WONG SAU LAI v. CATHAY PACIFIC AIRWAYS LTD.

DCEC1004/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1004 OF 2001

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J U D G M E N T

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1. This is an application for Employees' Compensation under sections 9, 10, & 10A of the Employees' Compensation Ordinance in respect of injuries arising from an accident on the 17th November 2000. There is now no dispute that the accident arose out of and in the course of employment. The pre-accident monthly earning has been agreed at $16,397.40 per month. The issues between the parties relate to

1. Whether the present injury suffered by the Applicant relate to a pre-existing condition or whether it arose out of the accident on the 17th November 2000.

2. Whether this is a case where compensation should be assessed under Section 9(1A) of the Ordinance.

3. Whether the Applicant is by virtue of her injuries from the accident unable to return to her pre-accident employment as a cabin attendant of a commercial airliner.

4. The quantum of compensation.

The evidence of the Applicant

2. The Applicant was born on the 27th July 1970 and was aged 30 at the date of the accident.

The accident

3. The accident occurred whilst the Applicant was working as a cabin attendant in the business class at a galley on board Flight No. CX500, a Boeing aircraft B777-300 en-route from Hong Kong to Tokyo, Japan. The accident occurred whilst the Applicant was squatting down and pulling out a drawer overloaded with bottles of alcoholic drinks placed on the partition between the upper and lower compartments of a bar cart, intending to pick out a bottle of alcoholic drink ordered by a passenger. Some of the bottles tilted causing the drawer to tilt and to fall with the bottles therein. The drawer hit the Applicant at her right knee and the Applicant sustained personal injury to her right knee and a cut to her left middle finger. Her right knee was swollen and slightly cut by glass fragments.

Accident in August 1999

4. The Applicant had suffered an accident on 26 August 1999 when she was knocked over by a strong wind in the typhoon and suffered contusion to both knees. She was given sick leave to 5 November 1999 and assessed to have suffered 2 % loss of earning capacity.

The Education and Employment History of the Applicant

5. The Applicant completed Form 5 in secondary school. She passed 7 subjects all with grade D except Chinese History where she got grade A. In November 1988, the Applicant started working as a junior secretary. She took and completed a secretarial course in the evening college of Sarah Beattie Secretarial College. She learnt correspondence course 1 and 2, typing and shorthand. She also learnt to operate a word processing programme called Wordstar. At the time when she obtained her diploma, her typing speed was 62 words per minute and her shorthand speed was 80 words per minute. Now, the Applicant states that she knows how to use Microsoft Word for word processing. She has forgotten all her shorthand.

6. After, she obtained the diploma she applied those skills working for Mr. Chan, a partner of Messrs, Lee, Chan & Co. She typed legal documents, managed his diary, answered telephone calls, communicated with other lawyers, dealt with clients, gave messages from Mr. Chan to other staff to do specific jobs. When the solicitors firm splitted up she followed the partner Mr. Chan to his new firm Messrs. K.F. Chan & Co. She clearly knew what he needed when she worked for him. She worked for Mr. Chan for almost 5 years. Sometimes, he did conveyancing work. He also did a lot of litigation and commercial work. Her salary when she left Mr. Chan's employment to work for Cathay Pacific as a flight attendant was $16,000 per month. She left Mr. Chan's employment voluntarily in November 1994, in order to enter into employment as a cabin attendant with Cathay Pacific, the Respondent.

7. She agreed that she would not lose the skill of typing even though her present speed is slow compared to her former typing speed of 62 words per minute. Even though in November 2001, Dr. Au, the Applicant's expert witness advised her that she was fit to go back to work as a secretary, she did not take any course to improve her typing skill. She did not improve her skill in word processing nor refreshed her knowledge of correspondence on shorthand skill. She stated however that she improved her English through reading English books. She did not do any study to prepare herself to return back to sedentary work after having been advised by Dr. Au than she could return to sedentary work.

8. There is no dispute that the Applicant learnt skills whilst working as a cabin attendant and through the training given by Cathay Pacific including skills in personal presentation, deportment and communication. In particular she learnt how to deal with difficult people. She also had exposure through travel to many parts of the world through which she gained confidence.

The Injuries

9. She was diagnosed to have contusion of right knee. X-ray did not show any abnormality of the bone. She suffered on and off right anterior knee pain especially after prolonged walking. Her range of movement was full. Patella grinding test was done by Dr. Chang Shao, on 12 Dec 2000 was found to be positive. He stated it was indicative of retropatella friction pain. However he did not find bruises, swelling or effusion or sign of inflammation. MRI scan done by Dr. Hector Ma on 24 April 2001, found all the structures in and around the knee are in fact normal. There was no sign of cartilage defect, cartilage thinning, osteophyte at joint edges, or subchondral cystic changes to arouse the suspicion of degenerative arthritis of the patello-femoral joint or knee joint or Chondromalacia of the patella. The only abnormality observable is a small amount of joint fluid on both sides.

