CHAN OI MING v. CHRISTIAN FAMILY SERVICE CENTRE and Another

1995, No.PI339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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J U D G M E N T

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The Plaintiff's claim

1. The Plaintiff, who was employed by the 1st Defendant as a domestic work helper claims against the two Defendants damages for injuries that she sustained while riding on a van provided by the 1st Defendant on her way to a housing estate where she was to do work for the 1st Defendant, namely domestic work for people who lived in the housing estate who required assistance with domestic chores. The claim against the 2nd Defendant is that she was a fellow employee of the 1st Defendant and was the person who opened the door of the van on 15th April 1992 which caused the Plaintiff injuries as the Plaintiff sat on one of the seats in the van.

2. In paragraph 4 of the Statement of Claim, it was specifically pleaded that at the time of the incident the Plaintiff was sitting at the back of the van on the left hand side with her left arm resting on the edge of the window. It was pleaded that the 2nd Defendant "so slided the door that it hit against the Plaintiff's left arm and the force of the impact was such as to cause the Plaintiff's body to throw backwards and hit against the back of the said van."

The Plaintiff's evidence

3. The Plaintiff gave evidence that at 2 pm on 15th April 1992 she, together with other home workers, left the Centre where they were employed and boarded the 1st Defendant's van. The van was fully loaded with people. There were two rows of seats in the van and the Plaintiff sat on the rear seat on the left near to the window. She said that the 2nd Defendant was the last person to get into the van and the 2nd Defendant was not seated on a proper seat but sat on a plastic stool next to the sliding door of the van. She said that the van started off and proceeded to the Lam Tin Estate where, near Block 10, the driver stopped the van. The 2nd Defendant then opened the door of the van to alight. The Plaintiff claimed that she was then hit by the door, and that it was her left arm which was hit by the door. She said that the front of the door hit her on the forearm and that her upper left arm then hit against the window frame. She said that her left arm had been placed near the window and she was in a sitting position leaning against the back of the seat with her two arms placed on her lap, with both arms straightened up rather than folded. She said that after the 2nd Defendant opened the door, it hit her left arm. No one said anything and neither did the Plaintiff. Then it was quiet for a brief moment and then the 2nd Defendant was stunned since the Plaintiff was hit. She said that the 2nd Defendant then opened the door of the van and alighted from the van, followed by another co-worker. The van was then driven off. She said that she felt very painful on the joint and also at the back of her left upper arm and that her left upper arm was bruised. She got off the van at the Lam Tin Estate and did some work with another co-worker at the home of an assisted person. The two of them took the assisted person to see a doctor and she, the Plaintiff, also delivered meals to another assisted person's home. She said she finished work that day at 5:30 pm.

4. The following day, 16th April 1992, she went to see a doctor at about 7 pm because she could not stand the pain in the arm any longer. She was x-rayed and some pain-killers and ointment were prescribed to her by the doctor. She was given sick leave for four days initially which was eventually extended to three months. She said that she resumed work at the 1st Defendant's Centre on 1st September 1992, but by that date she had not recovered and consequently her performance was not good because she did not have the required strength to do the chores required of her, and so there were complaints against her by some assisted persons. She said that she was dismissed on 30th October 1992 because of those complaints.

5. She said that after her dismissal she was unable to find other work due to the pain in the arm. She said she was granted sick leave by the United Christian Hospital until 31st August 1994 and that this was because of the injuries that she sustained while sitting in the van. The sick leave was from April 1992 to August 1994. She had reported initially for duty at the Centre on 2nd March 1992 and so up to the time that she began her sick leave had worked at the Centre for only three and a half months. She said that after her sick leave expired on 31st August 1994, she could not find a job because of the pain in the arm and that up to the trial she had not worked at all. She said that she still felt pain in the neck and the left shoulder and also weakness in the left arm and also numbness.

6. She admitted that she had received psychiatric treatment before the incident and that she first sought treatment in 1975. She said that she stopped receiving psychiatric treatment in 1996. She said that the incident in 1992 caused her not to trust people and she found that her face was twisted. She said that after her dismissal, there was a complete change of personality because of the injury to her left arm, coupled with the fact that she was dismissed. She admitted that after the incident she was hospitalized from August 1994 to the end of March 1996 at the United Christian Hospital and also at the Castle Peak Hospital.

