WONG WAI MAN v. YI WO YUEN AGED SANATORIUM CENTRE LTD

HCPI 77/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 77 OF 2007

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Dates of Hearing : 22–23 May & 6 June 2008

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JUDGMENT

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1. The defendant operated a home for the elderly at 172–174 Boundary Street, Kowloon under the name of Yi Wo Yuen Sanatorium Centre (“the Centre”).

2. The plaintiff was, at the time of the accident described below, employed there as a personal care worker and her duties included bathing the elderly resident inmates.

3. On the morning of 26 December 2004, the plaintiff was in the bathroom of the Centre just about to give a bath to one of the resident there by the name of Ah Foon.  Ah Foon was seated on a commode chair.  The plaintiff was next to Ah Foon with her back towards Ah Foon and was adjusting the water temperature of the shower.  Ah Foon, who has a catheter tube inserted into her abdomen, suddenly cried out in pain.  When the plaintiff turned around because of the cry by Ah Foon, the plaintiff saw Ah Foon falling forward while seated on the commode chair.  The plaintiff threw away the shower head and used both arms to hold onto Ah Foon preventing her from falling further and straightened Ah Foon back up onto the chair.

4. As a result of taking such preventive action to stop Ah Foon from falling any further, the plaintiff injured her back (“the accident”).

5. It is alleged by the plaintiff that the accident was due to the negligence of the defendant as an employer in :

(a)  failing to provide her with the necessary training;

(b) failing to provide adequate manpower to assist her in the work;

(c)  operating an unsafe system of work; and

(d) failing to provide her with the adequate equipment for the work.

THE OCCURRENCE OF THE ACCIDENT AND CAUSE OF INJURY

6. The only witness who had given evidence on the occurrence of the accident was the plaintiff.

7. The defendant had called a witness, Chan Ching Yu, the executive director of the Centre.  However, she was not present when the accident occurred and therefore did not witness its occurrence.

8. Mr Sarony SC who appeared for the defendant, had elicited from the plaintiff in cross-examination that she first felt pain in her back only when she was putting on trousers for Ah Foon after the bath, and which was some 8 minutes after having taken the preventive actions to stop Ah Foon from falling.

9. Flowing from this evidence elicited in cross-examination, Mr Sarony submitted that injury to the plaintiff’s back could not have been due to the preventive action taken by the plaintiff to stop Ah Foon from falling but must have been caused by her degeneration when she tried to put on trousers for Ah Foon.

10. In so submitting, Mr Sarony had obviously overlooked the fact that at the start of the trial, he had sought leave and which was granted to the defendant to amend its Defence.  Paragraph 25 of the Amended Defence reads :

“25.     The Defendant admits that on 26^th of December 2004 the Plaintiff was adjusting the shower water temperature for the patient ‘Ah Foon’ (‘the patient’) who was seated behind her in a showerchair, when the Plaintiff heard the patient cry out suddenly, at which the Plaintiff turned round, saw the patient falling forward, whereupon the Plaintiff went to prevent the patient from falling and subsequently felt a pain in her back.”

Such admission as pleaded in paragraph 25 of the Amended Defence had never been withdrawn by the defendant and the point which Mr Sarony sought to make on the evidence elicited by him in cross-examination and relevant to the occurrence of the accident and the cause of the injury to the plaintiff is now not open to him to make.

11. Quite apart from the pleading point, it should also be noted that the plaintiff’s evidence-in-chief as contained in paragraph 25 of her witness statement (which was adopted as her evidence-in-chief) dated 10 October 2007, the plaintiff had said :

“25.     After ‘Ah Foon’ had sat on the shower chair, I turned around to face the switch of the shower to adjust the water temperature for her.  At that moment, I heard a suddenly [sic] loud scream from her.  I turned around immediately and saw her falling forwards.  I rushed to uphold her at once and hence twisted my waist.”

12. Moreover, it is also enlightening to note what had been stated by the defendant’s orthopaedic expert, Dr Chun Siu Yeung, as to the plaintiff’s account to him of the accident which is contained in paragraph 3 of Dr Chun’s report dated 10 July 2006 as follows :

“3.       Madam Wong [the plaintiff] said that on 26/12/2004, while washing an elderly female who suddenly shouted and fell forward, she turned her trunk and held the lady and put her back onto a stool, she noticed low back pain.  It was bearable so she continued to work.  She squatted down to put back the trousers for the lady.  She could not get up.  Then she took a taxi to the Accident & Emergency Department (AED) of KWH.”

