KAN SHUI LAI JOELY v. HOSPITAL AUTHORITY, the Body Corporate having management and control of POK OI HOSPITAL

HCPI 978/2016

[2021] HKCFI 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 978 OF 2016

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J U D G M E N T

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1.  The plaintiff (“Kan”) was a nurse who claims damages for injuries suffered in and arising out of the course of changing the foley catherter for an elderly patient at Pok Oi Hospital Tin Ka Ping Infirmary (“the Infirmary”) in 2013. Hospital Authority (“HA”), which had the management and control of the Infirmary at the material time, was named as the defendant.

A.      THE ALLEGED ACCIDENT

2.  The alleged accident happened on 16 September 2013.  Kan was then about 43 years old, and possessed 15 years of experience as a registered nurse after 3 years of experience as an enrolled nurse.  She had worked at the Infirmary for over 2 years.  Performing foley catheter procedure (“the Procedure”) was one of the duties in the course of a nurse’s work there.

3.  On the day in question, Kan’s shift of duty was from 7 am to 2:20 pm.  At about 12:40 pm, she was assigned to perform the Procedure for a 75-year-old female patient (“the Patient”).  Patient Care Assistant IIIA, Wong Siu Lam (“Wong”) assisted Kan.  According to Kan, the Patient suffered from dementia and was bedbound with feeding tube, tracheostomy for breathing and foley catheter.  The Patient also required limited restraint to prevent fall from the bed and her pulling off of apparatus connections.

4.  The Patient had certain extent of contractures (stiff joints) over her lower limbs.  Kan’s case is that the Patient could not spread her legs.  Therefore, the Procedure could not be performed in the normal way, namely with the Patient lying supine.  Kan had the Patient lying on her side with a view to inserting the foley from the Patient’s back.  Kan had her protective gear on, and carried out the sterilization procedure.  She then allegedly placed her left forearm on the Patient’s right hip and used her left fingers to spread apart the labia majora.  It was at this moment when the Patient suddenly moved and pressed towards Kan’s left forearm, causing her forearm to twist with it.  Kan reacted by using her left arm to try to stabilize the Patient, but felt pain over her left upper arm and shoulder at that point.  With Wong helping stabilizing the position of the Patient, the Procedure was completed.  Kan felt increased pain when she exerted force in the course of replacing a small pillow between the Patient’s legs after the completion of the Procedure.

5.  Kan finished her shift on that day.  Due to increased pain, she sought medical attention on the following day, when she also reported her alleged injury to her superior.  She has been on sick leave since then.

6.  On 5 September 2016, Kan commenced the present action on 5 September 2016.

7.  In February 2017, Kan received employees’ compensation in the sum of HK$1,741,707.23 for the work injury.

B.      THE CLAIM

8.  The statement of claim filed on behalf of Kan contained a whole array of causes of action and particulars under both statutes and common law.  During the pre-trial review, this court alerted the parties as to what appeared to be an indiscriminate formulation of contentions for the claim.  When this case came to trial, it was confirmed that only negligence and breach of employer’s duty of care will be pursued.  Plainly, the allegations constituting these two causes of action overlap.

9.  Kan alleges that the Infirmary failed to provide a safe system of work.  Specifically, it is alleged that it failed to provide adequate instructions, supervision or training to Kan for the Procedure to be performed to the Patient with lower limb contractures when the standard mode (ie with the patient lying supine) could not be adopted.  Kan alleges that the Infirmary was negligent in no materially different ways, except that it is said to have also failed to carry out any or proper assessment of the risk associated with the performance of the Procedure on patients when the normal mode could not be adopted.

10.  It is also the pleaded case of Kan that prior to the alleged accident, she had reported to her superior, Ip Yan Foon (“Ip”) and Lee Chi Kuen (“Lee”), about the situation and that the Patient was uncooperative.  It is said that the superior agreed that the Procedure could be performed from the Patient’s back if the normal mode could not be adopted.

C.      DEFENCE

11.  The allegation mentioned in the preceding paragraph is denied.  It is also pointed out that since late January 2013, the patients had been temporarily relocated to two wards, of which one was the female ward where the Patient was.  The superior of Kan at the female ward at the time was Ip whereas Lee was in charge of the male ward.

12.  The alleged accident is denied.  It is averred that the Procedure could be performed in the normal way, and no other equipment would have been necessary.  Kan had the assistance from Wong at the time. There was no time constraint.  Kan had received training, manuals and guidelines on the correct procedure and posture with respect to manual handling of patients.  Kan was sufficiently experienced.  Contributory negligence is also alleged.

13.  Mr Wong for Kan submits that should the court find that the normal way of the Procedure could not be adopted at the time for the Patient, the Infirmary would have no case in refuting the failure to provide training, instruction, guidelines or supervision for any alternative mode of the Procedure.  However, nothing prevents the Infirmary from arguing that Kan was sufficiently experienced to safely handle the situation.  This is indeed one of the bases for its plea of Kan’s own negligence.

D.      THE LAW

14.  There is no real dispute as to the principles regarding the duty to provide a safe system of work.  The duty entails the provision of safe co-workers, safe place of work, safe equipment, safe system, proper training, instruction and supervision.  A system may be adequate for the whole course of the job or may have to be modified or improve to meet foreseeable special circumstances: Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 at §§13-14; 24.  It is a question of fact in each case.