7. She was cross-examined and under cross-examination she admitted that she had rested her arm against the edge of the window frame of the van. She was asked if any part of her left arm protruded out of the window frame at the time of the incident, and she said that her elbow had so protruded. She was asked how much of her left hand, especially the joint area, was protruding outside the window frame and she said about one inch. She admitted that during the journey she knew that when the van eventually stopped, the door would open. She admitted that she took no precautions, such as withdrawing her arm from the window frame, and admitted that she was not paying attention at the time. She was cross-examined about the statement that she had made for the case when she had said that after the door of the van hit against her left arm, she felt such great pain in her left arm and her left shoulder that she screamed loudly. She was asked whether that version, or the version that she gave in Court, was the right version and after pausing for a while she replied that she did not scream when inside the van.

8. The Plaintiff confirmed that from 16th April 1992 to 23rd August 1994 she was given sick leave purely because of her shoulder injury. She also confirmed that she could not find a job because of the pain in her arm and that after the accident she took up no other employment. She admitted that from 1987 onwards until the time she was employed by the 1st Defendant, she held down no jobs because of her psychiatric problem, and also that on two occasions she was admitted to the United Christian Hospital for psychiatric treatment, and these two occasions were from 21st September 1990 to 1st October 1990 and also from 9th March 1991 to 28th March 1991.

9. She was asked if she attributed all her present problems to the injuries sustained in the incident and she said "yes". She was asked if the effect of the injury was that she did not trust people any longer and that her face became twisted and her personality changed, and she confirmed that that was so. She was asked whether those conditions were caused by the injury to her left arm coupled with her dismissal, and she said "yes". She admitted that she became more irritable after her dismissal by the 1st Defendant.

10. Among the agreed documents was a letter dated 27th November 1995 from the United Christian Hospital to the solicitors previously acting for the Plaintiff. The letter mentioned that the Plaintiff was first referred to the Hospital in 1975 for Doctor Shopping for sinusitis. Neurosis was suspected by ENT surgeons but was not established by the attending psychiatrist. The Plaintiff returned to the Hospital again in 1979 for a headache that lasted for a few years. She was found to report seeing ghosts during a fire, throw temper and appeared anxious when the first wife of her cohabitant left China to Macau to reunite with her husband. Anxiety neurosis was diagnosed. She gradually began obsessive, stubborn and deprived of energy in 1984. She deteriorated further after a fire in a refuse collection room had broken out next to her estate unit. She was withdrawn, complained of chaotic thoughts, disturbing smell of turpentine and thoughts being broadcast around early 1985. She was so agitated, suspicious and paranoid when discovered to be pregnant unexpectedly that she requested to undergo termination of pregnancy. Diagnosis of schizophrenia was made. She defaulted in follow up from 1986 to 1990 despite being "distrustful" and irregularly employed. She turned up in 1990 for an accute relapse as she was allocated to another housing estate. She was angry and agitated because she believed that a higher and better housing unit was unfairly assigned to some other neighbours.

11. Some of the matters contained in that letter were put to her during cross-examination but she denied that any of these matters had any truth whatsoever. She denied that she had told the doctor in January 1985 at the United Christian Hospital that she was worried about fires. She was first admitted into United Christian Hospital for psychiatric treatment from 21st September 1990 to 1st October 1990. Her admission record was put to her and in the column "Mental State" she was described as "paranoid against the Housing Department, mildly depressed, vague, suicidal tenancy." She disagreed that that was her condition.

12. The next time she was admitted into United Christian Hospital was from 9th March 1991 to 28th March 1991. In respect of that, the Plaintiff said that the psychiatrist saw her weeping and admitted her. She did not agree that when she was admitted on 9th March 1991 she was in a paranoid state. She did not agree that it was said that she avoided her husband and was angry with him and wanted to chop him. She did not agree that she felt cheated by her husband because he had another family. She agreed that she had stopped taking medicine because she felt more confused in her mind while taking drugs.

13. She admitted that whilst she was still working for the 1st Defendant, she was still consulting the psychiatrist at the United Christian Hospital.

14. She was asked about the occasion on 6th November 1991 when she consulted the psychiatrist at the United Christian Hospital and she denied that she had told the doctor that she had worked as a security guard for a few days but she quitted because of the danger. She denied that she said that she was bored and eating a lot. She denied that she told the doctor that she was bored by engine noises at night and that people doing morning exercises looked like shadows and frightened her.