13. Given the totality of the evidence relating to the occurrence of the accident both from the plaintiff’s evidence and also the account given by her to Dr Chun, and given the fact that the plaintiff is a person not highly educated and not the most articulate of witness, I have little doubt that the answer she gave in cross-examination to the effect that she first felt pain in her back was some 8 minutes after, was an imprecise answer but that the plaintiff had focused on the severe debilitating pain which stopped her from standing up rather than the initial low back pain which was bearable to her.

14. If it should be necessary, I find the account given by the plaintiff to Dr Chun to be the more accurate of what had happened at the time of the accident, namely that immediately after turning round to straighten Ah Foon on the shower chair, the plaintiff had indeed experienced some low back pain but went on with her work until the time when she tried to stand up after putting on the trousers for Ah Foon.

15. I accept the evidence of the plaintiff as to how the accident occurred and I do not accept that there were inconsistencies in the accounts given by the plaintiff at different times to different people or on different occasions. 

UNSAFE SYSTEM OF WORK

16. The plaintiff’s claim was brought on the basis of an unsafe system of work operated by the defendant at the time of the accident.

17. The unsafe system of work alleged by the plaintiff was that only one care worker, namely the plaintiff, was assigned the task of washing the elderly inmates at the home.

18. Although Ah Kam assisted, her assistance was only limited to getting the next inmate ready for the bath and using a wheelchair to take the next inmate to the bathroom where the plaintiff would bathe them.  At no time would Ah Kam assist in the actual bathing of the inmates in the bathroom.  That was done by the plaintiff alone.

19. In this respect, the plaintiff’s evidence was that some of the inmates, when being bathed by the plaintiff, would react to her bathing them by pulling the plaintiff’s hair.  This is particularly so with inmates who had dementia.  When that happened, she could not even shout out to Ah Kam to help her, since Ah Kam was busy tending to other inmates.  Therefore she had to handle the inmates whom she was bathing by herself all alone.  According to the plaintiff if there was another helper to assist her in the bathroom, many of these problems could be taken care of and that this accident would not have happened.

20. Moreover, the workload for bathing the inmates was heavy in the morning as she had to finish bathing some 11 to 12 inmates single-handedly within the short time of about an hour and a half to get them ready for their morning exercise before the physiotherapist arrived at 9.00 a.m.

21. There was also evidence from the plaintiff that when she was involved in similar type of work in Mainland China, there would normally be more than one care worker in assisting the bathing of inmates generally.

22. On the other hand, the evidence of Chan Ching Yu, the executive director of the defendant, was that inmates at the home are categorised into three categories according to their ability to move, their mental consciousness and the ability to take care of themselves.  The three categories are :

(a)  highly in need of care;

(b) moderately in need of care; and

(c)  least in need of care. 

Ah Foon belonged to category (c) and did not need any special care. 

23. Although not expressly stated, it was implied in that evidence of Chan Ching Yu that it was not necessary for more than one care worker to bath Ah Foon.

24. In cross-examination of Chan Ching Yu, it became apparent that because the plaintiff had only joined the defendant for just over a month when this accident happened, the full training normally given to a care worker had not been given to the plaintiff by the defendant.  Chan Ching Yu’s evidence was that training would only be given to the plaintiff upon her completing the three months of probation.

25. Moreover, Chan Ching Yu when asked, was unable to say whether any straps were used to strap up the inmates on the ground floor of the centre when they were being bathed, although she did say that straps were available.

26. It was however clear from the evidence that Ah Foon was not strapped to the chair when she was bathed.

27. Given all the circumstances, I accept the submission by the plaintiff that it must have been reasonably foreseeable that in the course of giving baths to the inmates on the ground floor, situations might arise with the imates which would require more than one care worker to assist or to intervene.  At the best of times, the inmates, even those who are categorised as being least in need of care by the defendant, as in the case of Ah Foon (but who had a catheter attached to her abdomen) would need extra care not just because the bathroom would be wet, but because a number of different situations may arise in the course of bathing, particularly in such rushed circumstances.  To leave these inmates to be bathed single-handedly by the plaintiff in the bathroom without other assistance when the plaintiff had not been given full training by the defendant and was not under any kind of supervision unreasonably exposed the plaintiff to a risk of an accident which was waiting to happen due to such unsafe system.