E.      ISSUES

15.  There are the following issues:

(1)  Whether the accident happened and in the manner as alleged;

(2)  Whether the Infirmary was under the duty to Kan as alleged; and, if yes, whether the Infirmary was in breach;

(3)  Whether Kan was negligent in contributing to the occurrence of the accident;

(4)  If the Infirmary is liable, the quantum of damages.

F.       WITNESSES

16.  Kan gave evidence, and called Ying Ha Fong (“Ying”) as her only witness.  The other two witnesses, Lo Yuen Ling and Chan Yuen Man, who have filed their witness statements, were not called, and their statements were therefore expunged.

17.  The Infirmary called Wong, who assisted Kan in performing the Procedure on the Patient at the time, as a witness.  Ip, Kan’s superior at the ward at the time, and Lo Yin Ying (“Lo”), Kan’s colleague at the ward at the time, also testified.  Neither of them was eye-witness of the alleged accident.  Lee Wai Shek (“Lee”) of the human resources department of HA gave evidence in respective of quantum.

G.      HOW DID KAN PERFORM THE PROCEDURE ON THE PATIENT AT THE MATERIAL TIME

18.  Kan is put to proof of the alleged accident.  According to her, it was the physical condition of the Patient at the time that caused her to assess and conclude that the normal way of performing the Procedure, ie with the Patient lying supine in bed with legs spread, was not feasible.  Hence her decision to insert the foley from the back of the Patient.  She therefore had to turn the Patient to lie on her side in bed.

19.  Mr Wong for Kan refers to the dispute as to whether the Patient was uncooperative, but submits that this is a red herring. The reason is that Kan performed the Procedure from the back of the Patient not because the latter was uncooperative but because of her contracture over the lower limbs that prevented the spread of her legs to enable the normal mode of performing the Procedure.  In my view, if this is a red herring, Kan was the one who brought about it, as it is indeed her pleaded case that the Patient was uncooperative.  That said, insofar as the alleged uncooperativeness of the Patient is subsumed in the allegation as to the inability or difficulty to spread her legs, then the only question is really whether the Patient was indeed in such a state so as to prevent the Procedure to be performed in the normal way at the time.

20.  Whilst Lo and Ip could not confirm that the Patient was suffering from dementia, they observed that the Patient lacked orientation and response at the time.  The Patient also had contracture and stiffness of the lower limbs, and the difference between the parties lies in the degree of that.  Lo and Ip ranked the Patient’s contracture at a low to medium degree.  Wong added that such condition of one leg of the Patient was worse than the other.  However, according to them, the Patient’s legs could still be spread, though not completely, so that cleaning and changing diapers could be done, albeit not easily.  They would not consider the Patient to be resistant as Kan alleges.  In case of very difficult patient, help could be arranged at the time.  Neither Lo nor Ip had personal experience in performing the Procedure on the Patient by the time of the alleged accident.  However, both of them claimed to have never heard of the way that Kan allegedly adopted in performing the Procedure on patients in the ward.

21.  Wong was supposed to an eye-witness of the alleged accident.  By the time of the alleged accident, the Patient had been under her care for some time, and she remembered the Patient.  She could not really remember the details of her work on the day of the alleged accident. However, she described that she would normally put her hands on the knees of a patient to help spread her legs, and believed she did the same when performing the Procedure on the Patient on that occasion.  She has never seen the way that Kan allegedly adopted in performing the Procedure.  Had what Kan alleged happened, she should have had impression of that.  But she did not have such impression.

22.  Mr Wong submits that the clinical notes of the Patient would have shed light on the condition of the Patient at the time, but the Infirmary has not disclosed them in this action.  He invites the court to draw adverse inference in respect of the issue of the such condition of the Patient against the Infirmary.  Wisniewski v Central Manchester Health Authority [1998] PIQR 324 at 340 and (the often cited) Li Sau Keung v Maxcredit Engineering Limited [2004] 1 HKC 434 are cited in support.

23.  Counsel confirmed during the trial that specific discovery of the clinical notes concerning the Patient has never been sought. Had that been done, the court might have been called upon to consider whether such notes should be disclosed by Infirmary, and, if yes, how, in view of data privacy concerning the Patient who is a third party.  As explained in Tjiang Siu Thu v Profield Construction Engineering Limited & Anor, CACV 156/2013 (27 May 2015), one circumstance where it will not be appropriate to draw adverse inference is where there is an explanation for the party’s failure to adduce the evidence.

24.  Wisniewski was discussed in Tjiang Siu Thu, where the appellate court explained that the judge must be persuaded by the primary facts that the inference may be drawn in the sense that it logically flows from those facts.  Insofar as the condition of the Patient at the material time was concerned, the difference between their evidence lies in the degree of the undisputed stiffness and contraction of the Patient’s lower limb as well as its impact on the performance of the Procedure in the normal way.  This court is in a position to assess the witnesses’ evidence to come to a finding of fact without having to resort to (adverse) inference as Mr Wong proposes.

