast, the plaintiff said she had complained about the slippery floor to Sze a few days before the accident.  If the plaintiff was so conscientious as to warn the deputy manager of the slippery floor, one wonders why she did not make a complaint when an accident caused by the slippery floor had actually occurred and caused her serious injury.

23. The plaintiff consulted Dr Joseph Lam and Dr Yeung on  13 December 2006.  Dr Yeung was probably the defendant’s nominated doctor.  Dr Yeung referred the plaintiff to see an orthopaedic surgeon,  Dr Cheng whom the plaintiff consulted on 15 December 2006.  The plaintiff then consulted Dr Roderick Lo, a psychiatrist, on 28 March 2007.  She filed her employees’ compensation claim in DCEC 895 of 2008 on 26 July 2008.  She attended a joint orthopaedic examination by Dr Kong and Dr Lee on 9 November 2009 and attended a joint psychiatric examination by Dr Ho and Dr Chung on 3 August 2010.  During all those medical consultation, she told the doctors that she had been hit by a customer but mentioned nothing about the accident being caused by the wet and slippery floor.  Mr Chan queries why the plaintiff did not mention the wet and slippery floor and suggests that the plaintiff was not truthful.  I dismiss that suggestion.  The cause of the accident was not the focal point of her medical consultation.  She was more concerned about the injury to her shoulder than the cause of the accident.

24. Mr Chan refers to the plaintiff’s application for employees’ compensation in DCEC 895 of 2008, in which the plaintiff pleaded that the accident occurred “while the applicant was in the course of employment with the respondent and was changing food menu on the display board, a customer crashed her right shoulder”.  Mr Chan argues that if the accident was indeed caused by the wet and slippery floor, the plaintiff would have so pleaded.  I respectfully disagree.  Employees’ compensation is a no fault liability claim.  The issue in an employees’ compensation claim is whether an accident occurred in the course of and arising out of employment.  How the accident was caused is irrelevant.  The plea of the plaintiff is almost standard.  Usually such actions are settled without enquiries as to the cause of accident.

25. There is perhaps more force in Mr Chan’s argument about the plaintiff’s report of the accident made on 16 April 2007. There, she stated that after changing the menu and when she turned around intending to go back to the cashier counter, she was hit by a male customer who was in a hurry.  She gave further details that she was hit on her right shoulder, the customer took a look at her and hurried away, that she returned to the cashier counter and told her colleague that the man had  no courtesy and that she went to see a doctor on 13 December 2006.  That was a statement written to the defendant to report the accident.  At the time, the plaintiff might only have in mind an employees’ compensation claim and not necessarily a common law damages claim.  However, it is surprising that she took the pains to report all those minor events including minute details such as the customer hurried away without the courtesy of making an apology but said nothing about the cause of the accident or the wet and slippery floor.  She also mentioned nothing about having complained about the wet and slippery floor to Sze a few days before the accident.  If what she said is true, she would have put the  cause of the accident forefront in her mind, reported her earlier complaint and reiterated that the accident actually occurred due to the wet and slippery floor.

26. The plaintiff appears to be building up her case as time progressed.  She started in her report of the accident dated 16 April 2007 with a scenario of a hurrying customer who knocked on her right shoulder and left in quick paces (給一位很衝忙的男客人迎面而來撞到右肩膊， 而這位男客人只望了我一眼就急急腳走了). There was no mention of a wet and slippery floor.  There was no mention that the customer was falling or about to fall.  It was just an accident caused by someone in  a hurry.  In her supplemental witness statements filed for the purpose of this action, she first painted the scenario of a customer who almost fell and then pushed her which she built into a scenario of a very rough and rude customer who slid forward (not who almost fell) and collided with her, accusing the floor was wet and slippery in foul language and left without an apology.  She then noticed that the floor was wet and slippery after hearing the complaint.

27. The plaintiff also departed from her pleading. In the statement of claim, she pleaded that the accident was caused by the slippery floor and that the floor was slippery because it had just been mopped by the staff at around 2 pm before the afternoon tea session commenced.  In her witness statements, she attributed a series of reasons for the floor being slippery, such as the wet boots of the delivery workers, the kitchen staff and bar staff, as well as customers from the nearby market.  Then in her second supplemental witness statement dated  14 April 2011, she said that she did not know why the floor was wet and slippery at the time of the accident. This demonstrates that the plaintiff had not made up her mind what her case was when she filed the statement of claim and was making up her case as the litigation progressed.