28. In so saying, I am looking at the entire system as a whole and not focusing only on the details of the accident which happened when Ah Foon was bathed.

29. Had there been another care worker assisting at the time of this accident, the plaintiff would not have had to react in the way she did and would likely not have suffered the sprain injury she did when she had to twist her body round to lift Ah Foon believing that Ah Foon might fall off the chair.

30. For these reasons, I am satisfied that the system employed by the defendant for bathing of inmates was an unsafe system and which unreasonably exposed the plaintiff to a risk of injury.  Accordingly I find the defendant to be negligent and therefore liable to the plaintiff for this accident.

CONTRIBUTORY NEGLIGENCE

31. Although pleaded in the defence, contributory negligence has not been pursued by leading counsel for the defendant in his final submission and does not seem to arise for consideration.

32. Even if I am wrong in thinking that contributory negligence was not a live issue, contributory negligence depends on some fault of the plaintiff.

33. On the facts of this case, I cannot see any fault of the plaintiff who was carrying out her work as best she could in the circumstances of the system provided by the defendant.

34. The plaintiff was neither doing something she should not have been doing nor was she taking any short cut in her work for her own convenience.

35. In all the circumstances I do not see any contributory negligence on the part of the plaintiff. 

36. Probably for the above reasons, contributory negligence has not been pursued by leading counsel for the defendant.

QUANTUM

Injuries and treatment

37. After the accident, the plaintiff attended the Accident and Emergency Department of Kwong Wah Hospital the same day.  She was diagnosed to have sustained a sprained back.  She was given analgesic tablets and discharged.

38. Because of persistent pain at her back, she attended the Kwong Wah Hospital in April and June 2005 as well as receiving treatment from private medical practitioners including her employer’s designated doctor.

39. The plaintiff was hospitalised at Kwong Wah Hospital from 21 to 28 June 2005.

40. She underwent occupational therapy and physiotherapy at Kwong Wah Hospital.

41. The plaintiff also received treatment at Kwun Tong Occupational Health Clinic on 14  November 2005 where physical examination showed tenderness of the paraspinal muscle over the low back with decreased range of movement of the spine.  She was given sick leave up to 12  May 2006.  She was referred to the Orthopaedic and Traumatology Department of Caritas Medical Centre for management of her back problem and also referred to the Pain Clinic of Kwong Wah Hospital for her chronic pain as well as the Psychiatric Department of Yaumatei Specialist Clinic for her mood disturbance.

42. Since February 2006, the plaintiff also attended the West Kowloon Psychiatric Centre where she received psychiatric treatment due to adjustment disorder with depressive mood.  In the latter half of 2006, the diagnosis was revised as major Depressive Disorder and the dosage of the antidepressant was increased.  Thereafter, her symptoms gradually improved over time.  By April 2008, the plaintiff’s mood had improved substantially and she became less anxious about the work and her well-being.

43. The plaintiff was examined by Dr Au Ka Kau, an orthopaedic expert instructed by the plaintiff, on 5 June 2006.

44. A medical report prepared by Dr Au dated 19 June 2006 was produced in evidence.

45. Dr Au opined that the plaintiff sustained a low back injury during the accident which is compatible with soft tissue injury.

46. The plaintiff also complained of leg pain and numbness of her sole but MRI investigation showed no evidence of nerve root impingement.

47. Dr Au found several non-organic signs, namely :

(a)  the Straight Leg Raising test was much better in sitting position than in supine position;

(b) downward pressure over her skull caused increase in low back pain; and

(c)  passive rotation of shoulder and pelvis in same plane caused increase in low back pain.

48. These signs, according to Dr Au, represented body language telling the plaintiff that her back was significantly painful, but other examiners may interpret them as symptom magnification if three or more non-organic signs were present.

49. The MRI performed in Mainland China showed degenerative changes and possibly protruded disc at L4/5 and L5/S1.  They are developmental in origin and not caused by the accident.  Since the plaintiff was asymptomatic before the accident, the accident probably had aggravated the degenerative change and rendered her back painful.