Complaints of the Applicant

10. After the accident, she feels pain if she bends or exerts pressure or force on her right knee. She suffered on and off exacerbation of right knee symptom with exertion. Sometimes she has to take a rest and take painkillers to relief pain. The discomfort and pain is aggravated in bad weather. Because of the right knee injury, she has to avoid activities that involve excessive or long time bending of knees of exerting pressure or force on her knees such as squatting kneeling and stair climbing or even walking. She said that she felt knee discomfort when she carried heavy shopping such as 2 bottles each containing 1 litre of detergent or fabric softener respectively.

11. After the accident she returned to work and flew on 9 occasions. After each flight, through standing for a prolonged period, her leg was swollen and she felt pain in her leg. Her right knee was affected. After work she would take a pain killer and apply cream given her by the doctor. She would use a hot water bottle to put against the knee and she would stretch out her leg at home.

The 1st Issue

12. The Applicant's accident in August 1999 involved her landing with her body weight on both knees and was considered by both Dr. Au Ka Kau, the Applicant's medical expert and Dr. Lam Kwong Chin the Respondent's expert to be more serious. After treatment, Dr. Walker stated that the Applicant was fit for work on the 21 October 1999. The Applicant returned to work without any sick leave since November 1999.

13. Dr. Lam Kwong Chin was of the opinion that based on the physical finding of the doctors and orthopaedic specialists who treated the Applicant after the accident in November 2000, and the results of the MRI scan and X-rays, he agreed with Dr. Chang that the Applicant might have a background of Chondromalacia patellae before the incident. This is not uncommon in young females especially with small quadriceps muscles. The injury of contusion of right knee merely triggered off and intensified the symptoms. He stressed that the pain was a pre-existing one and not solely triggered off by the subject accident. He stated that Chondromalacia patellae is a very common condition in young adults, presenting with aching pain behind the patella. It is usually made worse by activities involving bending of knees beyond 90 degrees, e.g. prolonged sitting, squatting, or using staircases. The condition is considered as due to cartilage degeneration of the patella, starting as softening in the subcondral area. Dr. Lam stated that without crepitation on physical examination, but without joint space narrowing on x-rays, a 2% whole person or 5% lower-extremity impairment is given. Without crepitation on physical examination, Ms. Wong should have at most 1% impairment if the present condition is assessed, disregarding any pre-existing problems. If the pre-existing impairment is taken into account, the subject injury carries no ratable impairment at all.

14. Dr. Au, the Applicant's expert stated that the complaints suffered by the Applicant were compatible with the injury suffered in the accident. He gave the diagnosis of right patello-femoral joint pain arising from the right knee injury. He assessed the Applicant to have suffered from 5% loss of earning capacity. After deducting the 2% loss of earning capacity arising from the accident in August 1999, he assessed the Applicant's loss of earning capacity arising from this accident to be 3%.

15. Under cross-examination he stated that the Applicant's condition was not due to Chondromalacia patellae. He was of the view that the injury arising from the accident in August 1999 although healed yet rendered the cartilage to the knee to be susceptible to further injury. He was of the view that the injury caused by the accident in November 2000 may have caused fine scratches in the cartilage, which is not so great as could be seen in an MRI but nonetheless could render the Applicant's knee to be susceptible to pain upon prolonged activity. He stated that it is a case of mild cartilage damage. He stated that healed cartilage cannot stand up to stress as well as normal cartilage. He further pointed out that the MRI could not show any sign of Chrondromalacia patellae. He was of the view that 6-9 months of sick leave was sufficient and he stated that he would advise her to go back to work to keep her knees straight when she sits. He was of the view that she should not return to work as a cabin attendant in view of the fact that the work required squatting and standing and bending of the knee.

16. In my view owing to the fact that the Applicant had returned to work after the accident in August 1999 without any issue of sick leave to her since November 1999 until her accident in November 2000, it would seem that she had recovered sufficiently from that injury to be able to work. This is a factor, which suggests that her injury caused by the accident in November 2000 was not simply the pre-existing injury from the earlier accident in August 1999. I accept the view of Dr. Au that the injury caused to the Applicant in the accident in August 1999 could have rendered the cartilage of the Applicant's right knee to be more susceptible to injury. However, it would seem that the injury caused by the accident in November 2000 could not have been too serious, as the MRI did not disclose any damage to the cartilage. However, Dr. Au explained that minor scratches to the cartilage would not show up in an MRI. The fact that the healed injury to the cartilage of the right knee of the Applicant caused by the August 1999 incident caused the cartilage of the right knee of the Applicant to be more susceptible to injury, could explain why the Applicant suffered the injury and its effects in the accident in November 2000 even though the accident was less serious than that in August 1999. I therefore come to the conclusion that the symptoms suffered by the Applicant was not that from a pre-existent condition.

