WAI MEI LING v. HEEP HONG SOCIETY

HCPI 393/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 393 OF 2006

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Dates of Hearing : 10–13, 20 and 26–27 June 2008

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J U D G M E N T

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1. The plaintiff claims damages arising out of an accident which occurred on 21 October 2003 when the plaintiff sustained injuries to her back while performing her duties under employment with the defendant.

2. The plaintiff was employed as an enrolled nurse by the defendant at a special school for children with physical or mental disabilities operated by the defendant called Heep Hong Society Chan Hung Hon Centre (“the Centre”).

3. The accident occurred when the plaintiff was instructed to assist a child who had cerebral palsy to exercise on a big therapy ball.  The child was placed faced down on top of the therapy ball and the plaintiff was asked to assist the child by helping him move forward and backward and from side to side at the same time keeping the child’s balance on top of the therapy ball.  During the course of this exercise, the plaintiff suffered injuries to her back when she tried to stop the child from slipping down the left side of the therapy ball.

Plaintiff’s case

4. There is no dispute that the plaintiff was employed by the defendant and started to work as an enrolled nurse at the Centre in June 2001.

5. It is also not disputed that part of the plaintiff’s duties included taking care of the children at the Centre and assisting them in exercises and training activities.

6. It is also common ground that at the time of the accident, the plaintiff was assisting a five-year-old child, Yu King Chun (“Yu”) who suffered cerebral palsy to exercise on a therapy ball.  Yu was about 3.5 feet tall and weighed around 40 lbs.  Because of his cerebral palsy, Yu had uncontrolled movements of his head and limbs.

7. It is the plaintiff’s case that when the accident happened, she was instructed by the occupational therapist to stand behind Yu who was lying face down on the therapy ball, and to stoop her body forward so as to place her both hands on the shoulders of Yu and in that way to move Yu forward and backwards as well as from side to side to exercise him.  During the course of the exercise, Yu suddenly had an uncontrolled movement causing him to slip down on the left side of the therapy ball.  As the plaintiff tried to hold onto Yu to stop him from falling off the therapy ball, she injured her back.

8. It is also the plaintiff’s case that the occasion the accident happened was the first time she had assisted Yu in performing therapy exercise with the therapy ball.  The plaintiff alleged that before the day of the accident, she had raised in a meeting with other staff of the Centre the fact that Yu (after Yu had been assigned to the plaintiff) was too heavy for her to handle and requested that another child be assigned to her.  However, that request of hers was not acceded to and she was told that if she had not even tried handling Yu, how would she know that Yu was too heavy for her.

9. The plaintiff therefore says that the defendant was negligent in that Carry Chan, the occupational therapist, who is an employee and therefore agent of the defendant, knew or ought to have known that the stooping position which the plaintiff was instructed to adopt when assisting Yu on the therapy ball would expose the plaintiff to a risk of injury.  The defendant is therefore vicariously liable for the negligence of Carry Chan so instructing the plaintiff.

10. It is also alleged by the plaintiff that the defendant had failed to provide any adequate training, supervision and/or proper instructions to the plaintiff in carrying out exercise with the therapy ball and failing to provide or maintain a safe system of work.

The defence case

11. The defence raised in this case is entirely factual.

12. In summary, the defendant says that the plaintiff has been given proper training by the defendant’s occupational therapist as well as physiotherapist as to the proper way in using the therapy ball before the accident.

13. The defendant denies that the plaintiff had ever raised the concern that Yu was too heavy for her prior to the accident or requested for another child to be assigned to her.

14. Moreover, the defendant denies that the plaintiff was instructed by Carry Chan to adopt a stooping position as alleged by the plaintiff when assisting Yu on the therapy ball.  Instead, it is the defence case that the plaintiff was instructed to adopt either a full-kneel or half-kneel position by Carry Chan, but the plaintiff failed to follow such instruction given to her.

15. In view of these factual disputes in issue between the parties, it will be necessary for me to consider each of the factual disputes in issue and to make findings of fact upon them.

Whether any proper training given to the plaintiff

16. It is common ground that the plaintiff joined the defendant in June 2001 when she was already qualified as an enrolled nurse.

17. It is the pleaded case of the plaintiff, in so far as training goes, that the defendant had failed “adequately or at all to provide training, supervision or instruction to the plaintiff as to the proper steps to be taken to overcome the foreseeable risk of injury”.