28. Not only that, the plaintiff changed her evidence as to how the injury was caused.  In her witness statements, the plaintiff said that she was hit on her shoulder and suffered injury.  No mention was made of twisting of her neck.  However, in evidence, she said that when she was collided upon by the male customer, she was hit to turn around so that she had to push onto the display board with her hand and her neck was twisted to one side.  The twisting of her neck was never mentioned in any of her witness statements or the medical reports of the many doctors she consulted.  Under cross-examination, she said she had told Dr Yeung that her neck was twisted to one side during the accident and had told the two joint orthopaedic experts that the accident caused her to turn around and sprain her neck.  Her allegation is not corroborated by the report of  Dr Yeung or the joint orthopaedic expert report.  While it is possible that Dr Yeung, not being an orthopaedist, might not have noted down such minute details relating to what might appear to be a trivial element, the joint orthopaedic experts were specially appointed to report on the plaintiff’s injury and must have noted that down as spraining of the  neck is highly relevant to her injury and to her shoulder pain.  I think the plaintiff was exaggerating and building up her case.

29. On the other hand, according to Sze, he was not aware of the accident and there was no complaint or mention of a wet and slippery floor.  Even the plaintiff’s own witness statements and her evidence suggested that Sze and Lui did not actually witness the accident.  Her report of the accident made no mention of the cause of the accident.  It supports Sze’s evidence to the extent that he did not know that the plaintiff suffered injury on 12 December 2006 because, though feeling painful, the plaintiff never complained about the pain or injury until the afternoon of 13 December 2006 when she showed Lui her shoulder and asked Sze for time off to see a doctor. This in turn supports Sze’s evidence that he was unaware of the accident, that the plaintiff did not tell him that the accident was caused by a customer sliding towards her which in turn was caused by the wet and slippery floor.

30. The plaintiff’s case stands or falls on my assessment of the credibility of the witnesses, particularly the plaintiff. Inherent probability remains the test of a witness’ credibility.  When the plaintiff’s and Sze’s evidence is tested against all these background and against each other’s evidence, I consider the plaintiff’s evidence incredible and Sze’s evidence more credible.  I find Sze fair and honest.  I accept his evidence. There was no doubt that the plaintiff had an accident on 12 December 2006 when she was knocked by a customer on her right shoulder.  The question is how the accident was caused.  I find that the truth was as what she stated in her report of the accident.  She was knocked by a customer in  a hurry.  The accident had nothing to do with a wet and slippery floor.   The wet and slippery floor, her earlier complaint about the condition of the floor, the sliding customer, the allegation of the customer using foul language are all exaggerations concocted by the plaintiff for the purpose of advancing her common law damages claim.  They are all untrue.

Duty of care

31. If, contrary to the above finding, the accident occurred as a result of the wet and slippery floor, I would have no difficulty to find that it was not caused by the defendant’s breach of duty at common law or under the Occupiers Liability Ordinance.  Such duty is not an absolute duty.  This proposition was clearly stated by the Court of Appeal in Cheung Wai Mei and The Excelsior Hotel (Hong Kong) Limited trading as The Excelsior, Civil Appeal No 38 of 2000.  In that case, the plaintiff slipped while hurrying up the steps at the entrance of the hotel as a result of a pool of water at the top of the steps.  Seagroatt J awarded substantial damages to the plaintiff. The Court of Appeal allowed the hotel’s appeal by a majority.  In dismissing the argument that the duty is a strict one, Mayo VP said at paragraph 24:

“What steps would it be necessary to take to obviate this risk. It would appear that it would be necessary for staff to be posted at every entrance to the hotel and for them to be equipped with cleaning utensils capable of removing any liquid detected on either the marble or more likely coconut matting at short notice. To state this proposition in this way is to virtually state that the hotel in the present case had an absolute duty to ensure the safety of the plaintiff. Or to put the matter another way all the plaintiff would have to establish is that she slipped and fell and suffered injury for her to recover damages. This is not the law.”