15. She attended the psychiatrist at United Christian Hospital again on 8th January 1992 but again she denied she had told the psychiatrist that she had been offended by a social worker in Ngau Tau Kok.

16. On 11th March 1992, after she had started working for the 1st Defendant, she went to the Out-Patient Department of the United Christian Hospital and there she told the doctor that she had started work as a domestic assistant for 10 days and that she enjoyed the job. She denied in cross-examination that she had said to the doctor that she was still unhappy at home. She was asked about the 1st July 1992 whilst she was still on sick leave whether she had said to the doctor that the employer did not recognize her sick leave, and she denied that she said this to the doctor. She admitted that from March 1992 to July 1992 medication was prescribed to her for her mental condition. She went back to United Christian Hospital for consultation on 21st October 1992 and reported to the doctor that she was still working as a domestic helper. It was put to her that there was no record whatsoever of any complaints of her shoulder causing her pain.

17. She was asked about the second occasion she was admitted, namely 9th March 1991, when the admission record had shown that she requested to sleep away from the window as she was afraid she might commit suicide. She denied that she had made such a request.

18. Certain records of some of her visits to the psychiatrist were put to her and on each occasion she denied that she had ever said any such things to the psychiatrist. Examples are : 22nd March 1991 - afraid to go to the market; 3rd July 1991 - getting upset after losing a few dollars in the market, feeling useless, not taking medication for a month or so; 11th September 1991 - feeling bored at home and looking for a job, had paranoid ideas towards housing services, easily depressed by trivial matters; 24th April 1991 - wished to escape family problem by admission, did not like household chores like cooking, hated husband, not satisfied with life except three of her children.

19. On 7th November 1992 after she was dismissed by the 1st Defendant, she was admitted to the United Christian Hospital psychiatric ward because she developed suicidal ideas after being dismissed. She disagreed that in her admission record there was nothing about her shoulder injury. It was recorded in the admission record that she displayed paranoia and she said this was related to the injury which she sustained. It was put to her that there was nothing in the records about her injury and she disagreed with that. She agreed that in the first few days after her admission she expressed she had suicidal thoughts.

20. The Patient Progress Report of 9th November 1992 was put to her and again she denied that she had said that she was angry towards her husband and wanted to separate from him and that it was unlikely that she would forgive her husband, or that she had used work to avoid her husband because she did not want to think about unhappy events. She again denied that on 7th November 1992, when she was admitted, she had said to the doctor that she felt a burden to her children. It was put to her that the records said nothing about her shoulder injury and her reply was that she knew nothing about the records.

21. The history sheet of 25th November 1992 was put to her. This was another occasion when she saw the psychiatrist and it was recorded that she planned to appeal for life long compensation from the 1st Defendant and she denied that she had said that.

22. The fourth occasion that she was admitted to hospital was from 20th June 1993 to 26th June 1993. In relation to that, she denied that it was because her mental illness had relapsed and she said that it was the judgment of the Accident and Emergency Department at United Christian Hospital that she should be admitted. She agreed in cross-examination that her admission was because her son had donated some money to the Church. The Church had reported the matter to the Police, but she denied that she had had a row with the Church.

23. The fifth time she was admitted into the United Christian Hospital was from 17th August 1994 to 19th December 1994. She admitted that during that period she was treated by the psychiatrist but not by an orthopaedic surgeon. She was asked if she had requested admission to hospital to escape her family and she denied that that was so. She was asked if she had threatened to jump from a height, and she denied that she had. It was put to her that her admission had nothing to do with her shoulder pain and the accident in April 1992 and she disagreed with that. She maintained that it had everything to do with her left shoulder injury. She admitted that she had gone on a hunger strike. She was asked why she had done that and she said that it was because of the injury that she received. She said that because her left arm was injured and she was dismissed, she lost all hope.

24. On 19th December 1994 she was transferred from the United Christian Hospital to the Castle Peak Hospital and there she stayed till 25th March 1996, a period of about 15 months.

25. She was asked if she ever stopped receiving treatment for her left shoulder and arm and she said that she did not. She confirmed that all along from 1992 until the trial, she was still regularly consulting a doctor for her injury. It was put to her that 20th July 1994 was the last time that she saw a doctor for her shoulder. In reply she said that she was admitted into United Christian Hospital in August 1994. She was asked if there was any record to show that she had consulted doctors for her physical injury and she said that the Psychiatric Department dealt with every aspect of a patient and that the Psychiatric Department could also prescribe pain-killers and physiotherapy.