18. In her evidence in chief, the plaintiff maintained that she had never received any training, instructions or supervision as to the use of the therapy ball for exercise at any time prior to the date of the accident and that no instructions had been given her as to the posture she should adopt when carrying out exercise on the therapy ball.

19. In cross-examination, the plaintiff admitted that generally speaking, there were instructions from the defendant since she joined them in June 2001 that she should keep her back straight and to adopt a posture of kneeling or half kneeling when carrying out her work generally.  This the plaintiff confirmed was the message contained in a video prepared by the defendant and shown to all staff including the plaintiff as part of her training.

20. The plaintiff further agreed that as an experienced nurse of some 21 years, she was aware that when dealing with a child who is on the floor or at a level lower than herself, the correct position to adopt would be a kneeling or half kneeling position, but never the stooping position.  In fact, she knew that she should not adopt the stooping position as early as 1980 when she started training as a nurse and she knew that the stooping posture was dangerous.

21. The plaintiff agreed in cross-examination that the defendant did promote safety culture at the Centre by providing safety talks, seminars and demonstration as in the video Exh. D1for its staff.

22. The defendant produced as evidence of the training given to the plaintiff in respect of the therapy ball a document dated October 2003 entitled “Record of Using Therapy Equipment for Training” on which the plaintiff had signed against the “Exercise Ball”.  It was the evidence of Carry Chan that the signature of the plaintiff against the Exercise Ball showed that training had been given to the plaintiff on the use of the therapy ball and that such training was given by Raymond Yip Wai Leung (“Raymond”), the therapist employed by the defendant.

23. It was also the evidence of Carry Chan that staff of the Centre would not be allowed to use the various exercise equipment until they have received the appropriate training in respect of that equipment first.  That training is given in September/October which is the first two months of each academic year.  That is why this document had to be signed by each individual staff concerned to show what equipment they had received training for.

24. In cross examination, when the plaintiff was confronted with this documents the explanation given by the plaintiff for her signature appearing on that document was that she was told to sign on that document if she had used the therapy ball.  Initially, she said that she had used the therapy ball once in October 2003.  However, when asked by counsel for the defendant whether by that she meant that she had signed that document between the 21 October (the date of the accident) and 24 October (after which date the plaintiff no longer returned to work with the defendant), the plaintiff changed her evidence to say that since she had used that ball in 2001, therefore she signed on that document.

25. In re-examination, the plaintiff said she had received instructions from the therapist as to how she was to use the therapy ball and how she should train the child (Yu) on it.

26. When asked by her own counsel why she said in evidence that she did not receive training on the use of the therapy ball, the plaintiff said that no personal training was given to her as she was only given instructions as to how to use the therapy ball, but was not told why certain movement was needed and what therapeutic service was served by it.  It was for this reason she said in evidence that she was not given any training.

27. She was however adamant that the instructions given to her in respect of the therapy ball did not include the posture that she should adopt when using it.

28. A further piece of evidence coming from the plaintiff and which is relevant to the issue as to her training with the therapy ball is that the plaintiff agreed that in 2001 when she was given charge of a girl at the Centre, she had to carry out exercise with the girl using a smaller therapy ball than that used with Yu.

29. The plaintiff’s evidence was that in 2001 she was also not given any training about the use of the therapy ball when carrying out exercise with the girl, but that she had adopted the kneeling/half-kneeling posture with that girl on the therapy ball without anyone having to tell her the position which she should adopt because she knew to adopt that position naturally and instinctively.

30. In re-examination, when the plaintiff was asked about the girl whom she had given training to on the therapy ball in 2001, the plaintiff said that the girl was more or less the same size as Yu.

31. Taking on board all the evidence relating to this issue of training given to the plaintiff, and in particular how that evidence unfurled and changed from the plaintiff during the course of the examination, cross-examination and re-examination, it would appear at the end of the day, the plaintiff was admitting that she was aware that for lifting purposes (whether it be a child or other heavy object) she was aware that she should not adopt a stooping position which was dangerous to her and that was something which she knew generally.

32. Moreover, from the plaintiff’s evidence, it also appears that she was drawing a distinction between instructions given to her and training given to her where the therapy ball was concerned.  Seemingly, the plaintiff’s case, after her evidence given in re-examination, is that she was instructed by the therapist as to what she should do to the child when exercising a child on the therapy ball, but she was never told what position she should adopt when doing so.  Specifically, the non-adoption of the stooping position was not something that she had been made aware of by the defendant when exercising a child on the therapy ball.

