GURUNG MOTI KUMARI v. NEW GLORY (H.K.) LTD

DCPI 990/2018

[2021] HKDC 385

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 990 OF 2018

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JUDGMENT

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INTRODUCTION

1.  This is a hearing for assessment of damages in relation to the plaintiff Gurung Moti Kumari’s (“GMK”) claim for personal injuries suffered in a work accident on 20 August 2017 (“the Accident”). 

2.  Judgment to the extent of 95% of the liability was entered against the defendant New Glory (H.K.) Limited (“NGL”) by consent of the parties on 29 November 2018.

3.  At the assessment hearing, GMK testified and NGL called林佩玲 as defence witness.

THE PLAINTIFF’S EVIDENCE

4.  GMK was born on 17 July 1988 in Nepal.  She was educated up to high school level.  She is a native Nepalese speaker.  She can speak little English and very few Cantonese phrases.

5.  She came to Hong Kong in December 2012.  She is married but does not have any children yet.

6.  After obtaining her Hong Kong identity card, she started working for NGL as a restaurant server in August 2013.  She worked for a period of time and then resigned.  She went back to Nepal for 2 months.

7.  After returning to Hong Kong, GMK started working for NGL again on 1 June 2015 at its restaurant on Roof Top, 2/F, Golf Driving Range, South China Athletic Association, 88 Caroline Hill Road, Causeway Bay, Hong Kong (“the Restaurant”).

8.  Her duties at the Restaurant included attending customers, taking orders, serving drinks, clearing dirty glasses and dishes on the tables, moving and arranging tables and chairs.  When carrying out her job duties, she needed to use both hands.

9.  On 20 August 2017, at about 10:30 pm, in the course of work at the Restaurant, GMK was clearing a dirty table.  She picked up an empty glass and held in her left hand.  She then picked up 2 more glasses and stacked them above the one in her left hand.  In the course of doing so, all the 3 glasses suddenly broke into pieces and GMK’s left palm and fingers were injured (“the Accident”).  Her left ring finger was pierced and seriously cut by a broken glass piece.

10.  Immediately after the Accident, GMK’s left ring finger was bleeding profusely and she was in great pain.  She informed the bar tender and the supervisor about the Accident.  The supervisor instructed a Chinese colleague to accompany GMK to the hospital.  They took a taxi and went to the Accident & Emergency Department (“A&E Department”) of Ruttonjee & Tang Shiu Kin Hospitals (“RTSKH”).

11.  After examination and x-ray scan, her wound was cleaned and some tiny broken glass pieces were removed from the left ring finger.  An anti-tetanus injection was given to GMK.  The diagnosis was laceration with complete cut of left finger tendon EDP and FDS at Zone II.  She was transferred to Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for further treatment and management.  She was admitted to the Orthopaedics & Traumatology ward and surgery was done for the left finger.  After the surgery, a bandage was applied to the injured finger.  She was given painkillers and oral analgesics.  She was discharged on 22 August 2017.

12.  After discharge, GMK attended Yau Ma Tei Jockey Club Clinic (“YMTJCC”) for dressing of wound.  The stitches were removed in September 2017 at PYNEH.  She also attended PYNEH for follow up treatments. The treating doctor referred her to Queen Elizabeth Hospital (“QEH”) for occupational therapy and physiotherapy.

13.  GMK says that the pain in her left palm has reduced.  But she is still suffering from persistent pain, stiffness, numbness and weakness over the injured left finger.  The pain would aggravate in cold weather.  She has difficulty in make a fist.  She is unable to lift and carry heavy objects with the left hand.  The gripping power of the left hand has been reduced tremendously.  The left ring finger has bent inward and become curved and it cannot straighten.  The injuries to left ring finger make cooking, cleaning, washing clothes and household chores more difficult.

14.  As a result of the injuries sustained in the Accident, GMK cannot cope with the pre-accident job which required use of both hands frequently.  The pre-accident job involved strenuous manual handling works such as carrying and serving drinks to customers, clearing dirty glasses and dishes on the tables, moving and arranging tables and chairs.

15.  Since June 2018, GMK has been working at Genki Ippai Japanese Farmhouse Style Restaurant (“the Japanese Restaurant”) in Tsim Sha Tsui as a kitchen helper.  This job does not require too much physical exertion on her part.

HISTORY OF TREATMENTS

Report from Ruttonjee & Tang Shiu Kin Hospitals

16.  The report from RTSKH dated 7 January 2018 recorded GMK’s conditions and injuries when she attended the A&E Department on the day of the Accident:-

“A 1cm transverse laceration over left ring finger proximal interphalangeal volar surface with complete flexor tendon cut. Left ring finger sensation intact.

X-ray left ring finger showed no foreign body.”