26. She admitted that while she was on sick leave she was paid two-thirds of her salary for a total period of two years.

27. She summed up her case by saying that because of the injury sustained on 15th April 1992 she was unable to find any work up to the trial. She also said that she was unable to do any work because of the injury sustained. She said that she still felt discomfort, or pain, in her left shoulder and her left arm area. She said that there was pain in her shoulder and numbness in the arm. She was asked if she was able to pick up a bowl of rice in her left hand and she said she was unable to do so because the left hand had no strength. She was asked if she agreed with Dr Lau Hoi Kuen's opinion that she could work as a cashier, shop assistant or lift operator, and she said she did not agree and that physically she could not do any of those jobs. She was asked when was the last time she went to the United Christian Hospital and she said in September 1997 she had gone for treatment and she was given ointment. She was asked if she found it necessary, since September 1997, to seek further treatment and she said that she did make an appointment with the Orthopaedic Department. She was asked when her next appointment was for and she produced a document for an appointment for 9th December 1997. She was asked when was the next appointment, and she said she could get one but could not remember whether she had another appointment to see the doctor. She said that when she saw the doctor in December 1997 she did get an appointment to see the doctor again but had no idea when this next appointment was for. She insisted that she had a next appointment to see the doctor. Finally she said that she did not agree with Dr Arthur Chiang who expressed the opinion that she was able to perform light manual work, for example, light duty cleaner, cashier or sedentary factory worker.

Defence witnesses as to the facts

28. The Defence called two witnesses as to the facts - the 2nd Defendant and a witness Madam Cheung Pik Yung. The 2nd Defendant gave evidence that on the date in question the Plaintiff was seated in the van on the back row on the left side, next to her was the witness herself (2nd Defendant). According to the 2nd Defendant, Madam Cheung Pik Yung was seated also on the back row but on the right hand side. She said that she could not remember who was seated on the plastic stool on the date in question. When the van came to a stop at Block 10, Lam Tin Estate, somebody opened the van door. She could not remember who it was who had opened the door, but she said she heard the Plaintiff say "ai ya". The van door had been opened from the inside and she said it was possible that the person who sat on the plastic stool did that. She said that the Plaintiff said "ai ya" in a normal tone. She did not see what had happened. Cheung Pik Yung on her right spoke to the Plaintiff and asked her if she was alright and if she required to see a doctor and to report the matter for claiming for injury sustained at work. The Plaintiff said she was alright but she did not say what had happened to her.

29. The witness also gave evidence that after the incident the Plaintiff resumed duty in September 1992 and was dismissed by the 1st Defendant at the end of October 1992. She said that during those two months she worked in the same team as the Plaintiff but did not hear any complaints from the Plaintiff about any matter. In cross-examination she was asked who had opened the van door and she said she did not know. She was also asked who had opened the door for her to get off and she said she could not remember.

30. The next witness that the Defence called was Madam Cheung Pik Yung. She gave evidence that on 15th April 1992, in the van in which were eight workers of the 1st Defendant, she could not remember who had sat on the stool. At Block 10 of Lam Tin Estate someone got off the van but the witness could not remember who had opened the van door. She said it was not the 2nd Defendant who opened the door, the 2nd Defendant was seated next to her and she said that unless the person on the stool moved away, the passengers on the last row could not open the van door. She said that when the van door was slided open, someone got off. She heard nothing from the Plaintiff. The Plaintiff was looking at a person. She said she asked the Plaintiff whether anything had happened to her and the Plaintiff said 'no'. The Plaintiff said someone hurt her, the witness asked if she was alright and the Plaintiff said she was. The witness also testified that the person that the Plaintiff looked at was not the 2nd Defendant. The 2nd Defendant was then seated at the back of the van and the witness could not remember who had closed the door and could not remember who had got off the van.

31. She said that she and the Plaintiff worked together that day and they took an assisted person to see a doctor. She did not hear the Plaintiff complain about her arm. They did their work together and the Plaintiff did her work normally. The following day the Plaintiff returned to work and the witness worked with her. The witness heard no complaints from the Plaintiff about the injury. The witness said that for four months the Plaintiff did not come back to work and the Plaintiff returned again in mid-September for two months. She said that she worked in the same team as the Plaintiff during those two months and during that time heard no complaints from the Plaintiff about any matter.