33. A further distinction which the plaintiff seemingly makes from the totality of her evidence, but which has not been expressly stated by her in evidence, appears to relate to the difference in sizes of the therapy ball used by her to exercise the girl in 2001 which was a smaller therapy ball, and the blue therapy ball used by her to exercise Yu when the accident occurred on 21 October 2003.

34. The distinction appears to be that because the therapy ball used to exercise the girl in 2001 was smaller, the plaintiff was able to adopt a kneeling or half kneeling position which the plaintiff says was a natural position for her to adopt and still be able to conduct the required exercise in holding onto the girl.  On the other hand, because the blue therapy ball used to exercise Yu in October 2003 was bigger in size, she would not have been able to hold onto the shoulders of Yu in the way that she was instructed had she adopted a kneeling or half kneeling position.

35. In coming to a decision as to the factual dispute relating to this issue, I have no hesitation in accepting the evidence of the defendant that the document headed “Record of Using Therapy Equipment for Training” is as what is stated in its heading, namely a record to show which staff had been given training in respect of what equipment at the start of the school year.

36. I accept also that the plaintiff’s signature made against the “Exercise Ball” showed that she had received the appropriate training in respect of the use of the therapy ball for exercise.

37. I further find that such training would have covered the proper posture for her to adopt when using the therapy ball for exercise.

38. This is amply demonstrated by her admission that in 2001 she adopted the kneeling/ half kneeling posture when exercising the girl on the therapy ball, albeit a smaller ball then.

39. In coming to such finding, I do not accept the plaintiff’s evidence that she had adopted the kneeling or half kneeling position when carrying out exercise with the girl in 2001 on the therapy ball because it was a natural position for her to adopt.  That position was anything but natural.

What happened at time of the accident

40. This is the major factual dispute between the parties.  Two very different versions as to what happened were given by the plaintiff and the defendant in evidence.

41. It is the plaintiff’s evidence that on the date of the accident, she was instructed to assist Yu with exercise on the blue therapy ball and it was the first time ever that she had used the blue therapy ball.

42. Her evidence was that the therapist, Carry Chan, after Yu had been placed faced down on top of the therapy ball, told the plaintiff to stand behind Yu on the therapy ball, and to lean forward so as to be able to hold onto the two shoulders of Yu in front and to move Yu backwards and forwards as well as from side to side in carrying out that exercise with Yu.  She was also told not to let the legs of Yu touch the ground.  Because the plaintiff was standing at the back of the therapy ball, she had to separate her two legs in order to let the legs of Yu to be placed in between her legs.  Because the therapy ball was a large one, and the plaintiff was only 5 feet 3 inches in height, she found that the posture she was told to adopt to be awkward.

43. It was also the evidence of the plaintiff that Carry Chan told her to lean forward as much as possible and at one stage, Carry Chan even had to pull both the plaintiff’s hands further forward, so as to cause the plaintiff to lean forward even more.

44. When the plaintiff was performing the exercise with Yu in that stooping position, suddenly there was some uncontrolled movement by Yu due possibly to his cerebral palsy which resulted in Yu slipping off the left side of the therapy ball and thereby pulling the plaintiff’s body down the left side with him.  The plaintiff attempted to stabilize Yu back onto the therapy ball, but was not strong enough to do so.  The plaintiff then called out for assistance and other people in the room had to come over to assist her by helping Yu back onto his wheelchair.  At that time the plaintiff felt pain in her back and right buttock.

45. After the incident, the plaintiff says she was told by Raymond, the physiotherapist, that it was only muscle pain the plaintiff had and that some pain relief cream should relieve that pain.  According to the plaintiff other staff who were in the room when the accident happened knew thereafter that she suffered from back pain.

46. The defendant’s version as to what happened at the time of the accident came from Carry Chan, the occupational therapist of the defendant.

47. It was the evidence of Carry Chan that the class at which this accident was alleged to have happened took place at 10.30 a.m. on 21 October 2003.  Present at that class were six adults (two of whom were parents) and five children and training was given on a one-to-one basis.

48. The plaintiff was assigned to assist Yu with the exercise using the blue therapy ball, which is the largest size therapy ball at the Centre.  Yu had cerebral palsy and cannot control the movement of his limbs therefore the plaintiff had to assist Yu to move forwards and backwards as well as to both sides on the therapy ball.  That training exercise lasted about 10 to 15 minutes.