Report from Pamela Youde Nethersole Eastern Hospital

17.  The report from PYNEH dated 26 June 2018 stated that GMK was admitted on 21 August 2017.  Her condition and treatment were as follows:-

“On admission, physical examination showed a left ring finger laceration on volar surface at level of proximal interphalangeal joint. X-ray did not find any fracture or foreign body.

Emergency operation was performed on 21^st August 2017.  Wound exploration revealed a complete laceration of both flexor tendons of digitorium profundus and superficialis, and partial laceration of ulnar side digital nerve.  Laceration of tendon and nerve was repaired.  She was discharged on 22^nd August 2017.”

Her condition was followed up at the out-patient clinic.  She was also referred to Physiotherapy and Occupational therapy for rehabilitation.  She had also requested to be referred to Queen Elizabeth Hospital for follow-up due to geographical reason. On subsequent follow-up, she had residual stiffness of her left ring finger. Option of operation of adhesion release offered.  She had decided for conservative treatment.  She was referred for Medical Assessment Board.”

Report from Occupational Therapy Department of Pamela Youde Nethersole Eastern Hospital

18.  GMK was referred for occupational therapy.  The report dated 14 June 2018 from the Occupational Therapy Department of PYNEH states the following:-

“The above named patient was diagnosed as laceration and she was referred to Occupational Therapy Department for flexor tendon repaired program and digital nerve program.

Ms. Gurung attended outpatient service at our department on 30 August 2017, which was 9 days after her injury.  On initial assessment, pain over left ring finger at rest was reported.  Wound was dry and stitches were in-situ.  Flexion of left ring finger was observed.  Dorsal protective splint was checked, which was prescribed previously when she was inpatient at our hospital.  Letter was written for consultation with Orthopaedic & Traumatology (O&T) department on 6 September 2017 regarding continuing Occupational Therapy treatment in Queen Elizabeth Hospital due to geographical reason.”

Report from Occupational Therapy Department of Queen Elizabeth Hospital

19.  GMK was referred by the medical officer of the Orthopaedics & Traumatology Specialist Clinic of PYNEH to the Occupational Therapy Department on 6 September 2017 for flexor tendon repaired program.  She was initially seen on 11 September 2017 and flexor tendon repaired programme was continued.

20.  The assessment on 8 January 2018 showed the followings:-

Active Range of Motion	Left Ring Finger
Metacarpal-phalangeal joint (Extension/Flexion)	0-55 degrees
Proximal interphalangeal joint (Extension/Flexion)	15-45 degrees
Distal interphalangeal joint  (Extension/Flexion)	5-20 degrees
Strength	Left	Right
Ring Finger Tip Pinch (kg)	1	3
Power grip (kg)	10	20

Joint Orthopaedic Experts’ Report dated 29 November 2017

21.  GMK was examined by orthopaedic experts Dr Wong Lok Yan, Ian and Dr Chiang Si Chung, Arthur on 12 September 2018.  A joint report dated 8 November 2018 was compiled by the 2 experts.  GMK’s complaints at the examination included:-

(a)  Left ring finger base pain.  Mild constant pain.  Increases with carrying weight, cold temperature or dipping into cold water, movement or stretching.

(b)  Left ring finger stiffness.  Especially in the morning.

(c)  Left ring finger numbness over ulnar half.

(d)  Tolerates lifting 2-3 kg with left hand for a short time.  Avoids using left ring finger.  Not on painkiller.

(e)  Independent with activities of daily living. Able to do most household jobs but with difficulty and avoids using left ring finger.  Unable to wear wedding ring on left ring finger.  Able to travel by public transport.

22.  In order to understand the 2 orthopaedic experts’ opinions, it is necessary for one to know the terminologies used by them:-

DIPJ (Distal Interphalangeal Joint) = the 1^st joint closest to the nail of the left ring finger

PIPJ (Proximal Interphalangeal Joint) = the 2^nd joint of the left ring finger immediately below the DIPJ

MCPJ (Metacarpalphalangeal Joint) = the 3^rd joint of the left ring finger below the DIPJ and PIPJ

AROM (Active Range of Movement) = GMT moving the finger all on her own to show the maximum range of movement.  It relies on one’s own effort to perform the test.  It is a subjective test.

PROM (Passive Range of Movement) = The doctor stretching the finger to the end range to test for the maximum range of movement.

Average Normal Range of Movement:-

DIPJ:	0-60 to 80 degrees
PIPJ:	0-100 degrees
MCPJ:	0-90 degrees

23.  The 2 orthopaedic experts found that 2 tendons of the left ring finger had been completely cut in the Accident ie the superficial flexor tendon (the flexor digitorum superficialis) and the deep flexor tendon (the flexor digitorum profundus).  The ulnar side of the digital nerve had been cut partially.