25.  Mr Chan for HA challenges the inherent probability of Kan’s version.  He submits that if the Patient moved her body towards Kan at the time as alleged, Kan’s left forearm should have slipped off instead of twisted.  There was also no risk of the Patient falling off the bed, when the presence of Kan by that side of the bed would have prevented that from happening.  It appears to me that if Kan’s left forearm was then supporting the body of the Patient, who was lying on her side in bed, that Kan’s arm could twist when the Patient moved her body towards her is not an inherently improbable picture.

26.  There is no dispute that Kan did not report the alleged accident immediately.  The alleged accident happened at about 12:40 pm.  Kan admittedly finished her shift by 2:30 pm that day without reporting the alleged accident or injury to her superior.  She sought medical consultation on the following day, 17 September 2013, when she also informed Ip of the sudden pain and numbness felt in the course of the Procedure on the Patient on the previous day.  Kan filed a written report of the alleged accident on 7 November 2013 repeating the same.  In both verbal and written reports, there was no specific mention of how she performed the Procedure and its relevance to her injury.  In court, Kan explained that her original intention to set out the details on paper to be annexed to the written report was rejected by her superior.  Hence just what she wrote within the blank space provided in the prescribed form.

27.  Since 17 September 2013, Kan had attended different medical units for treatment.  The records of these medical units did not contain details of the occurrence of the alleged accident.  However, the record of Kan’s first consultation on 17 September 2013 contained reference to sprain to her left shoulder and arm while turning patient on the previous day.  The record of her consultation on 1 November 2013 contained reference to left shoulder pain in the course of the Procedure. Similar reference was found in the record of consultation dated 4 November 2013.  In the record of consultation on 18 November 2013, reference was actually made to difficult foley insertion at work.  The record dated two days later contained reference to foley insertion at back.

28.  The records on their face do suggest that Kan complained about sprain of left shoulder and arm in the course of foley work involving turning of the patient and/or difficulty.  Limited corroborative effect as they may serve, not contradicting what Kan alleges these records are.

29.  Considering all the evidence, including those specifically discussed above, I am prepared to believe that Kan assessed that it was not feasible to perform the Procedure on the Patient the normal way, and therefore decided to turn the body of the Patient with a view to inserting the foley from the Patient’s back on the day in question.

H.      CAUSE OF THE ACCIDENT/ INJURY

30.  The reference to the condition of the Patient may explain the decision of Kan to perform the Procedure for the Patient the way it was.  However, the accident did not occur because of the adoption of this mode of the Procedure per se.  There is no plea or evidence that such mode was inherently dangerous and how it was so.

31.  Kan’s witness, Ying, was a nursing schoolmate and colleague of Kan, but not her colleague at the Infirmary at the material time. Ying was called to testify as to her own experience as a registered nurse in respect of the training she has received and the performance of the Procedure on her patients.  That was her evidence as to fact.  This court is on guard against any part of her evidence which may carry the scent of opinion about the propriety of the mode adopted by Kan in performing the Procedure at the time of the accident.

32.  Ying corroborated Kan regarding the training received in connection with the Procedure.  Essentially, she stated that there was no training or instruction to cope with situation where the normal way of performing the Procedure becomes infeasible because of the condition of the patient.  She herself had adopted the way of performing the Procedure on patients similar to what Kan did in the present case, ie turning the patient to lie by one side of the body instead of face up, and inserting the foley from the patient’s back.  In court, Ying added that there were occasions when she did so on her own without assistance.  Her experience was that 2 to 3 out of 10 patients were in such condition that the Procedure would have to be performed in such alternative mode.

33.  The evidence of Ying reinforces the observation mentioned above that turning the patient’s body to lie by one side of the body to facilitate the Procedure was not inherently dangerous for the handling nurse.  According to Ying, that was actually to reduce the risk of causing fracture to the patient by forcing her legs to spread the normal way.  Nothing suggests that Ying had ever failed to complete the Procedure on her patients in such alternative way successfully and safely. 

34.  What happened, as Kan has pleaded, that caused her injury was while performing the Procedure in this alternative way, the Patient suddenly turned her body towards her and started to press against her left arm.  Kan was forced to exert strength to support or stabilize the Patient, which caused her arm to twist.  That caused the injury.

35.  In other words, the accident did not happen because of or in the course of Kan turning the body of the Patient to lie by her side.  Nor did it happen because the balance of the body of the Patient, after having been turned to lie by her side, could not be maintained.  It was the Patient who suddenly turned her body or leaned towards Kan that caused Kan to react and injure herself.  Had the Patient not so moved, there would have been no basis for expecting the accident and injury to still happen to Kan. This forms the basis for assessing the existence and standard of the Infirmary’s duty towards Kan to prevent an accident at work like that.

I.       WHETHER THE INFIRMARY/ HA WAS IN BREACH

36.  One cannot arguably suggest that the Procedure, even performed the normal way, is a simple and easy task.  There is no dispute that the HA has provided training and published guide on performing the Procedure, and the standard mode of that would be for the patient to lie supine in bed.  There is no dispute that no training or guide has been provided for any alternative mode of performing the Procedure.  However, as discussed above, the concern in the present case is not so much about any clinical step of the Procedure, but the risk of injury to the nurse arising out of the sudden movement of the body of the patient when the Procedure was performed in the way Kan did.  The question is whether the HA was reasonably expected to provide any training, instruction and guidance to address such risk and to prevent an accident to the medical worker due to such risk in the course of performing the Procedure.