32. The duty is to take such care as is reasonable in all the circumstances to ensure that the visitor is safe in using the premises.   By way of example, in a big and busy hotel on a rainy day, to have one cleaner on duty to guard against spillages and remove any water on the floor would have discharged the duty.  Rogers VP said at paragraph 48:

“In relation to the question of the duty owed by the defendant in relation to spillages or other factors giving rise to accumulation of liquid on the floor I have had the advantage of reading the judgment of Mayo Acting CJHC and I agree with it. It seems to me that the plaintiff is attempting to put far too high an onus on the defendant not merely to remove any spillages if and when they occur but in terms of stationing people, presumably at all corners of the hotel, at all times, to guard against spillages. The evidence was that there was at least one cleaner on duty that night. In my view that would have been sufficient. Furthermore, in the absence of there being any evidence that anybody, at all, saw any water, moisture or any slippery substance at or near the scene of the accident, it cannot be said that there was a hazard which should have been seen and cleaned before the plaintiff arrived.”

33. In the present case, even according to the plaintiff’s evidence, she did not know why the floor was wet and slippery at the material time, though she gave some reasons why it was usually wet and slippery.  She only came to conclusion that the floor was wet and slippery on the basis of the accusation of the customer.  As in The Excelsior Hotel case, there was no evidence that anybody saw any water, moisture or slippery substance at the entrance, it cannot be said that there was a hazard which the defendant should have noticed, cleaned and removed before the accident occurred, let alone the plaintiff’s evidence is not believed.  On the facts, it was not a rainy day.  There is no evidence that anybody saw any water, moisture or slippery substance at the entrance.  The defendant had standing procedure to sweep the floor after the lunch session and to mop and clean the floor immediately as the circumstances required.  The deputy manager inspected the condition of the floor three or four minutes after the menu was changed.  I am satisfied that the duty was discharged. 

Conclusion on issue of liability

34. Accordingly, I am not satisfied that the accident was caused by negligence or breach of duty on the part of the defendant.  The plaintiff’s action must be dismissed with costs.

QUANTUM

Introduction

35. For completeness, I now turn to consider the medical evidence and the damages to be awarded had I otherwise found the defendant liable.

36. The plaintiff had a prior history of neck pain. It was disclosed in Dr Mark Lam’s report that just one day before the accident she consulted Dr Mark Lam for neck pain radiating to her right shoulder. Shortly after the accident, she again consulted the doctor on 6 January 2007 for neck pain which persisted for a month and radiated to both arms, giving an account of an accidental twisting of her neck while sleeping on 5 January 2007.  A follow-up magnetic resonance imaging investigation on 8 January 2007 revealed degenerative changes over C3/4, C4/5 and C5/6 with spinal canal stenosis and a prolapsed disc at C5/6.  She underwent cervical spine decompression with excision of intervertebral disc and anterior spinal fusion on 17 April 2007.  Subsequently, she developed a psychiatric condition.

37. On 9 November 2009, she was examined by the joint orthopaedic experts, Dr Kong on behalf of the plaintiff and Dr Lee on behalf of the defendant.  A joint report was prepared by the two joint orthopaedic experts dated 5 January 2010.  As she had not disclosed the treatment received from Dr Mark Lam, which later came to light, the two joint orthopaedic experts prepared two further supplemental reports dated 4 November 2010 and 3 March 2011.  On 3 August 2010, she was examined by the joint psychiatric experts, Dr Ho on behalf of the plaintiff and Dr Chung on behalf of the defendant, who prepared a joint report dated 15 September 2010.

38. There is a fair amount of disagreement between the experts of both parties.  I bear in mind the guidance of the Court of Appeal in Lee Kin-kai and Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232 on the approach of the courts in considering medical expert evidence regarding causation.  Causation is essentially a matter for the judge and not doctors.  The judge will be assisted by medical evidence but is not bound by it.  The law and medicine apply different standards as regards causation.  Doctors practise the science of aetiology.  They look for clinical cause or irrefragable chain of causation which is to be proved beyond reasonable doubt.  But, in law there is causation if it is shown on a balance of probabilities that the accident was a substantial contributing cause of the injury.  It does not need to be the sole cause.   In considering causation, the judge is bound to use common sense.

Orthopaedic condition

39. The joint orthopaedic experts agree on the following matters:

 (a) the plaintiff was diagnosed to have suffered prolapsed  intervertebral disc at C5/6 with cervical myelopathy and right shoulder soft tissue contusion;

 (b)  the plaintiff had a pre-existing condition of cervical spondylosis with neck pain radiating to the right shoulder;

 (c)  the plaintiff received treatments with analgesics, operation, physiotherapy and occupational therapy which were standard and appropriate;

 (d)  the plaintiff’s medical prognosis is fair with modest degree of residual orthopaedic impairments;

 (e)  the plaintiff does not require further operations; and

 (f)  the plaintiff will need regular orthopaedic follow up for her anterior spinal fusion operation in every three to six months.