24.  The superficial flexor tendon mainly flexes the PIPJ and contributes to the flexion of the MCPJ.

25.  The deep flexor tendon flexes the DIPJ and contributes to the flexion of the PIPJ and MCPJ.

Dr Wong Lok Yan, Ian’s comments

26.  Dr Wong gave the following comments in the joint medical report:-

“The flexor tendon injury, in the case of Ms Gurung, falls into Zone II.  According to P.1857, Green’s Operative Hand Surgery 4^th Edition, Zone II flexor tendon injury was once referred to as “no man’s land” because of the difficulty of returning function after one or both flexor tendons had been divided in this area.  It is because two flexor tendons are running close and even crossed each other in this zone; the injury, even with successful repair, will result in scar formation and it is almost always the case that the scarring will cause adhesion of the two tendons, especially in this case when both tendons were cut.  The resulting adhesion would prevent the tendon from individual gliding and hence affects the motion and then function of the affected digit.  What was shown from examination reflected that the adhesion has set in and it affected the motion of the digit and the gliding of tendons, hence the power and motion range of the affected digit was impaired as well.

Moreover, if one of the flexor digitorum profundus tendons is impaired, it would affect the rest of the fingers because of the quadrigia effect, because the fingers share the common muscle belly and one would affect the maximum excursion of the rest of tendons.  This results in weakness of the affected hand.  Together with the stiffness of the ring finger as the result of adhesion, both gross and fine motion functions of the left hand would be impaired.

She was noted to have residual left ring finger stiffness and option of adhesion release was suggested by the treating Orthopaedic team.  I agree adhesion release, or tenolysis, is a viable option.  The operation could be performed both in private of public hospitals; to avoid unnecessary waiting time for prolonged suffering and to have the right of choosing the preferred and experienced Orthopaedic Surgeon, it is logical to have it done in private hospital; the total cost of which is about HK$50000-60000.  Post-operatively she requires intensive physiotherapy to restore the motion range and power of the digit and hence the function of the left hand; a course of about 3-4 months of physiotherapy, 2-3 sessions per week, with each session costs about HK$600-800 in private setting, is mandatory.  Of course each operation carries its own surgical risk and it is understandable that Ms. Gurung is still considering the offer.

Regarding the cut digital nerve, it is well known that even with successful repair, the sensation would not fully recover; mild residual decrease in light touch sensation is almost the rule.  While the gross motor function of the left hand may not be affected significantly as the result of the cut ulnar digital nerve of ring finger, the fine motor action would be affected.

Her signs and symptoms with residual pain, stiffness, numbness and weakness are genuine and are compatible with post injury status with cut tendons and nerve.

Orthopaedically, Ms Gurung has reached maximal medical improvement and is suitable for assessment. The prognosis is fair.  She is expected to have residual left ring finger pain, numbness, stiffness and left hand weakness especially on exertion or prolonged usage.  Both gross and fine motor actions would be impaired.

Orthopaedically, Ms Gurung is expected to have significant difficulty to resume her pre-injury work as waitress.  With residual left ring finger pain, weakness, stiffness and numbness, she is expected to have significant difficulty on frequent exertion like serving dishes and clearing tables.  Her current job that requires only checking of orders is sedentary in nature and a suitable replacement.”

27.  Dr Wong assessed GMK to be suffering from 5% whole person impairment and 5% loss of earning capacity.

Dr Chiang Si Chung’s comments

28.  Dr Chiang’s analysis was more focused on the AROM and the PROM of the ring finger joints.  He was of the view that the decreases in AROM and PROM were caused by adhesion of the repair site and stiffness in the adjacent finger joints.

29.  Dr Chiang looked at the medical notes from the O&T Department of PYNEH and noted a moderate to significant decrease in AROM of DIPJ and PIPJ and a mild decrease in AROM of MCPJ on 4 October 2017 when compared to the normal range of movement:-

DIPJ:	20-40 degrees
PIPJ:	35-50 degrees
MCPJ:	0-70 degrees

30.  While the AROM of DIPJ and PIPJ remained more or less the same, a satisfactory AROM of the MCPJ was noted at the follow-up appointment on 15 November 2017:-

DIPJ:	20-30 degrees
PIPJ:	35-55 degrees
MCPJ:	0-90 degrees

31.  At the follow-up appointment on 29 January 2018, it was noted that the AROM of the DIPJ and PIPJ were still quite limited but the PROM showed significant improvement when compared with the previous follow-up on 18 December 2017:-

	AROM	PROM
DIPJ	10-20 degrees	10-70 degrees
PIPJ	20-45 degrees	20-90 degrees

32.  Based on the improvement in PROM of the DIPJ and the PIPJ, Dr Chiang gave the following views:-

(a)  The residual stiffness in the joints of the left ring finger was likely to be mild.

(b)  The adhesion around the tendon repair site would have much reduced, ie the 2 tendons could glide more freely over each other to allow for stretching to a better end range of extension and flexion.