37.  There is no evidence that accident like the present one has happened before.  Nor is there suggestion from the evidence that it was or ought to have been within the knowledge or contemplation of either party that the patient might suddenly move in the course of the Procedure performed in the way similar to that adopted by Kan and thus causing risk of injury to the handling medical worker.  It would appear that even Kan was taken by surprise by the sudden movement of the Patient at the time.  As mentioned, Ying gave evidence that her experience in performing the Procedure on 2 to 3 out of 10 patients the way like how Kan did it has all been uneventful.

38.  All these highlights the narrow scope of basis for any duty on the part of the Infirmary or HA in the circumstances.  There is no dispute that HA has provided training and instructions regarding handling the weight of lifting and turning patients.  According to the evidence, the Patient was about 46 kg and therefore not of exceptional weight.  There is no allegation or evidence that Wong was not doing her job providing her assistance in a reasonable manner at the time, let alone that she was incompetent.  As Mr Wong made clear in his opening, the allegation of lack of or insufficient plant or equipment was also not pursued.

39.  In these circumstances, the principles from the authorities such as Fong Yuet Ha v Success Employment Services Ltd, CACV 100/2012 (28 December 2012); Lam Wai Chi v Project Concern Hong Kong, HCPI 78/2002 (10 April 2003); and Winter v Cardiff Rural District Council [1950] 1 All ER 519 are relevant. The degree of difficulty of the tasks in question had a material bearing on the issue of whether it might be reasonably safe to leave the tasks to the employee to apply his/ her experience and skills as well as discretion.

40.  Kan was sufficiently experienced.  As mentioned, what is relevant for the present purpose is not the performance of the clinical steps of the Procedure but the situation when the Patient suddenly moved her body in the course of the Procedure.  Mr Wong submits that the reasonable instruction or guidance should have been given to the medical workers to hold the body of the Patient firmly.  Mr Chan argues that Kan was at the time required to carry out the task which she was sufficiently experienced in doing, and with the assistance of Wong.  In the circumstances of the present case as explained above, I prefer the submission of Mr Chan to that of Mr Wong.

41.  On the basis that performing the Procedure in a way similar to that adopted by Kan was not per se unreasonable or risky to the safety of the handling medical worker, I am of the view that it was reasonably safe to leave it to an experienced handling medical worker to assess and to handle, and if necessary, obtain assistance, in stabilizing the position of the patient in the course of the Procedure as the circumstances of each case may call for.  Kan was in such a situation at the time.  In the circumstances, I do not find that the Infirmary or HA was in breach.

J.       CONTRIBUTORY NEGLIGENCE

42.  The parties’ respective case, in my view, either makes or breaks on the basis of the findings of fact.  If I am wrong in my above findings, then the basis for the liability of the Infirmary would negate any basis for contributory negligence on the part of Kan.

K.      INJURIES AND TREATMENT

43.  For left shoulder pain, Kan consulted private orthopaedist on the day following the accident.  She was prescribed medication and referred to physiotherapy.  Kan then attended the Accident & Emergency (A&E) Department of Alice Ho Miu Ling Nethersole Hospital (“NH”). Examination showed satisfactory movement of the left shoulder, elbow and wrist.  Diagnosis was sprained left shoulder and arm.

44.  When examined at the Orthopaedic Department of NH, the doctor found tenderness over Kan’s left shoulder and deceased left shoulder motion range.  There were signs of impingement and weakness of the rotator cuff muscles.  Private MRI of the left shoulder showed rotator cuff tear compatible with clinical findings.

45.  In November 2013, Kan received outpatient physiotherapy at the Tuen Mun Hospital (“TMH”).  When attending the Orthopaedic Department of NH in April 2014, there was still complaint of residual pain and limitation in motion and weakness of her left shoulder.  She was referred to the Occupation Department for rehabilitation, which started in September 2014.

46.  In the occupational evaluation in November 2014, Kan was found to have insufficient pushing and pulling strength for work at the infirmary ward, but to be able to provide general medical care and treatment such as foley procedure, wound dressing, drawing blood and vital signs checking as well as assisting patients in feeding and grooming in bed.  Job modification advice was given in January 2015.

47.  Kan also attended Chinese medical treatments in various disciplines.

48.  Due to complaint about psychological impact of the accident and treatment, Kan was also referred to the Psychiatric Department of NH in November 2014.  The diagnosis was depression.  Upon her attempt to commit suicide was discovered on 1 December 2014, Kan was admitted to the A&E department of NH with signs of sympathomimetic toxidrome with hypertension and sinus tachycardia.  Diagnosis was depression and adjustment disorder. She was discharged on 5 December 2014.  After that, Kan continued her follow-up at the various hospital departments.

49.  MRI done in 2015 suggested degeneration of the cervical and lumbar disc of Kan.  Treatment was prescribed without indication for surgery.

50.  Due to complaint about persistent and worsening multiple pain over her body, Kan was referred to the Pain Clinic of NH.  She was seen in early 2016.  During subsequent reviews until 2018, Kan still demonstrated persistent heavy sick role, fear avoidance and passing coping on husband and family for daily life activities.