50. The plaintiff had received adequate and appropriate treatment for her back injury and further treatment is unlikely to improve the outcome.  She will have on and off exacerbation of the back pain and would be advised to pay attention to proper lifting posture and avoid bending her back excessively.

51. Dr Au assessed the plaintiff to have 5% impairment of the whole person.

52. As for employability, Dr Au states that based on the MRI taken in Mainland China, there is no absolute contradiction for the plaintiff to return to her pre-accident job.  Dr Au therefore opined that the plaintiff probably could return to her pre-accident job but with reduced efficiency.

53. The plaintiff was also examined by Dr Chun Siu Yeung, an orthopaedic expert instructed by the defendant, on 11 May 2006.  Dr Chun prepared a medical report in respect of the plaintiff dated 10 July 2006.  That report was adduced into evidence at trial.

54. As a result of his examination of the plaintiff, he came to the conclusion that the plaintiff might have suffered a minor sprain of the soft tissue of the low back since two sets of MRI taken of the plaintiff showed no neuro-compromise or serious condition of the spine.

55. Dr Chun opined that the plaintiff’s progression to serious low back pain and lower limb symptoms was most likely psycho-socially related since there was no structural basis to account for such symptom.

56. He further took the view that there were features of exaggeration of the disability and pain by the plaintiff and that she did not require a walking stick for walking.

57. Dr Chun took the view that one month’s sick leave would be reasonable for a minor sprain of the soft tissue of the back and that the plaintiff should be able to return to her pre-accident work as well as perform household work.

Pain suffering and loss of amenities

58. The defendant had instructed Intellect Consultancy Ltd, surveillance agents, to keep surveillance on the plaintiff.  As a result, the plaintiff was videoed by the surveillance agents on 21 September, 8 and 27 October 2005 as well as 28 March and 4 May 2007, all in public areas.

59. The video surveillance tapes were played at trial and produced in evidence.

60. The video showed the plaintiff on all occasions, both in 2005 and 2007 to be able to walk in public without the assistance of any walking stick.  Indeed all the videos showed the plaintiff to be able to walk quite normally, without the slightest indication of any limping or uneven gait, even when going up or down steps.  It also showed her to be able to board public transport without any difficulty.  The plaintiff shown in all the videos was portrayed as being no different than any able bodied person.

61. The video taken on 21 September 2005 also showed the plaintiff to be smoking in the street.

62. As a result of such surveillance, I am satisfied that there had been much exaggeration on the part of the plaintiff as to her resultant disability.

63. The videos showed that both in 2005 and 2007, the plaintiff could walk in public without the slightest need of a walking stick.  This is in direct contrast with both her visits to the clinics of Dr Au (5 June 2006) and Dr Chun (11 May 2006) when she claimed that she had to use a walking stick because of the persistent pain in her back and her lower limbs.  That can only be due to exaggeration on the part of the plaintiff.

64. Moreover, the plaintiff told Dr Au that she was a non-smoker in June 2006 when she was videoed in September 2005 to be smoking in the street.  Her explanation when asked this in cross-examination was that she only started smoking after the accident.  That cannot explain her claim to be a non-smoker to Dr Au in June 2006 when by then she was already a smoker.

65. Given such exaggeration by the plaintiff, the opinion expressed by Dr Au cannot be an accurate assessment.  Indeed, Dr Au found at least three non-organic signs but which he expressed to be the body language of the plaintiff.  Very fairly, Dr Au did say that others would have interpreted those as symptom magnification.

66. I can only conclude that they were symptom magnification by the plaintiff.

67. Given the above reasons, which indeed support the features of exaggeration expressed by Dr Chun, I have no difficulty accepting the opinions of Dr Chun over those of Dr Au where they differ.  I find that the plaintiff did suffer from some back pain from the accident, but not to the degree claimed by her.

68. Having stated the above, it is also clear that the opinions given by Dr Chun go only to the orthopaedic condition of the plaintiff.  They do not touch on the plaintiff’s psychiatric condition since that would not be within the field of expertise of Dr Chun.