(c)  There was a possibility that the much limited AROM of the DIPJ and PIPJ might have also improved, ie a better range than that shown.

(d)  With the reasonably satisfactory PROM and likely a better AROM than that shown by GMK since about December 2017, the adhesion was likely to have much improved from conservative treatment.

(e)  Further improvement in the range of movement could be acquired due to the likelihood of increase in use of the left hand in performing physical activities.  The adhesiolysis that was considered at an earlier stage would not be required.

(f)  Based on the occupational therapy progress reports on 4 October 2017, 13 November 2017 and 18 December 2017, the numbness was noted to have resolved on 18 December 2017.

(g)  Since the ulnar digital nerve was partially and not completely cut, the recovery potential was good.  The numbness over the ulnar side of the left ring finger had likely been resolved.

(h)  Residual stiffness was still present in the DIPJ and PIPJ but it was mild and showed obvious improvement from the stiffness of the finger joints in early 2018.  The overall range of movement could be considered as reasonably satisfactory.

(i)  The muscle bulk of the left arm and forearm was well preserved, as reflected by the circumferential measurement, which to a certain extent suggested satisfactory manual use of the left upper limb.

(j)  The left thumb and other fingers of the left hand did not reveal abnormalities.

(k)  Based on the overall reasonably satisfactory recovery of the left ring finger injury, by estimation, the readings of the grip strength testing (by Jamar) of the left hand appeared to be lower than expected and was likely to be of a better strength than that shown, though mild decrease from the pre-injury strength could be present.

(l)  GMK had made a satisfactory overall recovery. She had reached maximal medical improvement and further treatment is not required.

(m)  Her left hand would have satisfactory capacity in handling heavy objects or performing manual activities, probably with a mild decrease in the endurance when these activities are required to be performed in a continuous and prolonged mode as compared with her pre-injury capacity.

(n)  GMK should be able to work in the pre-injury type of jobs, probably with a mild decrease in efficiency.

(o)  She is suffering 2-3% permanent impairment of the whole person and 2-3% loss of earning capacity. 

DISCUSSION

Genuineness of the plaintiff’s complaints

33.  The main dispute between the 2 sides is whether GMK could return to the pre-accident job as a restaurant server with NGL.  This to a large extent depends on the genuineness of her complaints of symptoms.  In her evidence, GMK stated that she is still suffering from pain, stiffness, numbness and weakness over the left ring finger.  Similar complaints were raised to the 2 orthopaedic experts at the joint examination on 12 September 2018.

34.  GMK maintains that she still has pain in the left ring finger. She says the pain had improved after occupation therapy and physiotherapy. After discharge from occupational therapy, she had pain again.  She told the doctor about this and she was given physiotherapy again. 

35.  I accept that GMK’s complaint of pain as genuine.  At the joint examination, she described the pain as mild and constant.  It would increase with carrying of weight, cold temperature, when dipping into cold water and upon movement and stretching.  This was supported by 2 orthopaedic experts’ physical examination.  When they tested the AROM of the MCPJ, while the result of -10-90 degrees was within the normal range, pain was reported at the end range.  Dr Wong opined that the complaint of pain is genuine and is compatible with the post injury status with cut tendons and nerve.  Dr Chiang did not express any contrary view. 

36.  Defence counsel relies on the occupation therapy report to say that GMK had no complaint of pain on 4 October 2017, 13 November 2017 and 18 December 2017 because there were entry records of “pain –ve” for those 3 days.

37.  GMK says she did not tell the occupational therapist that she did not have pain.  She explains that such entries might be caused by her lack of English communication skills. 

38.  I am unsure about how GMK communicated with the occupational therapist which resulted in such entries as “pain –ve”. But I would not reject GMK’s complaint of pain just because of those entries in the occupational therapy progress report.  On the whole, I find that the information contained in the report as being not too reliable.  In the occupational therapy progress sheet dated 11 September 2017, there was an entry of “pain: -ve at rest”.  Therefore, it is entirely unclear the entries in the occupation therapy progress report carry the meaning of “no pain at rest” or “no pain at all”.

39.  Another reason for my reservation about the occupational therapy progress report is the inconsistencies between the degrees of AROM measured by the occupational therapist and those measured by the treating doctor at PYNEH. The measurements were taken on the same dates but with significantly different results.  They are set out as follows:-

04.10.2017	Occupational Therapy Progress Report	O&T Department PYNEH
DIPJ	20-20 degrees	20-40 degrees
PIPJ	35-55 degrees	35-50 degrees
MCPJ	0-90 degrees	0-70 degrees

18.12.2017	Occupational Therapy Progress Report	O&T Department PYNEH
DIPJ	5-35 degrees	20-40 degrees
PIPJ	15-60 degrees	40-60 degrees

40.  I have more confidence in the PYNEH treating doctor’s records than in the occupational therapy progress report.

41.  Regarding the complaint of stiffness, both orthopaedic experts accepted that it is a genuine complaint.  Dr Wong was of the view that stiffness is compatible with post injury status with cut tendons and nerve.  Dr Chiang was of the view that the residual stiffness in the DIPJ and PIPJ was mild and showed obvious improvement from the stiffness of the finger joints in early 2018.