51.  Sick leave has been granted since 17 September 2013.

L.      COMPLAINTS

52.  Kan complains about development of pain, numbness and weakness over multiple parts of her body including right shoulder, right hip, neck, ears, back, buttock and lower limb, which necessitated consultations in multiple medical disciplines, both conventional and Chinese. Pain and numbness extend to fingers and toes.  Pain comes even when her body is at rest.  Basic walking has become a problem, and pain would come after standing for 3 minutes.  She also does not manage relying on umbrella for support because of pain at other parts of her body.  She has to rely on wheelchair.  She is incapable of lifting weight, and pain occasioned by that caused her to complain about undue pressure at occupational therapy sessions.  Her overall strength and mobility has been compromised.  Visibility, memory, reaction, expression and organization power has dropped.  She requires assistance for personal care and daily life routines.

53.  Due to low mood and medication, her stomach ulcer has recurred.  Food intake deceased, leading to reduction in nutrition and body weight (from 110 lbs to 80 lbs), which caused further body pain.  Hence her referral to the dietetics department of the hospital.

54.  According to Kan, 80% of her time would be spent at home doing nothing and the remaining 20% of her time would be spent on attending medical follow-up.  She said she has been given to understand that continuing treatment would only serve to delay further deterioration, and that her condition is much worse than what her age should represent.

55.  The psychiatric aspect of Kan’s complaint includes poor mood, concentration, sleep and appetite.  She has developed paranoid ideas about criticism and discrimination by employer and colleagues as well as unfair treatment by the occupational therapist nurse.  Fear, concern and anxiety about her condition, job and future set in.  She had recurrent nightmares.  She becomes tearful.  There is feeling of uselessness. Matrimonial relationship has been affected.

M.     PREVIOUS CONDITIONS

56.  Kan had a previous accident at work in 2010 whereby she sustained bilateral shoulder pain.  She had sick leave for 2 months as well as medication and physiotherapy.  She is said to have recovered, and there was little residual pain.

57.  In 2012, Kan reported neck pain, for which she took sick leave from late May to mid-July as well as from late October to early November in 2012.  She managed to resume work after the sick leave.

58.  Kan also had a previous episode of depressive disorder, and received psychiatric treatment during the period between 2006 and 2009, including hospitalization for a week and outpatient psychiatric treatment for a year.  The disorder is said to have been associated with work stress and interpersonal problem.  No such symptoms were said to have arisen from her physical problems in 2010 and 2012.

N.      ORTHOPAEDIC EXPERT OPINION

59.  Kan was examined by the orthopaedic experts – Dr Andrew Miu and Dr Eric Chien engaged on behalf of Kan and HA respectively.  The examination took place on 17 December 2015.  The experts produced their joint report dated 15 February 2016.

60.  General examination showed that Kan managed to sit in satisfactory posture for 40 minutes during the interview.  She walked unaided satisfactory while gait was slow.  She stood up from sitting unaided. Single leg stand and tip-toe walking were stable.  Heel walking was mildly unsteady.  Squat was slow but full with bilateral upper limb support on table. Kan suggested general tenderness over her shoulders, cervical spine, back and right hip when examined.  But no neurological deficit was noted in her upper and lower limbs.  Waddell’s simulation tests yielded positive result on shoulder pressure, shoulder elevation and trunk rotation; and increased neck pain on vertex loading.  X-ray showed no gross abnormality of the cervical spine.

61.  Dr Miu opined that Kan suffered from severe soft tissue sprain injury of the left shoulder with tear of the rotator cuff as a result of the accident.  Dr Chien opined that the sprain was a minor one, and had reservation about the causation of the rotator cuff condition. His view of the medical evidence was that the condition could be a result of acute trauma (ie the accident) or frequent overloaded shoulder movement. However, the experts agreed that the other complaints about the neck, back, right hip and bilateral lower limb pain were probably unrelated to the accident.  They also agreed that Kan has reached maximal medical improvement.

62.  Dr Miu opined that the prognosis of Kan would at most be fair, as the left shoulder pain would most likely persist. Prolonged work could exacerbate the symptom.  Medication and physiotherapy on a necessity basis would be required.  Further deterioration might lead to consideration of surgery in the form of rotator cuff repair and decompression, which, if undergone, would entail sick leave.  Dr Chien also opined that Kan’s left shoulder residual pain would unlikely further improve.  He doubted the usefulness of further physiotherapy in the circumstances, but recommended medication on a necessity basis.  He accepted the surgery mentioned by Dr Miu as an option, if the condition further deteriorated, but doubted its usefulness to Kan, considering that the pain she complained about was not typical of rotator cuff tear and impingement.

63.  As to the sick leave period, Dr Miu endorsed that given by the treating doctors as justified, whereas Dr Chien opined that sick leave up to 1 December 2014 should suffice, in view of the static state of Kan’s shoulder and the medication and therapy prescribed up to that date.  The experts agreed that further sick leave would be necessary, if the option of future surgery was taken.  Dr Miu reckoned that such sick leave could last for 10-20 weeks with additional therapies, while Dr Chien suggested 3 months, though recovery could take up to a year.