2nd Issue

17. Section 9 (1A) of the Ordinance states -

Where -

(a) Permanent partial incapacity results from an injury or a combination of injuries (whether or not specified in the First Schedule). And

(b) The percentage of the loss of earning capacity specified or assessed in relation to that injury or combination of injuries in accordance with subsection (1) would be substantially less than the percentage of the loss of earning capacity permanently caused by the injury or injuries in the special circumstances of the employee, including, without limiting the generality of the foregoing-

(i) the nature of the injury or injuries in relation to the nature of his former usual employment; and

(ii) his qualifications, previous training and experience, the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury or injuries in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time.

18. The Applicant's previous training and work experience before she became a cabin attendant had been stated. The Applicant had the work experience and training of a legal secretary working for the partner of a solicitor's firm earning $16,000 per month. Although the Applicant stated that she had lost her typing speed and forgotten her shorthand, however, it is clear that she had the capacity to earn this salary. She had good training as a secretary. In my view, there is nothing to suggest that she could not return to the work of a legal secretary and regain her former skills and recapture her experience by a short period of study and re-training. I agree with the Respondent's Counsel that whilst working as a cabin attendant with Cathay Pacific Airways, she had enhanced her communication skills and her presentation as an attractive, bright and confident young woman. These are assets, which she had gained which could become useful in her work as a secretary. In my view her past experience and skills as a legal secretary could easily come back with training and entry into the work force.

19. I refer to the cases referred to me by the Respondent's Counsel. In Ball v. William Hunt & Sons, Limited [1912] AC 496, Lord Atkinson said at page 505,

'The words "or is able to earn" are most significant. They point to the retention of the power to earn something in a suitable employment, and to the extent that this power is retained or has returned, though he may not try to exercise it, he does not incur the particular kind of loss for which compensation is to be given.'

20. In Lau Ho-wah v. Yau Chi-biu [1987] HKLR 1061, Sir Owen Woodhouse said at 1063G,

"In ordinary language the concept of earning capacity is certainly not limited to the present or to be measured by some immediate and possibly quite fortuitous achievement. It is concerned with a continuing state, with the potential of an individual and so very much with the future as well."

21. I also refer to Kempster JA's decision in Wong Sing Fung v. Fu Ming stainless Engineering Co. Ltd. ( taken from the Butterworths' Hong Kong Personal Injury Service, Vol. 2, para [1602] in the Applicant's list of authorities) that,

"the essential elements are not actual earnings, whether in alternative employment as at the date of the accident or in the relevant employment at such time, but earning capacity in one or other form of employment."

22. In my view, this is not a case where Section 9 (1A) should be invoked as the Applicant is clearly one whose former training and work experience as a legal secretary clearly shows that she has the capacity to return to a line of work or profession where her earning capacity is clearly one of a legal secretary to the partner of a solicitor's firm. Her experience as a cabin attendant has enhanced her ability to deal with people and given her the confidence which her travels and experience of the world has given her. I see nothing to stop the Applicant from regaining all her former skills and even improving on them. She had wasted much time during the time of her extended period of sick leave in failing to use such time to re-train and to re-learn her former skills. In my view such skills could easily be recaptured were she minded to do so. Section 9(1A) is to be invoked to assess a higher loss of earning capacity in cases where the Applicant had received little education and did not possess other special skills apart from working in manual work or other work which requires manual dexterity or physical strength. This is not a case within that category.

3rd Issue

23. In my view, with a weakened condition of the knee where the Applicant would feel pain on repeated bending, carrying weight, walking, standing, squatting and walking of stairs, the work of a cabin attendant would not be work, which the Applicant would be suited to continue in. I agree with Dr. Au's view on this. The Applicant would be under added stress in carrying out the work as a cabin attendant were she constantly mindful or fearful of the possibility of pain after a flight. Further, cabin attendants have to be prepared for all manner of emergencies, exceptional though these could be. It is certainly not good to have any working at less than full confidence of fitness to do the job. I therefore find that she is not fit nor suited for the work of a cabin attendant.

4th Issue

24. In relation to quantum of damages, the only issue relates to section 9 compensation. Dr. Lam stated that there was no loss of earning capacity whilst Dr. Au assessed the Applicant's loss of earning capacity at 3%. I adopt the median range of the loss of earning capacity assessed by the two doctors, as suggested by the Respondent's Counsel. With the monthly earnings of the Applicant at the time of the accident agreed at $16,397.40 a month, I assess section 9 compensation as follows,

$16,397.40 x 1.5% x 96 months = $23,612.00.

25. I therefore give judgment for the Applicant in the sum of $23,612.00 together with interest thereon from date of the accident at half judgment rate to date of judgment and thereafter at judgment rate until payment. I make an order nisi for costs of the action to be paid by the Respondent to the Applicant to be taxed if not agreed with Certificate for Counsel.