49. Yu was placed face downward on top of the therapy ball and his weight would be on the ball.  The plaintiff’s duty was to assist Yu in moving forwards, backwards and to the side while on the therapy ball.

50. Carry Chan gave evidence that before this date, the plaintiff had already been given training as to the use of the therapy ball and that training included the proper posture to be adopted by the plaintiff which was a kneeling or half kneeling position.

51. It was the evidence of Carry Chan that before the exercise with Yu started, she had demonstrated to the plaintiff kneeling or half kneeling position by the side of the therapy ball when carrying out the exercise.  After the plaintiff took over the exercise of Yu on the therapy ball, Carry Chan then moved off to another part of the room.  When Carry Chan turned her head to look back at the plaintiff conducting the exercise with Yu, she saw that the plaintiff had adopted a standing position instead of the kneeling or half kneeling posture.  Carry Chan at once reminded the plaintiff orally the correct posture to use and the plaintiff replied saying “Oh yes, I should not be standing”.  Thereafter, Carry Chan paid no further attention to the plaintiff. 

52. Up to the time that class ended, she knew of nothing untoward happening to the plaintiff or any accident, nor did the plaintiff inform her that the plaintiff had been injured.

53. It was only one or two days later when the plaintiff reported having the accident that she came to know of such alleged accident to the plaintiff.

54. Subsequently, some time around 28 October 2003, Carry Chan was asked to fill out Part 5 of an Employee Injury Report (which related to the accident to the plaintiff) and which was dated that same date.  In filling out Part 5 of that Injury Report, which related to recommendation or improvement, Carry Chan had put down :

“Colleague should keep his body close to equipment and child [should kneel down or half kneel and] use major joint to carry out training activities.”

55. The words in parenthesis were inserted by Carry Chan but according to her were written on the same occasion the rest of the words were written but after those other words had been written, therefore they had to be inserted.

56. In respect of the factual dispute relating to this issue, I make the following finding of facts.

57. I have no hesitation in rejecting the plaintiff’s evidence that Carry Chan instructed her to adopt a stooping or standing position at the start of the class when the plaintiff was shown what to do in exercising Yu on the blue therapy ball.

58. The simple reason for that finding is that the stooping position is complete taboo to a trained therapist such as Carry Chan and no such trained therapist will instruct another person to adopt such a position.  If anything a trained therapist will only do the opposite, namely to advise against adopting such a position when they see another person employing it.

59. Moreover, as suggested by counsel for the defendant, it makes no sense for the plaintiff, an experienced enrolled nurse who had received basic training to adopt such stooping position which she knows she ought not to adopt, even when told to do so.

60. In this respect, I accept the evidence of Carry Chan that she had demonstrated to the plaintiff the kneeling or half kneeling position when she was giving instructions to the plaintiff how to go about training Yu on the blue exercise ball.

61. As for the occurrence of the accident, I also find that after Carry Chan had demonstrated to the plaintiff what she should do when exercising Yu on the blue therapy ball, and after Carry Chan had moved off, for reasons best known to the plaintiff she did not follow those instructions, and in particular the demonstration by Carry Chan of the kneeling or half kneeling position, but chose to adopt the standing position when exercising Yu, which therefore required her to stoop forward.

62. I also accept Carry Chan’s evidence that there came a time when Carry Chan saw the plaintiff in the standing and stooping position while exercising Yu on the therapy ball and orally told her that she should be kneeling or half kneeling.  Although the plaintiff answered saying that she should not be standing, once again, the plaintiff must have reverted back to the standing and stooping position after she was told off by Carry Chan.

63. I accept that there may well have been some uncontrolled movement on the part of Yu while he was on the therapy ball which led to Yu slipping off on the left side of the ball.  When that happened, and while the plaintiff was in the standing and stooping position, she tried to prevent Yu from falling off the ball and in doing so sprained her back.

64. I do not however accept the plaintiff’s evidence that when that happened, she had shouted out and that event was something which everyone in the room would have been aware of.  The reason for so finding is that the sprain to the plaintiff at that time was not any major injury to her and did not cause her much pain since she was still able to return to her work and to carry out her work in the next two days which followed.  Secondly, when that happened, the plaintiff would not have wanted to draw attention to the fact that she had not followed instructions given her twice by Carry Chan in adopting the wrong posture while exercising Yu on the therapy ball.