Finding of fact on the case against the 2nd Defendant

32. On the evidence of the Plaintiff and the evidence of the 2nd Defendant and that of the witness Madam Cheung Pik Yung, I find on a balance of probabilities that it was not the 2nd Defendant but another person in the van who opened the door of the van on 15th April 1992 which resulted in the incident which caused the Plaintiff the injuries alleged. Accordingly the Plaintiff's claim as against the 2nd Defendant is dismissed.

Other evidence as to the facts

33. The Defence also called Mrs Nancy Wong Wai Mui to give evidence. Her evidence was that according to the record of the 1st Defendant, the reason for the Plaintiff's dismissal was because of her poor work attitude and performance. She gave evidence that after the Plaintiff returned to work on 1st September 1992, there were no complaints by her about her shoulder and arm. Mrs Wong testified that they had a record of complaints against the Plaintiff by people requiring assistance particularly one Madam Tsui Chiu. It was documented that the complaints were made against the Plaintiff for her work attitude. As a result, she was given a verbal warning and soon after that she was dismissed by the 1st Defendant. There was no cross-examination of this witness by the Plaintiff.

Medical evidence on Plaintiff's mental condition

34. The only witness on this aspect called by the Plaintiff was Dr Wong Chung Kwong, a psychiatrist. Dr Wong had examined the Plaintiff on two occasions, on 12th July 1997 for 21/2 hours and on 17th July 1997 for 11/2 hours. In the report prepared by Dr Wong, he expressed the opinion that the Plaintiff showed the symptom of "la belle indifference" which is a total or near total indifference to one's physical handicaps, disabilities or defects. In his evidence he explained that this was a technical term to describe a relaxed detached indifferent attitude of the person despite the fact that he apparently is suffering from very severe physical symptoms, handicaps or defects. Dr Wong in his written report also expressed the opinion that the Plaintiff was suffering from a long standing and severe personality disorder. On top of the personality disorder, the Plaintiff was found by Dr Wong to be suffering from Conversion Disorder since the accident. In his evidence he explained that Conversion Disorder was a psychiatric condition sometimes referred to as hysteria. He said that a person suffered from physical handicaps as a result of psychiatric problems, for example, a man who hates his parents may find himself paralysed in his upper limbs and that serves to stop him from acting out his feelings. He said that there would have to be a trigger to bring on Conversion Disorder and the trigger may be a trivial illness or an accident. And he said that this condition tended to occur among people with a tragic upbringing or previous psychiatric problems.

35. Dr Wong had based the above-mentioned opinion on the fact that he had observed that the Plaintiff could not move her left upper limbs during the 4 hours of examination. However, subsequently he was given by the solicitors for the Defendants a surveillance video report which showed that the Plaintiff could move her left upper limb. In view of that, Dr Wong testified that he could not maintain his previous opinion that the Plaintiff was suffering from Conversion Disorder. However he said that the Plaintiff was still left with psychiatric morbidity and that she was vulnerable throughout the period prior to the accident. He testified that the accident did cast an impact on the Plaintiff, but the impact was not sufficient to justify any further diagnostic deterioration.

36. Dr Wong had also been shown the report prepared by the psychiatrist retained by the Defence, Dr Mak Ki Yan. Dr Wong gave evidence that he would tend to support Dr Mak's report and he said that Dr Mak had said that the accident aggravated the Plaintiff's previous mental condition by 5-10%. Dr Wong said that he shared that view and thought that that would be a fair and kind way to approach the problem.

37. Under cross-examination Dr Wong said that the accident did cast an impact on the Plaintiff because if the accident did not occur, the impact would not have been there. He agreed that a 50-75% pre-accident loss of the Plaintiff's earning capacity would be fair.

38. The next medical witness called was Dr Peter W.H. Lee, a consultant clinical psychologist of the University of Hong Kong, and he was called by the Defence. Dr Lee never examined the Plaintiff but was supplied with the various medical reports and the pleadings together with the witness statements. Dr Lee's opinion was that the Plaintiff had paranoid personality disorder and that this caused much impairment to her prior to the accident in question. In his written report Dr Lee said that :

"The cumbersome litigation process, together with intensified medical attention and assessments connected with the litigation process had unfortunately also led her to focus further and more exclusively on her unrealistic hope for 'life long compensation'. The on-going unresolved litigation has also given her the excuse and refuge for further distracting herself from her real difficulties."