64.  Dr Miu assessed that Kan would have significant difficulties in resuming her pre-accident work.  She should consider changing her nursing work to part-time or alternatively in a less physically demanding post such as outpatient department.  Dr Chien agreed but only on the basis of the overall multiple pain condition complained about by Kan.  Mere minor sprain of rotator cuff should recover, so that Kan would have been able to resume her nursing work, albeit with some limitation in transferring, lifting and turning patients and the need for assistance in performing heavy work.  In terms degree of impairment and loss of earning capacity, the experts gave a similar assessment of about 7%.

65.  The experts produced a further joint report dated 15 September 2016, which was prompted by the parties’ request for, if it could be so put, clarification.  The content suggests that that mainly had to do with the experts’ record of certain detail of how the accident happened (according to Kan) and their opinion in respect of the conditions complained by Kan other than her left shoulder.  It should be noted that it is now accepted on behalf of Kan that insofar as physical injury and symptoms are concerned, the accident only caused her left shoulder injury.

O.      PSYCHIATRIC EXPERT OPINION

66.  Kan was examined on 26 May 2016 by Dr Law Wun Tong and Dr Benjamin Lai engaged on behalf of Kan and HA respectively.  They produced their joint report dated 2 August 2016.

67.  The experts recorded in detail the complaints of Kan.  A summary of such complaints was set out above.  They carried out a mental state examination on her, and came to agree that Kan’s case is consistent with adjustment disorder with depressed mood.  However, they differed in respect of the extent to which Kan’s current psychiatric symptoms were attributable to the accident.

68.  According to Dr Lai, it is likely that Kan would develop another episode of depressive illness in face of stresses in life.  That was based on the previous history of depressive disorder associated with work stress and interpersonal relationship problem, the past psychiatric treatment and her unsatisfactory response to anti-depressant medication.  Then, the accident and its aftermath brought on the current depressive condition, but stressors including physical symptoms unrelated to the accident, negative experience of being hurt in occupational therapy and subjective negative experience with doctors’ opinion were unrelated to the accident.  On this basis, he advised the need for apportionment of the causation of the current depressive condition between unrelated stressors and the accident.  For the latter, he recommended 25-50%.

69.  Dr Law disagreed.  Whilst noting the previous injury and the previous psychiatric treatment that Kan has received, as well as acknowledging that Kan is probably of vulnerable personality to have mood disturbance reactive to stressors, Dr Law noted that Kan managed to cope with her normal duties without problem before the accident.  She did not have psychiatric contact or symptom before the accident.  Therefore, but for the accident, the adjustment disorder of Kan would not have developed.

70.  Regarding prognosis, Dr Lai opined that it is likely that Kan would have only minor residual psychiatric symptoms after the completion of further treatment and conclusion of the present litigation. Dr Law agreed that with further psychological intervention, many of the stressors would be resolved.  The prognosis is fair.

71.  Dr Lai opined that 3 months of sick leave when Kan was worse in her psychiatric condition would be reasonable, while Dr Law opined that 3 months of sick leave after her resumption of psychiatric treatment would be reasonable.

72.  The experts were largely ad idem about the impact of the psychiatric condition on the working capacity of Kan. Essentially, Kan is mentally capable of resuming her daily life activities and pre-accident job, and adverse impact of the psychiatric condition on her work tolerance and efficiency should be mild, at least after further treatment. Impairment and loss of earning capacity, in terms of quantification, would be about 3%.  Only that Dr Lai added again the issue of apportionment on the basis of causation mentioned above.

P.       APPORTIONMENT

73.  Causation is a matter for the court to decide.  The starting point is the principles set out in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958.  The court referred to three scenarios:

(1)  where the plaintiff would have gone through life unaffected by his pre-existing condition, in which case the defendant will be liable for all damage caused;

(2)  where there is a strong possibility that some other event or natural progression of the pre-existing condition will have brought about the plaintiff’s current condition, in which case it will be necessary to assess the degree of such possibility in deciding what reduction is appropriate in the same way as it is necessary to assess the effect of other vicissitudes of life that may abbreviate the plaintiff’s working lifespan and thus abridge his loss; or

(3)  where precipitating event will certainly have occurred at some stage in any event so that clearly an allowance has to be made out, in which case the extent will depend on when such event will have occurred.

74.  The basis of Dr Lai for raising the issue of apportionment was two-fold.  First, based on the previous history of depressive disorder associated with work stress and interpersonal relationship problem, psychiatric treatment and unsatisfactory response to anti-depressant medication of Kan, he saw the likelihood of her development of another episode of depressive illness in face of stress in life.  Second, there were multiple stressors contributing to her current depressive condition, but some of them were unrelated to the present accident.

75.  Regarding the first basis of Dr Lai, he accepted that the present accident and its aftermath brought on her current psychiatric condition.  Dr Lai did not suggest that the current depressive condition of Kan would have come about, either probably or definitely, in any event even without the accident.  The likelihood that Kan would develop another episode of depressive illness was no more than her propensity or vulnerability to stressors.  Dr Law actually shares that view.  The experts put this no higher than that.  In that case, this would just be the “thin skull” of Kan, which her opponent, if liable, will have to take as she is.