42.  As to numbness, Dr Wong said that it is a genuine complaint and is compatible with post injury status with cut tendons and nerve.  Dr Chiang relied on the occupational therapy progress report entry on 18 December 2017 stating “Numbness –ve” and concluded that likely it had resolved.  For reasons already given, I do not think the information in the occupational therapy progress report is reliable. 

43.  Dr Wong stated “it is well known that even with successful repair, the sensation would not fully recover; mild residual decrease in light touch sensation is almost the rule”.  But Dr Chiang had not responded to this view and just relied on the entry in the occupational therapy progress report for reaching a conclusion.  The joint medical report stated clearly that “examination of the left ring finger revealed tenderness along the vertical limb of scar associated with stiffness, numbness and weakness.”  GMK still complains of numbness when giving evidence in court.  If Dr Chiang’s conclusion that numbness had been resolved as early as 18 December 2017 is correct, why would GMK still complain of numbness at the joint medical examination on 12 September 2018?  Dr Chiang did not give an explanation for this and did not suggest that GMK was malingering or exaggerating her symptoms.  I am not satisfied with Dr Chiang’s conclusion and prefer the view of Dr Wong on the issue of numbness.

44.  Dr Wong opined that the complaint of weakness in the left ring finger is genuine and compatible with post injury status with cut tendons and nerve.  Based on the JAMAR Test of grip strength, Dr Chiang gave the view that the strength of the left hand appeared to be lower than expected.  It should be of better strength than that shown while a “mild decrease” from the pre-injury strength could be present.

45.  While Dr Chiang only expected a “mild decrease” in strength, the Jamar Test results showed a significant lack of strength in the left hand when compared with the right hand:

JAMAR	Right	Left
I	22	7
II	26	10
III	22	10
IV	17	8
V	18	10

46.  The JAMAR Test results certainly amounted to a significant decrease of strength instead of a “mild decrease” as described by Dr Chiang.  However, there was no explanation given by Dr Chiang as to why the results would not reflect his expectation.  Dr Chiang made no suggestion of malingering or exaggeration on the part of GMK.  As such, there is a gap between the test results and his view.  I believe the view of Dr Wong on the issue of weakness is more complete and I accept the same.

Overall impression of the 2 orthopaedic experts’ views

47.  While I appreciate Dr Chiang’s analysis based on the AROM and PROM, overall speaking I prefer the views of Dr Wong for the following reasons:-

(a)  Dr Chiang did not make any reference to the inconsistencies between the measurements of AROM by the occupational therapist and those by the treating doctor of PYNEH but relied on both for reaching his conclusion.

(b)  Dr Chiang said that the PROM of the DIPJ and PIPJ on 29 January 2018 showed significant improvement when compared with the condition at the last follow-up on 18 December 2017.  From this, he inferred that the AROM of the DIPJ and PIPJ might have also improved ie of a better range than that shown.  But Dr Chiang did not provide any explanation as to why the AROM was still rather limited.  He did not make any suggestion that GMK was withholding her effort when performing the test.

(c)  Dr Chiang gave the view that the numbness had been resolved by 18 December 2017 but did not explain why GMK still complained of numbness at the joint medical examination on 12 September 2018.

(d)  Dr Chiang gave the view that there should be a “mild decrease” of strength in the left ring finger but did not explain why the JAMAR Test results indicated a significant decrease of strength.

(e)  Dr Wong described the flexor tendon injury as a Zone II type and made reference to the “no man’s land” description in Green’s Operative Hand Surgery, 4^th Edition, but Dr Chiang did not comment on the same.

(f)  Dr Wong gave the view that “if one of the flexor digitorum profundus tendons is impaired, it would affect the rest of the fingers because of the quadrigia effect, because the fingers share the common muscle belly and one would affect the maximum excursion of the rest of tendons.”  But Dr Chiang did not comment on the possibility of this “quadrigia effect”.

(g)  Dr Wong gave the view that as a result of adhesion, “both gross and fine motion functions of the left hand would be impaired.”  But Dr Chiang apparently did not make any assessment on “the gross motion function” and “the fine motion function”.

(h)  Dr Wong said that when the digital nerve had a cut, “it is well known that even with successful repair, the sensation would not fully recover; mild residual decrease in light touch sensation is almost the rule”.  But there was not any comment from Dr Chiang on this aspect.