39. In his evidence, Dr Lee confirmed the opinion which he expressed in this written report. In his report he had said :

"The alleged minor incident should thus not be held accountable for Madam Chan's long standing psychological difficulties and unfortunate life circumstances which understandably have exerted and will continue to exert a very heavy toll on her. Her complaint of injury and debilitation should thus be assessed solely on the basis of demonstrable physical evidence. Any psychological factors which are deemed to have affected her current disabilities and/or accentuated her physical complaints are pre-existing and part and partial of Madam Chan's long standing personality make-up and vulnerabilities. These should not be confused with and be regarded as the consequences of the alleged accident."

40. Dr Lee was asked about the opinion by Dr Mak Ki Yan who had expressed the view that the Plaintiff's degree of psychiatric disability prior to the accident was around 50-75% of her total earning capacity and perhaps 5-10% higher after the alleged accident. Dr Lee was of the opinion that the accident would not have caused additional impairment to the Plaintiff.

41. The last witness who gave evidence on the Plaintiff's mental condition was a witness called by the Defence, Dr Mak Ki Yan, a psychiatrist. Dr Mak had examined the Plaintiff on 9th July 1997, 20th August 1997 and 30th September 1997. On the last occasion she was accompanied by her son. In Dr Mak's first report dated 27th November 1997, he expressed the view that since the Plaintiff's psychiatric disorder predated the accident, it confirmed his impression that the minor accident in 1992 could not have induced a major psychotic disorder. Nevertheless, he was of the opinion that the accident concerned and its aftermath could have triggered off a relapse or could aggravate the existing symptoms. In Court, Dr Mak amended that opinion a bit and said that after the accident the Plaintiff continued to attend follow-up treatment at the United Christian Hospital and she appeared to be all right but after November 1992 she had a relapse.

42. Dr Mak said in Court that taking into account everything, he estimated that the degree of severity of the Plaintiff's mental condition prior to the accident was 50-75%. He thought that it would be most unlikely that such a person would be able to hold down a job. He said that after the accident the Plaintiff became so preoccupied that he did not think she could work until the Court case was over. He expressed the view that the dismissal of the Plaintiff was more important in triggering the relapse which she suffered rather than the injury which she sustained in 1992. He therefore attributed the additional disability due to the alleged minor physical injury to be only 5-10% on top of her pre-existing condition. He was of the view that the 5-10% would not affect the Plaintiff returning to work. In Dr Mak's final report dated 14th February 1998, he expressed the opinion that the Plaintiff's psychiatric disabilities consequent to the accident per se could be limited to the period of granted sick leave, i.e. 4 1/2 months.

Medical evidence on physical injuries

43. The medical expert called by the Plaintiff on this aspect was Dr Arthur Chiang. Dr Chiang examined the Plaintiff on 23rd October 1995 at his clinic for 45 minutes. On that day the Plaintiff's complaints to Dr Chiang were as follows :

(1) Her left shoulder pain remained the same as before and was persistent.

(2) There was pain in the shoulder when she talked or moved about.

(3) She had to rely on her right upper extremity in her daily activities, for example, wringing a towel and brushing her teeth.

(4) She could not carry light weight objects in her left upper limb.

In addition to examining the patient, Dr Chiang took x-rays of the patient's neck and left shoulder. His examination of the patient and of the x-rays did not bear out the complaints which the patient had made to him. After the first examination he recommended an MRI examination. This was done on 29th December 1995 and the MRI report of the cervical spine was forwarded to Dr Chiang. The result of studying the report was that Dr Chiang said in Court that he could not label the Plaintiff as having no pain or having nothing abnormal. He could not say that she had no pain in her neck and shoulder area, but he said it was obvious that the pain was not severe. Under cross-examination, Dr Chiang agreed that even though the Plaintiff's main complaint was the shoulder area pain, he could not find any logical explanations, for example, there was no muscle wastage. He accepted that because of the Plaintiff's psychiatric problem, she could have magnified her physical problem. He agreed that if the Plaintiff had no mental problem, then her complaints might have been regarded as malingering. He agreed that he was left with a subjective complaint by the Plaintiff with no objective reasons to support the complaint. He was asked if 4 1/2 months' sick leave was adequate and he said that it was more than adequate. In Dr Chiang's second report dated 18th January 1996, he had said that the Plaintiff could perform light manual work, for example, light duty cleaner, cashier or sedentary factory worker and that the percentage loss of earning capacity was suggested to be at 15%. In Court and under cross-examination, he agreed that in view of the final conclusions that he reached regarding the Plaintiff, what he said in his second report could not stand.