76.  Regarding the second basis of Dr Lai, as Dr Law noted, Kan had no psychiatric contact or symptom, and she managed to cope with her normal duties without problem, prior to the present accident. Dr Lai did not suggest to the effect that these unrelated stressors would have come about to cause the current psychiatric symptoms of Kan, either probably or definitely, in any event even without the present accident.  If the symptoms were triggered by the present accident, albeit aggravated to an unexpected extent due to the vulnerability or propensity of Kan, this would still be her “thin skull” that her opponent, if liable, will have to take as she is.

77.  Insofar as the psychiatric suffering of Kan is concerned, I am not satisfied that the proper basis for apportionment pursuant to the Chan Kam Hoi principles is made out.

78.  As mentioned, it is accepted on behalf of Kan that the accident only caused her left shoulder injury.  The medical evidence does not suffice to rebut Kan’s case that she had recovered from her previous bilateral shoulder injury 2 months later in 2010.  For that previous injury, the ordinary medical assessment board then assessed her loss of earning capacity to be 0.5%.  The orthopaedic experts also did not suggest the probability that the current left shoulder condition of Kan would have been the eventuality attributable to that previous injury in 2010 even in the absence of the present accident.  In fact, Dr Miu observed quite to the contrary.

79.  In the circumstances, there is no question of apportionment pursuant to the Chan Kam Hoi principles as such.

Q.      PSLA

80.  Mr Wong for Kan submits that the following cases are comparable to the condition of Kan: She Sze Nga v Yeung Ying Kit, HCPI 993/2015 (20 March 2018); Wong Man Lung Joey v Liu Tsz Ming, HCPI 135/2012 (13 August 2015); and Luk Shu Keung v Kwok Chi Shing, HCPI 848/2005 (28 February 2011).

81.  Besides the last case cited above, Mr Chan for HA also refers to the following cases: Kam Wai Ming v MTR Corp Ltd & Anor [2004] HKLRD 423; Or Chun Kwong v Fu Sau Lun [2007] HKLRD 420; Chong Ngan Seng v China Harbour Engineering Company Limited & Ors, DCPI 2078/2009 (19 December 2011).

82.  Considering the impact of the left shoulder injury as well as the resultant depression and adjustment disorder of Kan, I agree with Mr Wong that an award in the range of HK$300,000-400,000 would have been fair under this head.  Hence a sum of HK$350,000.

R.      LOSS OF EARNINGS

83.  Mr Wong accepts the psychiatric experts’ opinion that the psychiatric conditions of Kan should not prevent her from resuming her pre-accident job.  It is really her physical impairment.

84.  As mentioned, the assessments by the orthopaedic experts of the impairment and loss of working capacity suffered by Kan as a result of her left shoulder injury were similar in terms of degree.  Within such degree, Dr Miu described the difficulty faced with by Kan if resuming her pre-accident work would be significant, so that change to either part-time or posting to less physically demanding department would be preferable.  Dr Chien described that Kan would be faced with limitation in handling work including transferring, lifting and turning patients as well as heavy duties in her pre-accident work.  However, I am impressed that such limitation described by Dr Chien would probably be the least expected and tolerated in the competent discharge of the normal daily routines of the duties of a nurse.  The realistic view, I prefer, is that Kan would be unable to handle her pre-accident work unless there is adjustment of the duties and work demand.

85.  Reference is also made to the principles in Jobling v Associated Dairies Ltd [1982] AC 794.  When a victim of tort suffers a supervening illness, which is unrelated to the tort, and the effect of that would have caused the same condition as what the tort has caused the victim, the supervening illness would be said to have overtaken the victim and brought an end to any continuing loss to him caused by the tort.  In the present case, the question is whether the complaint about the other physical conditions such as the neck, right shoulder, back and hip, that was found to be unrelated to the present accident, would have by now prevented Kan from resuming her pre-accident work even in the absence of the accident.  If answered in the affirmative, Kan’s condition occasioned by the accident would have been overtaken by these other disabling conditions.

86.  As mentioned, there is no basis for suggesting that the previous injury to the left shoulder of Kan in 2010 has left her with a pre-existing condition that would have caused her the inability to continue her pre-accident work even in the absence of the accident.  The same can be said about her right shoulder.  As to the other parts of her body, Kan reported neck pain in 2012, for which she had obtained sick leave which expired in early November 2012.  She recovered and returned to work.  The complaint about neck pain next featured as part of her complaint about pain over multiple parts of her body, including her back, after the present accident.  Degeneration of the cervical and lumbar spine was detected in 2015, but not warranting recommendation for surgery.  MRI of her right hip in 2015 revealed no gross hip lesion.  For her multiple complaints, including also those about her lower limbs, she was referred to the Pain Clinic in early 2016.  That was already more than a year after her referral to psychiatric treatment and the diagnosis of depression and her attempt of suicide by the end of 2014.

87.  The orthopedic experts and the occupational therapists have not assessed whether Kan’s back and neck condition, and independent of her left shoulder condition, might have affected her ability to continue her pre-accident job even in the absence of the accident.  However, the orthopaedic experts found no neurological deficit in her upper and lower limbs.  Waddell’s signs showed positive in her trunk rotation, indicating conscious sub-optimum performance or, in a way, exaggeration.  The medical records of the pain clinic shed some light on the effect of her back and lower limb conditions, including walking tolerance.  Yet at the same time, Kan’s uncontrolled psychiatric condition prevailing then was duly noted.  The orthopaedic experts agreed that her complaints about neck, back, hip and lower limbs were not only unrelated to the present accident but also possibly of psychosomatic cause.  Whilst the psychiatric experts apparently did not in their report actually confirm the suspicion of the orthopaedic experts one way or the other, the grave doubt about whether these complaints about symptoms of other parts of her body were really physical in nature still remains.  Indeed, that also drove HA to adduce surveillance evidence in respect of Kan (as at 2018), which is also taken into account by this court (but not the experts).