40. The major disagreement between the two experts is about causation.  While noting that the plaintiff had a pre-existing condition of cervical spondylosis with neck pain radiating to the right shoulder before the accident, in the joint expert report Dr Kong opined that the accident, contusion or sprain injury had caused a prolapsed cervical disc in an area where there was pre-existing degeneration and that but for the accident the surgery of anterior fusion would not have been necessary and the  pre-existing problem would unlikely have given rise to persistent neck and shoulder problems.  However, under cross-examination, Dr Kong agreed that in the light of Dr Mark Lam’s report that it is likely that the plaintiff had prolapsed disc before the accident, which became more serious after the accidental twisting of the neck during sleep on 5 January 2007.  In summary, Dr Kong maintained that the plaintiff’s symptoms were aggravated by the accident and apportioned 45% to the pre-existing cervical spondylosis.

41. On the other hand, Dr Lee opined that the initial symptom suffered by the plaintiff as a result of the accident as recorded by all the doctors who examined her was just shoulder pain and not neck pain.   He opined that for a person with pre-existing neck pain and cervical spondylosis, the total absence of initial neck symptom after the accident and the aggravation of neck pain on 6 January 2007 suggested that the prolapsed disc was related to the degenerative changes and not to the accident.  He said that herniation of disc can occur spontaneously in a degenerated disc and the accident played no part in the production of the myelopathy.  Dr Kong argued that neck symptom could develop two or three weeks after the accident.

42. In my view, the opinions of the two experts are just propositions as to the cause of the symptoms, neither of which is conclusive and either of which is possible.  Dr Kong may be generously in favour of the plaintiff while Dr Lee may be too forensic minded.  I bear in mind the proper approach to be adopted as laid down in Lee Kin-kai.  The court should exercise common sense and look for the substantial contributing cause.  Dr Lee opined that herniation and prolapsed disc had already resulted before the accident.  Under cross-examination, Dr Kong also agreed that the prolapsed disc probably occurred before the accident.  There is no evidence that the prolapsed disc was caused by the accident.  The plaintiff’s cervical spine had developed degenerative changes with spinal canal stenosis and was suffering symptom before the accident.  These changes were spontaneous and had developed over time.  I have no doubt that the prolapsed disc was not caused by the accident.  The question is whether the symptoms were aggravated by the accident.

43. In evidence, the plaintiff said that she was hit to turn around so that she had to push onto the wall with her hand touching the display board and spraining her neck.  This allegation never surfaced in any of her previous witness statements or other documents.  It only first appeared in her evidence in court.  She said she had told Dr Mark Lam and the two joint orthopaedic experts.  That is not corroborated by the reports.  For reasons as I have explained, I do not believe in that evidence.  It looks as if the evidence was created to support Dr Kong’s opinion.  There is no doubt that the plaintiff had been hit badly by a hurrying customer.  She suffered contusion to her shoulder and felt painful.  It was certainly not very painful initially until the afternoon of the following day when she felt it necessary to see a doctor.  She did not tell any of the doctors about her neck pain.  Indeed, she had been suffering from neck pain since the day before.  Any neck pain which might have occasioned as a result of the accident might have been overlooked by her or masked by the shoulder pain or it might only develop two or three weeks afterwards as suggested by Dr Kong.  However, for an impact to be such as to cause injury to the plaintiff’s neck which had already developed a pre-existing condition, it must be one which had some noticeable effect on the neck.  The plaintiff must have felt the sprain or the twist or even felt immediate pain as suggested by Dr Lee.  Had that occurred, she would have said so in some of the earlier documents.  She mentioned nothing about the twist or the spraining of her neck in her accident report dated 16 April 2007.  That was not pleaded in her statement of claim dated 3 December 2009, though cervical spondylosis was pleaded.  She did not mention it in her first witness statement dated 25 May 2010.  I cannot help feeling that the evidence was concocted after the issue of causation became a live issue as a result of revelation of her having consulted Dr Mark Lam about her neck pain on 11 December 2006.  Rejecting her evidence of having sprained her neck during the accident and taking a common sense approach to the issue of causation, I find  Dr Lee’s proposition more probable.  I find that the symptoms which developed after the accident are the result of an on-going degenerative process of pre-existing cervical spondylosis.  They were not caused by the accident.