65. As for the filling out of Part 5 of the Employee Injury Report by Carry Chan, the only relevance of the words inserted by Carry Chan would go to her knowledge of a wrong posture being adopted when the accident happened, since it is the evidence of the plaintiff that she was in that standing and stooping position when the accident happened.

66. In that respect, I accept Carry Chan’s evidence that those words were inserted because she had seen the plaintiff in a standing or stooping position and had to remind the plaintiff of the proper posture when that class was still going on, albeit that she did not know of the accident when it happened, but only learnt of it when it was reported by the plaintiff some days later.

Plaintiff’s request for swapping child

67. It was the evidence of the plaintiff that before the date of the accident, after she had been informed that she had been assigned to take care of Yu, she was concerned due to the fact that Yu had cerebral palsy and that he was of a somewhat large size in body.  The plaintiff’s concern was that she would not be strong enough to deal with Yu.

68. As a result, the plaintiff’s evidence was that she raised her concerns in this respect with another staff of the Centre, a male known as Shing Kor.  When she informed Shing Kor of her fears, Shing Kor indicated to the plaintiff that he was prepared to make a swap with the plaintiff of the girl that had been assigned to him.

69. According to the plaintiff, when the plaintiff raised this matter at a group meeting at the beginning of the school term and the fact that Shing Kor was ready to swap with her the child that he had been assigned, the response from that meeting was how would the plaintiff know that she cannot handle Yu if she had not even tried.  As a result of such response, she had no alternative but to continue with Yu as being the child assigned to her.

70. It was also the plaintiff’s evidence that immediately after the accident happened, she repeated that same request of swapping child to Carry Chan and on that occasion, it was agreed by Carry Chan for her to swap child.

71. On the other hand, the evidence from Carry Chan was that there was no request raised by the plaintiff at any of the staff meetings where the plaintiff requested to swap the child assigned to her.

72. In this respect, I accept the evidence given by the plaintiff as to the request made by her in swapping Yu who was assigned to her.  I also accept her evidence of the response she received at the meeting when this was raised by her, namely that if she had not even tried how would she know that she cannot handle Yu.

73. In so finding, and therefore rejecting the evidence given by Carry Chan, I do not go so far as to say that Carry Chan was deliberately telling an untruth to the court, but rather, I am of the view that due to the long passage of time, she has failed to remember one rather insignificant matter raised at these meetings of the staff of the Centre.  After all such a request raised by the plaintiff would have occurred in September or October of 2003.

Liability

74. In so far as the issue of liability goes, it was submitted by counsel for the plaintiff that the exercise which the plaintiff was required to assist Yu with using the therapy ball was inherently dangerous.

75. From all the evidence adduced in this case, I am unable to accept that submission that the work the plaintiff was asked to perform at the time of the accident was inherently dangerous work.

76. I find from the evidence, in particular the demonstration given by Carry Chan shown in the video (Exh. D4) of how the exercise was to be carried out, that the only risk of danger which could be said to arise from the work carried out by the plaintiff was if she, or whoever it was conducting such exercise with the therapy ball, adopted the incorrect posture.

77. Such danger was obviously foreseen by the defendant and adequate steps were taken by the defendant to ensure that the plaintiff was properly trained and instructed as to her posture when exercising Yu on the therapy ball.

78. From the findings of fact made above, I come to the conclusion that the defendant has done all that was reasonable to ensure the reasonable safety of the plaintiff by having given her proper and adequate training and instructions, in particular the proper posture to adopt when using the therapy ball for exercise.

79. I further find that there was only one cause for the accident to the plaintiff, and that was the plaintiff adopting an incorrect posture herself in total disregard to the instructions given to her.

80. In this respect, I make the further finding that the failure of the defendant to accede to the request of the plaintiff for swapping child was not a cause of the accident.  For if the plaintiff had adopted the correct posture in this case, the accident likely would not have happened even though she was exercising Yu.

81. In this respect I also note the admission by the plaintiff in cross-examination that the girl whom the plaintiff exercised with a smaller therapy ball in 2001 “was about the same size as Yu”.  From that admission, it must be clear that if the plaintiff had adopted the kneeling or half kneeling position as she did when exercising the girl in 2001, she would not have sustained the injury she did in the present accident.