44. The last witness called was Dr Lau Hoi Kuen who was called by the Defence. Dr Lau had examined the Plaintiff on 7th March 1996. He gave evidence that he observed that the Plaintiff had normal range of movement of the neck, indicating no significant pathology in the cervical spine. As regards the left shoulder, he said that for anyone not using that limb for a long time, there must be muscle wasting. On the Plaintiff's left shoulder, Dr Lau had found no evidence of muscle wasting. He said in Court that it appeared to him that the injury suffered by the Plaintiff was mild and he could not understand why it resulted in such severe disabilities. He said that if the injury was serious, the Plaintiff should not have a normal range of movement in October 1992 (when she was working for the 1st Defendant). Dr Lau expressed the view that after the Plaintiff's sick leave expired in August 1992, she should have been able to go back to work. He was cross-examined by the Plaintiff about the fact that she was still receiving treatment at the United Christian Hospital for her left arm. In reply, Dr Lau said that he was not saying that the Plaintiff could not have pain but he said that the pain that the Plaintiff had was not related to the accident or to any other orthopeadic condition.

Findings on liability

45. The Defendants accepted that in view of the evidence of the 2nd Defendant and Madam Cheung, on a balance of probabilities, it seems likely that when the van arrived at Block 10 of Lam Tin Estate, one of the employees of the 1st Defendant did open the door and by doing so accidentally hit the Plaintiff. The Defendants accepted that it was likely that the person had opened the door without first checking if it was safe to do so. I have found that on the balance of probabilities it was not the 2nd Defendant who had opened the van door. The 1st Defendant, however, as the employer of the person who did open the door is liable vicariously for the accident.

Contributory negligence

46. I find that the Plaintiff's degree of contributory negligence in this case is 20%. The reasons for that finding are :

(1) She herself admitted that she was not paying attention at the time and was thinking of something else.

(2) She was familiar with the route taken by the van and the fact that the van would stop outside Block 10 was not unexpected.

(3) There was no evidence that the van stopped suddenly and the person who opened the door did so in a sudden manner.

(4) The Plaintiff chose to place part of her hand outside the window frame when she should have realised that when the van door was opened her hand would be hit by the van door.

Findings on quantum

47. The Plaintiff was injured on 15th April 1992. She continued working for the 1st Defendant for 2 days, namely 15th and 16th April 1992. In the evening of 16th April, she went to see a doctor. She was given sick leave for 4 days. At the end of that sick leave, she was given 3 months' sick leave. She returned to work on 1st September 1992 and she was dismissed by the 1st Defendant on 30th October 1992. I accept the evidence of Madam Wong that because of the unsatisfactory work by the Plaintiff and because of her work attitude, she was dismissed by the 1st Defendant. I do not accept that the complaints against the Plaintiff were made by the people requiring assistance because the Plaintiff was incapacitated or handicapped in her work because of the injuries that she sustained during the accident. During the 2 months that she resumed working, namely September and October 1992, there was no record that the Plaintiff received any orthopeadic treatment at all. On 21st October 1992 the Plaintiff consulted the psychiatrist for her mental condition. This was 9 days before she was dismissed by the 1st Defendant. There was no record of her complaining about her physical injuries to the psychiatrist either on that day or on the previous occasion when she saw him, namely 1st July 1992. I take into account the fact that the Plaintiff was able to return to work on 1st September 1992 and continued to work continuously for 2 months until she was dismissed on 30th October 1992. I also take into account the fact that during those 2 months there was no consultation whatsoever for the physical injuries that she claimed she suffered. I therefore find that by 1st September 1992 she had almost completely recovered from the injuries sustained by her during the accident. The Plaintiff herself admitted that had she not been dismissed, she thought that she could have continued to work as a home helper. I accept Dr Mak Ki Yan's evidence that the pre-accident mental condition of the Plaintiff came to about 50-75% of her total earning capacity. I accept Dr Mak's evidence that the additional disability caused to the Plaintiff because of the injuries sustained during the accident would be around 5-10% on top of her pre-existing condition. I therefore find that the accident had the effect of aggravating the pre-existing condition of the Plaintiff to the extent of 5-10%. I accept Dr Mak's evidence that it was most unlikely that a person with a pre-accident mental condition of the Plaintiff would be able to hold down a job on a permanent basis. I also accept his evidence that the 5-10% aggravation because of the accident should not have affected the Plaintiff returning to work.