(i)  Dr Wong said that the complaint of residual pain is genuine but Dr Chiang did not give any specific comment on the same.

(j)  Dr Wong opined that the numbness in the left ring finger had been resolved by 18 December 2017 and the residual stiffness would be mild as early as 29 January 2018.  Looking at the medical records, it is true that the treating doctor at PYNETH gave the view that GMK’s rehabilitation was reaching plateau on 18 December 2017 and she was discharged by the occupational therapist by 29 January 2018.  But Dr Chiang did not explain why the treating doctor would still refer GMK for a short course of physiotherapy on 26 March 2018 if her symptoms were so mild.

48.  I find Dr Wong’s views to be more consistent and complete and they could explain the symptoms complained by GMK.  I accept Dr Wong’s views and find that GMK’s complaints of pain, stiffness, numbness and weakness of the left ring finger to be genuine.

Whether the plaintiff can return to the pre-accident job

49.  The pre-accident job with NGL required GMK to attend customers, take orders and serve drinks.  When serving a big group of customers, GMK would be instructed to use a serving tray.  After the customers had left, she would be required to clear dirty glasses and dishes.  Moving and arranging tables and chairs were also part of her duties.  While working for NGL, she had to show up at 12:00 noon and worked from 12:30 pm to 3:00 pm.  After that, she would have a 4-hour break.  She would resume again at 7:00 pm and finish the working day at 1:00 am.  There was no break from 7:00 pm to 1:00 am.  Such a schedule would mean that she worked about 8.5 hours a day.  She would have 4 rest days in a month and those were not necessarily Saturdays or Sundays.

50.  As a result of the injuries to the left ring finger and the residual symptoms, GMK says she cannot perform the aforesaid duties and she cannot handle heavy pots and heavy trays with food.

51.  Since June 2018, GMK has been working as a kitchen helper at the Japanese Restaurant.  She works inside the kitchen most of the time.  According to GMK, this job does not require her to deal with customers directly.  The waiters take orders from customers and input the information into a machine. The machine would then print out the ordered items.  GMK is responsible for taking the print outs to the chefs.  She would also take out the ingredients from the refrigerator and pass to the chefs for cooking.  When the food is ready, GMK would take the food to a counter where the waiters would pick up and serve to the customers.  She does not need to help with the cooking.  But when closing hour is approaching, she needs to do some light cleaning like wiping the print out machine and the tables inside the kitchen.  Her usual working hours are from 5 pm to 12 am (ie around 7 hours of work each day).  She enjoys 8 rest days in a month which are not necessarily Saturdays or Sundays.

52.  Dr Wong opined that GMK would have “significant difficulty” to return to the pre-accident job.  She would have “significant difficulty” with “frequent assertion like serving dishes and clearing tables”.  The current job which requires checking of orders is sedentary in nature and a suitable employment for her.

53.  On the other hand, Dr Chiang opined that GMK should be able to return to the pre-accident job, probably with a mild decrease in efficiency.

54.  For reasons already given, I prefer the view of Dr Wong.  Dr Chiang’s conclusion was based on his views that numbness had been resolved and there is only a “mild decrease” of strength which I do not accept.  Therefore, I reject the conclusion as well.  Besides, Dr Wong specifically identified the job aspects with which GMK would have difficulties.  But there was no such mention by Dr Chiang before he gave his conclusion.  Dr Chiang stated that GMK’s left hand “would have a satisfactory capacity in handling heavy objects or performing manual activities”.  Such an observation is clearly not supported by the JAMAR Test results.

55.  I accept that due to the residual symptoms, GMK would have difficulties with carrying heavy pots, heavy trays, clearing tables, moving chairs and setting up tables.  The pre-accident job gave her longer working hours and less rest days which might be more strenuous to her left ring finger.

56.  The pre-accident job gave GMK a monthly income of HK$13,930.28 while her monthly income from the Japanese Restaurant is about HK$11,000. There is a monthly shortfall of HK$2,930.28.  GMK agreed that the pre-accident job was a happy one and the management treated her well.  If GMK is able to return to the pre-accident, there is no reason why she would be unwilling to do so, thereby suffering a monthly income loss.

57.  NGL called its human resources manager 林佩玲 (“Lam”) as defence witness.  According to Lam, GMK was on sick leave from 21 August 2017 to 26 April 2018.  After expiration of sick leave, Lam sent GMK a message by WhatsApp asking her when she could resume working.  GMK replied that she could not return to the pre-accident job yet because her left ring finger still had pain when carrying weight.  Lam and GMK agreed that from 27 April 2018 to 25 May 2018, GMK would still be on annual leave and statutory holiday leave.  When GMK returned to NGL on 8 May 2018 to fill in the leave application form, she indicated to Lam that she would not resign but could not tell when she could resume working again.  From 26 May 2018 to 11 June 2018, GMK was on no pay leave.  On 12 June 2018, Lam sent a message to GMK by WhatsApp asking her about the arrangement from 12 June 2018 onward but there was no concrete reply from GMK.  Lam says that NGL all along was willing to let GMK return to the pre-accident job.  It was GMK not giving any firm reply.  Lam believes that the injuries sustained by GMK were not serious and she can return to the pre-accident job with NGL.