82. On the facts as found by me, I am unable to say that the defendant was in breach of any of its duty owed to the plaintiff as its employee in the occurrence of the accident.

83. Nor should an employer be looked upon as an insurer for any injury arising to an employee in the course of the employment.

84. If the finger of blame has to be pointed at anyone, then it can only be at the plaintiff for failing to comply with the instructions given by the defendant to her to adopt the correct posture when carrying out the exercise with the therapy ball on Yu.  Indeed she was even reminded of the proper posture by Carry Chan just before the accident happened, but still failed to adopt the correct posture.

85. On the facts as found above, I find that the plaintiff has failed to prove its case against the defendant and therefore liability of the defendant for this accident is not established.

Contributory negligence

86. In the light of my above finding on liability, it should not be necessary for me to deal with the issue of contributory negligence.

87. However, should it be necessary for this issue to be determined for any reason, the finding of fact made above would be consistent with the conclusion that the plaintiff was herself the author of her own injuries entirely in failing to adhere to the instructions given to her as to the proper posture to adopt when exercising Yu with the therapy ball.

88. In that sense, the contributory negligence (should it arise) of the plaintiff would be 100%.

Conclusion on liability

89. For the reasons given above, the plaintiff’s claim is dismissed.  The costs of defending this action to be paid by the plaintiff to the defendant to be taxed if not agreed, the costs order being a costs order nisi.

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

Quantum

91. In the event that I should be wrong in my conclusion on the issue of liability, I shall go on to deal with the issue of quantum since I have heard the relevant evidence concerning quantum.

Injuries and treatment

92. Immediately after the accident, the plaintiff experienced pain over her lower back and right buttock region.

93. However, the pain did not incapacitate her from her work and she was still able to attend work on the two days following the accident, namely 22 and 23 October 2003, but even so, that pain in her lower back prevented her from carrying out heavy lifting work during those two days.

94. The pain gradually increased after the accident and on the night of the 22 October the plaintiff also experienced some numbness going down her right leg.

95. The plaintiff attended the Kowloon Families Clinic on 24 October and was diagnosed to be suffering from acute back strain with sciatica.  She was given analgesics as well as prescribed physiotherapy.

96. Physiotherapy was given her at Kowloon Hospital starting some two weeks after the accident but the pain did not subside.  She was then referred to the Orthopaedic Department of Queen Mary Hospital in November 2003 for further management.

97. In mid-April 2004, the plaintiff was admitted into Duchess of Kent Children’s Hospital for in-patient physiotherapy and occupational therapy.  That was followed by a prolonged course of out-patient treatment.

98. From 7 March 2006 the plaintiff started consultation at the Pain Clinic of Alice Ho Mui Ling Nethersole Hospital for pain management and was also seen by their clinical psychologist.

99. The plaintiff has been seen by a pain specialist, a clinical psychologist and later a psychiatrist at the Pain Clinic for management of her chronic pain condition and depression.

100. At the time of trial, the plaintiff was still attending physiotherapy at the Hong Kong Polytechnic University once every week.

101. Despite the above treatment given her, the plaintiff is still suffering from chronic low back pain, depression and pain disorder.

102. The reports from the government hospitals and clinics which have treated the plaintiff consistently states that although some minimal degenerative changes has been noted in her spine, no organic cause could be identified for her right leg weakness and chronic pain, which is her major symptom and not one of them could pinpoint any one pathology to explain her pain symptom.

Expert Opinion

103. Dr Paul Lam Yuk Yee (“Dr Lam”), the plaintiff’s orthopaedic expert, and Dr David H.F. Cheng (“Dr Cheng”), the defendant’s orthopaedic expert, were called to give evidence.

104. Dr Lam diagnosed the plaintiff’s present condition to be chronic low back pain which can be caused by facet joint as a result of the accident.  His prognosis of the rehabilitation prospect of the plaintiff was poor and that rehabilitation treatment should be multi-disciplinary.

105. Dr Lam was also of the view that it was unlikely for the plaintiff to return to her pre-accident employment in view of the duration of her back pain and the prolonged absence from work as well as her psychological distress.  He further took the view that the sick leave granted so far to the plaintiff was reasonable.

106. Dr Cheng, on the other hand, took the view that the plaintiff suffered only a simple uncomplicated sprain of the back from the accident. 