Psychiatric condition

44. The plaintiff had no psychiatric problem before the accident.  While receiving treatment for her orthopaedic and psychiatric condition, she was also suffering from a lot of bodily symptoms suggestive of gall stones, gynaecological illness and other diseases over her gastrointestinal tract and liver.  Many investigations had been performed and she was extremely worried about her health.  She had surgery to remove her appendex and gall stones. Other than these and the orthopaedic problem, she enjoyed good health.

45. After recovering from the shoulder injury, she returned to work as a cashier in the defendant’s fast food restaurant in Sheung Wan in December 2007.  She was not comfortable with the new working environment and work pressure.  She could not stand for long time and felt anxious when she had to put menu on the display board.  Her physical symptoms deteriorated after working for a week and she had to call for an ambulance while at work and was admitted to the hospital.  Three months later, she worked at another fast food restaurant in Kornhill.  She became very unhappy and heard non-existing voices saying “useless” and “drop death”.  She felt pain over her head, neck and back.  She was admitted to the orthopaedic ward again a month afterwards.  She developed a psychiatric condition and was admitted to hospital on a number of occasions for cutting her wrist, inflicting other self harm, or attempting suicide. 

46. The plaintiff is still suffering from persistent needle pricking pain from her neck to her back and shoulder.  She is awakened by the pain in her sleep.  She does not sleep well.  She sleeps three to four hours a night.  She has headache.  She is slow, unhappy, considers herself crazy and has a low esteem for herself.  She has no appetite.  She heard non-existent voices.  She is anxious for nothing.  She suffers from side effect of psychotic drugs. 

47. On 3 August 2010, the plaintiff was examined by the two joint psychiatric experts, Dr Ho on behalf of the plaintiff and Dr Chung on behalf of the defendant.  Both doctors were in agreement that the plaintiff suffered from a major depressive disorder with psychotic features requiring further psychiatric treatment.  Both of them were of the opinion that the plaintiff should be capable of returning to her previous employment as a cashier.  Dr Ho considered the plaintiff in partial remission and her permanent psychiatric impairment to be mild to moderate, but her symptoms fluctuated depending on the prevailing circumstances.  Dr Chung considered the plaintiff’s illness was largely in remission.  She was last discharged from hospital on 3 November 2008.  Her mental condition has been well maintained since.  Both doctors considered continued treatment appropriate.

48. On causation, Dr Ho said in the joint psychotic report that the apportionment of causation of the plaintiff’s psychiatric disability by the accident should be proportional to the apportionment of her orthopaedic disability.  On the other hand, Dr Chung is of the opinion that the psychiatric illness was wholly caused by the accident if all her physical symptoms were caused by the accident; but if the neck symptoms were not caused by the accident, the majority of the depressive illness was not caused by the accident.  I prefer Dr Chung’s opinion which is more logical and consistent with the court’s approach to causation.  It is the neck and shoulder pain which caused the psychiatric condition.  If the accident did not aggravate the orthopaedic condition, the psychiatric condition which developed could not have been caused by the accident.  If the accident substantially caused the orthopaedic condition, then the psychiatric condition was wholly caused by the accident. However, as  I find that the orthopaedic condition was not substantially caused by the accident, I conclude that the psychiatric condition was not caused by the accident.

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

49. The plaintiff claims a sum of $275,000 for pain, suffering and loss of amenities.  The amount is based on a claim of $500,000 discounted by 45% for her pre-existing cervical spondylosis.  Mr Cheung places the plaintiff’s injury in the serious injury category as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.  He relied on the following case in support:

(1)  Lam Hok Fai and Chan Sai Kit and Another, HCPI 377/2003 (unreported) dated 29 October 2004 – award of $500,000;

(2)  Fong Kit Man and Ng Tsz Keung W P Company Limited and another,HCPI 539/2005(unreported) dated 3 April 2008 – award of $450,000;

(3)   Lam Chun Oi and Asat Limited,HCPI 115/2008(unreported) dated 29 October 2009 – award of $400,000;

(4)   Yan Kwok Yue and Dong Shu Kei Beau,HCPI 923/2000 (unreported) dated 22 January 2002 – award of $500,000; and

(5)  Sin Kin Man and Hsin Cheong Construction Company Limited, HCPI 740/2004 (unreported) dated 30 November 2005 – award of $500,000.