58.  As a matter of fact, GMK had started working for the Japanese Restaurant as a kitchen helper in June 2018.  I agree that she should have shown more responsibility by informing NGL clearly if she had decided not to return to the pre-accident job. 

59.  Lam also says in evidence that NGL could have considered allowing GMK to return to the pre-accident job with the same income level but with lighter duties assigned to her.  But this part of evidence was not covered in Lam’s written witness statement.  There is no evidence that an actual offer was made to GMK.  As such, Lam’s evidence does not change my conclusion that GMK would have difficulty in returning to the pre-accident job.

60.  The fact that GMK started an alternative job in June 2018, which was within 2 months after her expiration of sick leave, gives me the impression that she is not a lazy person.  Even she could not cope with the pre-accident job, she found an alternative job and reduced her income loss. She wanted to return to work and normal life.  She was not just sitting there and waiting for full compensation from NGL.

Criticism of the plaintiff’s evidence

61.  For the sake of completeness, I also deal with the criticism of GMK’s evidence by counsel for NGL.

62.  Counsel says that GMK gave the reason that she cannot return to the pre-accident job because she cannot not carry a tray with food and drinks but the surveillance video produced by NGL showed that she was carrying a tray of food while working in the Japanese Restaurant.

63.  I do not find this as valid criticism.  GMK’s evidence was that she cannot carry a “heavy” tray of food and drinks. She did not say she cannot carry any tray of food.  I understand her meaning was that it all depends on the weight.  In any event, she also has difficulties with carrying heavy pots, clearing tables, moving chairs and setting up tables which were part of the pre-accident job duties.  Her ability to carry a tray of food alone would not enable her to return to the pre-accident job.

64.  Counsel asked GMK in cross-examination how she would take the cooked dishes from the kitchen to the counter.  GMK replied that she would not use a tray.  She could take the cooked dishes one after the other because they would not be finished at the same time.  In the surveillance video, she was seen holding a tray with cooked dishes.  Based on this, counsel suggested that she was being contradictory.

65.  One should understand GMK’s evidence in the context.  When she was asked about the surveillance video, she gave the reply that she did not know what was shown in the video was a tray or not.  Then she said workers inside the kitchen did not use trays but she might use one if the food was hot.  Even if this amounts to a departure from her earlier answer, this would not be a significant matter that would affect GMK’s overall credibility. One would not reasonably expect a kitchen worker to hold a bowl of hot soup with bare hands.  The use of a tray for hot food is just common sense. Assessing GMK’s evidence as a whole, I understand GMK’s meaning was that workers in the kitchen generally would not use trays but she might use one when hot food needed to be transferred from one place to another.

66.  Counsel asked GMK whether she used her left hand when transferring cooked dishes from the kitchen to the counter.  GMK gave the reply “Not really … can use right hand”.  But she was seen using left hand in the surveillance video. 

67.  Once again, one should understand GMK’s evidence in the context.  It has never been the case of GMK that she cannot use her left hand at all.  The focus of this assessment hearing is whether the symptoms in GMK’s left ring finger would prevent her from carrying out the pre-accident job duties.  As I understand, GMK’s meaning was that she would prefer to use her right hand.  She was not alleging that she could never use her left hand while working at the Japanese Restaurant.  She said she could carry dishes with the left hand if they were light.  

68.  After forming my views on the medical evidence and assessing GMK’s credibility, I proceed to assess the quantum of damages.

Pain, suffering and loss of amenities

69.  GMK claims HK$150,000 for pain, suffering and loss of amenities.  This figure is not disputed by NGL. 

70.  I also think that this figure reflects the injuries and residual symptoms suffered by GMK.  I allow the same.

Pre-trial loss of earnings

71.  At the time of the Accident, GMK was earning a monthly income of HK$13,930.38 as a restaurant server for NGL.  She was on sick leave from 21 August 2017 to 26 April 2018.

72.  For assessing GMK’s pre-trial loss of earnings, counsel for NGL was prepared to allow 2 more months on top of the sick leave period, thereby giving a total period of about 10.2 months.  The full loss of earnings for this period is as follows:

HK$13,930.38 x 10.2 months = HK$142,089.88

73.  Pre-trial loss of earnings in the sum of HK$142,089.88 is agreed by GMK.  I will award this accordingly.

Future loss of earnings

74.  After expiration of the sick leave on 26 April 2018, GMK managed to secure an alternative job with the Japanese Restaurant in June 2018 which gives her a monthly income of HK$11,000.  When compared to the pre-accident job, there is a monthly income loss of HK$2,930.38 ie HK$13,930.38 - HK$11,000.