107. Accordingly he took the view that the prognosis of the plaintiff should be fair to good given that it was only a simple sprain of the soft tissue.  However, Dr Cheng explained that the plaintiff developed an abnormal response to her simple sprain which he termed as “somatization” and which he said was an individual’s conscious or unconscious use of the body or bodily symptoms for psychological purpose or personal gain.  It is because of the somatization that accounts for the very severe complaints of chronic pain which the plaintiff now has but for which no organic cause could be found.  Accordingly, Dr Cheng doubts if there is any good in continuing various modality of physical therapies.

108. As for the plaintiff returning to work, Dr Cheng took the view that from an orthopaedic point of view she should be able to return to her pre-accident work, but that it was only the “psychological barrier” which is making it difficult for the plaintiff to resume work.

109. As for the sick leave, Dr Cheng said that for a simple sprain injury to the back, a period of nine months sick leave would be reasonable.

110. The plaintiff was also examined by Professor  Peter  Lee (“Professor Lee”), an expert in psychology jointly instructed by both parties.  Since Professor Lee was the joint expert in psychology of both parties, his report was agreed into evidence without him being called to give evidence.

111. From his examination of the plaintiff, Professor Lee came to the view that the plaintiff was suffering from a depressed mood of a mild and periodically moderate intensity.

112. Although Professor Lee did state that one of the tests carried out on her (the MMPI-2) showed doubt being cast on the truthfulness and validity of her responses, he came to the view that the plaintiff suffered from characteristic features of a pain disorder where psychological factors have an important role in the onset, severity, exacerbation and maintenance of her pain complaints.  Moreover, the plaintiff’s psychological condition was triggered off by the “alleged” back injury against a background of, inter alia, personality problems and inept emotional and stress management.

113. However, Professor Lee also added that the accident and injury would not have triggered any similar problems in people who themselves were not highly vulnerable to begin with.

114. As for further treatment for the plaintiff, Professor Lee recommended a more intense course of 20 sessions of psycho therapy by a clinical psychologist in the private sector with expertise on managing chronic pain problems.

Pain suffering and loss of amenities

115. It seems to be common ground that the plaintiff suffered a sprain injury to her lower back at the time of the accident.  That injury developed into severe chronic back pain affecting her right lower limb as well.  No organic cause for that could be found by her treating doctors.

116. From the expert evidence, it would appear that the cause is psychological.  In this respect, there seems to be little or no difference between Dr Cheng (who terms it to be “somatization”) and Professor Lee who calls it a pain disorder.  The difference, if any, is merely one of labelling or terminology.

117. One of the plaintiff’s treating doctor, namely, Dr Dicky Chung Wai Sau (“Dr Chung”) from the Department of Psychiatry of the Alice Ho Mui Ling Nethersole Hospital, stated that he found no sign of malingering or deliberate exaggeration of her pain symptom and incapacity in his medical report dated 21 December 2007.

118. That view, however, was not shared by Professor Lee who stated at paragraph 78.3 of his medical report that at least part of the plaintiff’s current presentations, alleged pains, and incapacities were exaggerated and inconsistent.

119. The opinion of Professor Lee in this respect must prevail since his report was agreed by both parties as he was jointly instructed and both parties are therefore bound by his opinion.

120. There is one aspect relating to the diagnosis of the plaintiff’s injury which I am unable to accept from the expert evidence, which is the suggestion by Dr Paul Lam (“Dr Lam”) that her chronic back pain or its severity may be due to her facet joint.  That suggestion by Dr Lam uses the word “may”.  There is nothing definitive and more important, it goes contrary to all the rest of the medical evidence from the treating doctors who cannot find any organic cause or pathology for her severe chronic back pain.

121. It would therefore appear that the more important of the plaintiff’s impairment stems from her psychological condition, whatever that labelling of it may be.

122. I accept the submission by the plaintiff that the defendant takes its victim as it finds her in particular where the plaintiff here is a primary victim.  Therefore although there is evidence from Professor Lee that the plaintiff is more vulnerable than other people in sustaining the psychological problems leading to her present incapacity, the defendant will still have to bear full liability to the plaintiff for the injuries which result.

123. At the time of the trial, the plaintiff appeared to be still limited in her movements, albeit caused psychologically and not orthopaedic in origin, requiring both a walking stick as well as assistance from her husband to move about.

124. Given that there is exaggeration as to the plaintiff’s presentation of her symptoms, the award for pain suffering and loss of amenities will be assessed at $350,000.