69. As for the plaintiff’s psychiatric condition, the only evidence of that before me comes in the form of the two psychiatric reports from West Kowloon Psychiatric Centre, both prepared by Dr C.C. Lee, Consultant Psychologist.

70. I accept what was stated in those two reports, namely, that the plaintiff did suffer from adjustment disorder with depressive mood some time around February 2006 when she first attended the West Kowloon Psychiatric Centre.  Later that diagnosis was revised as major Depressive Disorder but by April 2008, her mood had improved substantially after the dosage of antidepressant had been increased.

71. In so far as causation is concerned, I take note of the fact that it was stated in the first report from Dr C.C. Lee that the plaintiff’s emotional problems started after the accident.

72. That has not been disputed by the defendant in the absence of any psychiatric report relied on by the defendant.  Instead, it was the opinion of Dr Chun that the plaintiff’s complaints of low back pain and lower leg symptoms were likely to be psycho-socially related.

73. I therefore find on the evidence before me that the plaintiff’s psychiatric condition was caused by the accident, albeit perhaps indirectly.

74. Based on the above findings, I would assess $250,000 to be reasonable compensation to the plaintiff under this head.

Pre-trial loss of earnings

75. Before the accident, the plaintiff was on a three-month probation period working as a care attendant with the defendant.

76. Her basic salary was $6,000 per month.  She was supplied with meals by the defendant which would be worth $900 per month.  She was also given an attendance bonus of $500 per month.

77. In the absence of any evidence to suggest that the plaintiff would not be able to earn her attendance bonus, the total monthly income of the plaintiff would work out to be $7,400 per month.

78. The plaintiff’s employment with the defendant was terminated on 31 December 2006.

79. Although both orthopaedic experts were of the opinion that the plaintiff could return to her pre-accident employment, that opinion was given from the orthopaedic aspect and did not take account the psychiatric aspect.

80. Given that the psychiatric condition of the plaintiff was that it deteriorated from adjustment disorder with depressive mood from some time in February 2006 to a major depressive disorder, and that the plaintiff’s mood only substantially improved in mid-April 2008, I am of the view that in the light of that psychiatric condition, it was likely that the plaintiff could not have worked during the entire pre-trial period, the trial of this matter being in June 2008.  Some support for that would be found from the fact that the plaintiff was still on sick leave due to her psychiatric condition at the time of trial.

81. Accordingly pre-trial loss of earnings will be assessed at $7,400 x 41.5 months giving $307,100.00.  The 41.5 months will cover the period up to judgment in this case.

Special damages

82. Special damages have been agreed at $35,000 covering medical expenses, travelling and tonic food.

Future loss of earnings

83. In view of the fact that the pre-trial loss of earnings would have covered a period up to judgment in this case, and which is some four months beyond the plaintiff’s last consultation at the West Kowloon Psychiatric Clinic in mid-April 2008, when her mood was described by Dr C.C. Lee to have substantially improved, those extra four months should see the plaintiff through her depressive episode.

84. Once that is taken care of, her orthopaedic condition should not hinder her any further from returning to work.

85. Accordingly, there will be no loss of future earnings assessed or awarded to the plaintiff.

Loss of earnings capacity

86. Given the findings on the plaintiff’s medical condition, the chance of her suffering any real risk of handicap in the labour market is not great.

87. However, since at the time of judgment, there is still no conclusive evidence that her psychiatric condition has totally dissipated, although the evidence certainly is pointing in that direction, there will be a nominal award of $40,000 which will cover the plaintiff in the event that she will suffer some handicap in the labour market due to her psychiatric condition taking slightly longer to totally recover.

INTEREST

88. Interest will be awarded for the award for PSLA at 2% p.a. from date of Writ.

89. Interest on pre-trial loss of earnings and special damages will be awarded at half judgment rate from the date of accident.

DEDUCTION

90. The amount of $183,893.00 being ECC compensation already received by the plaintiff will be deducted from the final amount assessed together with interest.

SUMMARY

91.

CONCLUSION

92. There will be judgment for the plaintiff against the defendant in the sum of $505,321.00.

COSTS

93. In view of the amount recovered by the plaintiff, which is far below the jurisdiction of the District Court, there will be a costs order nisi that the defendant pays the plaintiff her costs of this action to be taxed on District Court scale if not agreed.

94. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.