75.  NGL’s position is that GMK should be able to return to the pre-accident job from June 2018 and there should be no further loss of earnings.  This view is not accepted by me.

76.  GMK was 29 years old at the time of the Accident.  She was 30 at the time of assessment hearing.

77.  In Cheung Oi Yan Ruby v Wong Hoi Sum, HCPI 981/2007, Master de Souza was prepared to adopt a multiplier of 13 for assessing the future loss of earnings of a 34-year-old female plaintiff.  And in Wong Yan Lam v Lam Wing Kei, HCPI 439/2009, Master Woolley adopted a multiplier of 16 for a 28-year-old female plaintiff.

78.  In the Revised Statement of Damages, a multiplier of 18.5 was pleaded.  But in GMK’s written closing submissions, she made a concession and used a multiplier of 5 only.  In fairness to NGL, I would assess future loss of earnings using a multiplier of 5 as submitted by GMK:

(HK$13,930.88 - HK$11,000.00) x 12 months x 5 years = HK$175,852.80

Loss of Mandatory Provident Fund

79.  GMK’s employer would be required by law to make a 5% contribution to the Mandatory Provident Fund (“MPF”) based on her income.

80.  The loss of MPF based on her pre-trial loss of earnings would be as follows:-

HK$142,089.88 x 5% = HK$7,104.49

81.  The loss of MPF based on her future loss of earnings would be as follows:-

HK$175,852.80 x 5% = HK$8,792.64

82.  The total loss of MPF is:-

HK$7,104.49 + HK$8,792.64 = HK$15,897.13

Loss of earning capacity

83.  GMK also claims loss of earning capacity.

84.  On 10 May 2018, the Employees’ Compensation (Ordinary Assessment) Board assessed GMK to be suffering from 4% loss of earning capacity as a result of her injuries.

85.  A percentage of loss of earning capacity given by the board does not carry too much meaning.  This was highlighted by Hunter JA in Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 at 118D-E:-

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.”

86.  Dr Wong was of the view that GMK is suffering 5% loss of earning capacity.  On the other hand, Dr Chiang believed the loss of earning capacity should be 2-3%.

87.  The guiding principle for making an award for loss of earning capacity was stated in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 141:-

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market?  I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”

88.  In Chan Wai Tong v Li Ping Sum [1985] HKLR 176, at 183, Lord Fraser of Tullybelton stated the following:-

“… A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140 where Browne, L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant.”

89.  GMK and counsel for NGL agree that the award for loss of earning capacity should be HK$16,500.  I do not think such a figure is excessive and will award the same.

Special damages

90.  In the Revised Statement of Damages, GMK is claiming medical expenses in the sum of HK$6,000 and travelling expenses in the sum of HK$2,500.  This is agreed by counsel for NGL.  I allow the total figure of HK$8,500 accordingly.

91.  In GMK’s written closing submissions, she claims HK$60,000 for future medical expenses.  This is the costs for the surgery of adhesion release estimated by Dr Wong.  This item was not pleaded in the Revised Statement of Damages and the report from PYNEH dated 26 June 2018 indicated that GMK had decided for conservative treatment.  Therefore, I would not allow this claim for future medical expenses.

Summary of quantum of damages

92.  GMK has received Employees’ Compensation in the sum of HK$255,440.80 from NGL.  This should be deducted from the quantum of damages.  The court’s assessment of damages is set out as follows:-

(a) Pain, suffering and loss of amenities	HK$150,000.00
(b) Pre-trial loss of earnings	HK$142,089.88
(c) Future loss of earnings	HK$175,852.80
(d) Loss of MPF	HK$15,897.13
(e) Loss of earning capacity	HK$16,500.00
(f) Special damages	HK$8,500.00
	_____________
Sub-total:	HK$508,839.81
Less: 5% Contributory Negligence	HK$25,441.99
Less: Employees’ Compensation	HK$255,440.80
	_____________
Total:	HK$227,957.02

Interest

93.  I allow interest on the award for pain, suffering and loss of amenities at 2% per annum from the date of writ to the date of judgment and on pre-trial loss of earnings, loss of MPF on pre-trial loss of earnings and pre-trial special damages at half judgment rate from the date of the Accident.  In view of the fact that the amount of Employees’ Compensation HK$255,440.80 exceeds the total amount of pre-trial damages, interest on all pre-trial damages will only be awarded up to the date on which the Employees’ Compensation was paid to GMK.

Costs

94.  There be a costs order nisi that NGL do pay GMK costs for the assessment of damages (including all costs reserved), to be taxed if not agreed.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.

95.  Lastly, I thank counsel for NGL for his assistance.