Loss of pre-trial earnings

125. There is no dispute that the pre-accident earnings of the plaintiff as an enrolled nurse with the defendant was $21,160 per month.

126. That salary of the plaintiff was reduced to $20,510 per month in January 2004 and further reduced to $19,860 in January 2005 due to the defendant’s salary policy being in line with the government’s pay cuts for civil servants in 2004 and 2005.

127. As for the period of loss, I am unable to give weight to the opinion expressed by Dr Cheng that nine months sick leave would be reasonable for a simple sprain of the back.  That opinion was given only from the orthopaedic point of view and does not therefore take into account the entire condition of the plaintiff, in particular her psychological impairment which affected her more than her mere orthopaedic disability.

128. Given the state that the plaintiff was in at the time of trial, both from her orthopaedic and psychological impairment, there can be no question but that she would be entitled to full loss of earnings during the pre-trial period assessed as follows :

(a)      From accident to end of 2003, $4.437 + ($21,160 x 2 months) = $46,757;

(b)     from the whole of 2004, $20,510x12 months = $246,120; and

(c)     from January 2005 to judgment, $19,860 x 44 months = $873,840.

The total of (a) + (b) + (c) above gives $1,166717.  Adding a further 5% to take account of loss of MPF will give $1,225,053.

Special damages

129. Firstly, medical expenses totalling $77,618 is claimed.  Of that, the largest single item stems from physiotherapy at the Rehabilitation Clinic of Hong Kong Polytechnic University from November 2003 to May 2007 amounting to $74,060.

130. Those amounts having been incurred, in the absence of any evidence to show that the amounts incurred were not reasonable, the amount claimed will be allowed.

131. Secondly, $4,933 is claimed for medical accessories and medication.  Of this the largest item is for a wheelchair costing $2,820.  All the items appear to be reasonable given the circumstances of the plaintiff and will be allowed.

132. Lastly, travelling expenses totalling $30,154 is claimed.  Of that the only item disputed by the defendant appears to be a calculation error in respect of the 190 visits to the Rehabilitation Clinic of Hong Kong Polytechnic University for physiotherapy.  The calculation appears to have been worked out on 372 trips (when it should be 186, the other 4 visits being by taxi) since the unit amount used was $42.7 “per round trip”.  The correct amount for that item should be reduced accordingly from what is claimed.

133. With that one correction, the total travelling expenses comes to $22,212 which is the sum assessed for travelling expenses.

134. Total amount of special damages comes to $104,763.00.

Future loss of earnings

135. In assessing future loss of earnings, I take note that Professor Lee stated that the plaintiff has only a guarded chance for full recovery given the chronicity of her condition and the many pre-existing and longstanding personality and psychological vulnerabilities. 

136. However, Professor Lee went on to say that with completion of the recommended treatments, it may be possible that she can resume a more active but more sedentary working role.

137. The plaintiff was aged 46 at time of trial.  Given that as an enrolled nurse, her duties can at times be physically demanding, I shall adopt a multiplier of 9.

138. I accept the plaintiff’s submission that there should be full loss of earnings for the first year which will enable the plaintiff to undergo the future treatment recommended by Professor Lee.  Thereafter, for the remainder of the multiplier, loss of future earnings will be assessed on a partial basis.

139. I also accept that after the first year, the plaintiff should be able to secure alternative employment of a more sedentary nature from which it will be possible for her to earn in the region of $7,000 per month.

140. Accordingly, damages under this head is calculated as follows :

($19,860 x 12 x 1) + [($19,860 – $7,000) x 12 x 8] = $1,472,880.

Adding a further 5% to take account of MPF will give $1,546,524.

Loss of earnings capacity

141. The plaintiff also claims loss of earnings capacity.

142. Given the circumstances of her incapacity, particularly due to her psychological condition as depicted in the medical report of Professor Lee, there is some likelihood of the plaintiff suffering a risk of disadvantage in the labour market in future.  That risk however is not great.

143. Accordingly, I am prepared to assess loss of earnings capacity at $60,000.

144. This amount would translate to just over eight months of her alternative future employment, averaging therefore to be one month for each of the eight years adopted for her partial loss of earnings in future.

Cost of future treatment

145. This has been agreed between the parties at $30,000.

Deduction for ECC payment

146. There is no dispute that credit will have to be given for the amount of $686,324 being ECC payment already received by the plaintiff.