Calculation of damages

(a) Pain, suffering and loss of amenities (PSLA)

48. I assess that under this head, the Plaintiff should be awarded $100,000. I follow the case of Ip Ah-chiu v. Wong Chun-fai and another H.C.A. No 7100 of 1984, reported in the Hong Kong Law Journal 1987, p.252. In that case the Plaintiff suffered a dislocation of the right shoulder and a Pott's fracture of the left ankle and was hospitalised for 2 months. There was a slight restriction of the movement of the ankle and little residual damage to the shoulder. A total of 3% disability of the whole person was awarded and that resulted in a maximum of 10% earning disability. The Court awarded $37,000 for pain, suffering and loss of amenities. Taking into account inflation from the date of that award in March 1987, I find that that award would be equivalent to about $100,000 today.

(b) Other special damages

49. This was agreed at the sum of $4,333.

(c) Loss of past earnings

50. Under this head I calculate the loss of past earnings to commence from 16th April 1992 until 20th June 1993 when the Plaintiff suffered a relapse because of a totally unrelated incident involving a donation made by her son to a church and which resulted in the Plaintiff being hospitalised at Castle Peak Hospital from 20th June 1993 to 26th June 1993. After her discharge from hospital she went on a trip to USA from 28th June 1993 to 12th July 1993. Damages are calculated as follows : from 16th April 1992 to 20th June 1993 (excluding September and October 1992)

($5,995 + $7,065)/ 2 x 10.13 months = $66,148.90.

(d) Future loss of earnings /loss of earning capacity

51. Under this head I proceed on the basis of Dr Mak's evidence which I have accepted, namely that 5-10% disability should be added on top of the Plaintiff's pre-accident 50-75% disability. I find that, taking into account the Plaintiff's previous work history and her mental condition, it is most unlikely that she would have been able to hold down any long term job whether as a home helper or whether she was employed in other similar jobs even without the accident. I therefore decline to use a multiplier and multiplicand basis to calculate the loss of future earnings. I award $50,000 for loss of earning capacity to reflect the 5-10% aggravation. I rely on the case of Ho Yuk-lin v. Lau Ah-lung and Chan Kwai-lin [1986] 16 HKLJ 151 where an 11 year old school girl was injured in a traffic accident for which she was 25% to blame. She suffered a severely degloved right foot exposing the underlying tendon and bone, fracture of distal phalanx of big toe and fractures of second, third and fifth metatarsal bones. An immediate operation was performed which involved open amputation of all toes of the right foot and skin graft taken from the thigh. There was a second operation to improve the skin cover over the right foot. Permanent disability of the right foot representing 70% impairment of the foot and 21% impairment of the whole person. There was permanent cosmetic damage by way of scarring. No award was made by the Court for loss of future earnings but $50,000 was made for loss of earning capacity.

Summary of calculation

(a)	PSLA	$100,000.00
(b)	Other special damages	$4,333.00
(c)	Past loss of earnings	$66,148.90
(d)	Loss of future earnings/loss of earning capacity	$50,000.00
	Total	$220,481.90
	Less 20% contributory negligence	$44,096.38
	Total	$176,385.52
		===========

From this sum there has to be a deduction of $113,842.81 leaving a final total of $48,552.71. The sum of $113,842.81 is made up of $120,837.81 which was what the Plaintiff was paid from 15th April 1992 to 15th April 1994 less $6995 which was one month's wage paid to the Plaintiff in lieu of notice and 5 days annual leave. I therefore give judgment to the Plaintiff for $48,552.71 together with interest at 2% for general damages for PSLA from the date of issue of writ to today's date and 6.03% for special damages from the date of accident to date of judgment and thereafter at judgment rate.

(Peter Nguyen)

Judge of the Court of First Instance,
High Court