50. I think the plaintiff’s reliance on those cases misplaced.  The damages awarded in those cases were for substantial injury.  Here, the plaintiff only suffered contusion to her right shoulder.  The orthopaedic condition was not caused by the accident.  The shoulder injury by itself would not have required any operation or developed any psychiatric condition.  A nominal amount of $10,000 would be appropriate.

Pre-trial loss of earnings and mandatory provident fund

51. At the time of the accident, the plaintiff was employed by the defendant as a cashier earning an average monthly income of $11,346.04. She claims that she is now unable to resume any gainful employment since the date of the accident.  This is contradicted by the medical evidence in which even her own medical experts agreed that she could return to her pre-accident employment.  She is therefore only entitled to the loss of income during the period of sick leave.  Dr Kong suggested a period of two to three years’ sick leave after the operation for the totality of her orthopaedic condition, whereas Dr Lee recommends a period of two to three months for the contusion to her right shoulder.  I consider two month’s sick leave appropriate for her shoulder injury, but none for her other orthopaedic condition and her psychiatric condition.  Therefore, her pre-trial loss of earning and mandatory provident fund is $23,826.68 ($11,346.04  ×  2  × 105%).

Loss of future earnings and mandatory provident fund

52. As the plaintiff is able to return to her pre-injury employment, she is not entitled to any loss of future earnings and mandatory provident fund.

Loss of earning capacity

53. The plaintiff claims $100,000 as loss of earning capacity.  The defendant is prepared to allow $55,000 as damages under this head on the basis of the plaintiff’s admission that 45% discount be given for her pre-existing condition.  I consider the concession excessive.  The plaintiff is able to return to her previous employment.  Her contusion was fully recovered.  I consider her psychiatric condition was not caused by the accident.  Any loss of earning capacity is the result of an on-going process of deterioration of her pre-existing orthopaedic condition.  I would only allow a nominal award of $10,000.

Other special damages

54. The plaintiff claims special damages in the total sum of $24,955.  Mr Chan argues that discounting 45% for the plaintiff’s  pre-existing condition, the plaintiff’s claim should be $13,725.25 and concedes an award of $5,000 only.  I consider the concession more than generous and allow the award.

Future medical expenses

55. The plaintiff claims a total of $50,000 as damages for future medical expenses to be incurred in receiving psychiatric treatment in the private sector.  Dr Ho considered it appropriate for the plaintiff to continue her psychiatric treatment in the public sector for two years, while Dr Chung considered one year was sufficient.  In any event, more than one and half years have now elapsed.  The plaintiff has already received the necessary treatment.  In any event, she is not entitled to any damages for her psychiatric condition which was not caused by the accident.  Therefore, no award is made under this head.

Conclusion on quantum

56. In summary, if the plaintiff is otherwise entitled to damages, the total amount of damages which would be awarded to her is $48,826.68, which is made up of the following items:

Pain, suffering and loss of amenities	$10,000.00
Pre-trial loss of earnings and Mandatory provident fund	$23,826.68
Loss of earning capacity	$10,000.00
Special damages	$  5,000.00

The plaintiff received $85,218.70 compensation in her employee’s compensation claim, which is far in excess of the above award.  Accordingly, she will not be entitled to any award under this action.

Conclusion

57. In summary, the plaintiff had a pre-existing degenerating condition in her cervical spine with a prolapsed disc.  She suffered a contusion injury to her right shoulder arising out of and in the course  of her employment for which she received compensation under the Employees’ Compensation Ordinance.  Her orthopaedic condition deteriorated and brought about a psychiatric condition which lasted for two years.  She brought a personal injuries action against the defendant in respect of the accident. However, she is unable to prove that the accident caused or aggravated her orthopaedic and psychiatric condition.  Even if she were able to prove liability on the part of the defendant, the statutory compensation she received under the employees’ compensation claim is more than enough to cover any award she would be entitled to under this personal injuries action. 

58. Accordingly, the plaintiff’s claim is dismissed.  I make an order nisi that the plaintiff shall pay the defendant’s costs to be taxed,  if not agreed, while the plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.