88.  In my judgment, the picture presented by the evidence, properly understood in the circumstances, is that the multiple complaints about pain and physical conditions, other than the left shoulder injury, could not be viewed separately from the psychiatric interference. Exaggeration is also noticeable.  There is no solid basis for suggesting that these other physical conditions that Kan complained about, other than her left shoulder, were sufficiently real that they would have surfaced and prevented her from resuming her pre-accident work even in the absence of the present accident.

89.  Mr Wong accepts that the physical condition of Kan would not prevent her from resuming work as a nurse with adjustment to light duties as recommended by Dr Miu.  However, he submits that the court should not be theoretical when knowing of the actual situation.  The actual situation, he says, is that Kan was a full-time nurse, and her employment has not been terminated since the Accident.  Despite written recommendations in early January 2015 (upon work capacity evaluation in November 2014) of changes known by HA, there is no evidence that HA has invited or arranged Kan to resume her work with such changes.  In the circumstances, one could not expect Kan to mitigate her loss by way of resigning and seeking alternative employment.  On this basis, she should be entitled to compensation for total loss of income for the entire pre-trial period.

90.  I disagree.  The one significant element in Mr Wong’s analysis that is missing is Kan’s own case that she was (prior to the trial) incapable of any gainful employment because of her conditions, some of which, as mentioned above, are now rejected.  It is not her case that she was capable of as well as ready to take up alternative posting arranged by HA or other alternative employment.  It may be said to be unfair for HA to do nothing to accommodate her resumption of work, despite advice by the occupational therapist, whilst keeping her employed and expecting her to resume work.  However, it would be equally unfair to order HA to compensate her for total loss of earnings while her case was inability to resume work at all, which is now rejected.

91.  In my judgment, the situation of whether Kan is capable of resuming work on the basis of the evidence in respect of the relevant cause, contrary to her own case, is actual.  Only the assessment must in these circumstances involve the consideration of her resumption to employment at a certain point after her sick leave, which may be said to be theoretical.  In the circumstances, that her employment has not been terminated by HA is irrelevant.

92.  The next question is when Kan should have been able to resume work as a nurse.  As mentioned, the recommendation to HA for adjustment of duties or posting of Kan came in early 2015.  By then, Kan had just had her attempted suicide episode because of her psychiatric condition (which, as discussed above, was caused by the accident, albeit just injuring her left shoulder).  The psychiatric experts opined that Kan should have 3 months of sick leave when she was worse in the psychiatric condition or after resumption of psychiatric treatment.  Mr Chan, though for the purpose of his argument, submits that sick leave until early March 2015 should suffice.

93.  All considered, I find that it is fair to expect Kan to have been able to resume her pre-accident employment since 2016 at the latest.  Had that happened, instead of her decision not to do so, work adjustments and/or alternative posting would have had to be made, which I have no basis for doubting that HA could have made.

94.  On quantum, Mr Wong accepts the pre-accident income of a nurse like Kan set out by Lee in his witness statement, namely:

September 2013 – August 2014:	HK$46,737.38
September 2014 – August 2015:	HK$48,922.72
September 2015 – August 2016:	HK$51,195.44
September 2016 – August 2017:	HK$52,564.80

95.  For the record, Mr Wong adds that Kan’s salary from April 2018 would have increased further, but there is insufficient evidential basis for further upward adjustment for subsequent years.  However, the further calculation would not be necessary in view of the above findings.

96.  The loss of earnings from the accident to the end of 2015 would be HK$(46,737.38 x 11.5 months + 48,922.72 x 12 months + 51,195.44 x 4 months) = HK$1,329,334.27.

97.  There is no suggestion that the adjusted duties or positioning of Kan after her resumption of work as a registered nurse would have entailed reduction in what her pay scale would entitle her to.  On this basis, there should be no further award for pre-trial loss of earnings from the time when she should have resumed work.

98.  There is likewise no basis for awarding loss of future earnings.

S.      LOSS OF PENSION

99.  This would be HK$1,329,334.27 x 15% = HK$199,400.14.

T.       LOSS OF EARNING CAPACITY

100.  This is to compensate for handicap in the labour market in the form of risk of inability to maintain employment: see Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132.

101.  From the psychiatric perspective, the psychiatric experts agreed that Kan’s residual psychiatric symptoms will be minor, as they opined that many of her symptoms should be gone upon further treatment and completion of this litigation.

102.  From the physical perspective, Dr Miu made clear that Kan would be significantly disadvantaged in the labour market and a higher risk of not being able to keep her job.  Dr Chien was silent on this, but assessed a similar range of degree of loss of earning capacity as that assessed by Dr Miu.

103.  On the basis that she is being awarded compensation on the assumption that she should have resumed her pre-accident as a nurse, albeit with different duties, instead of any other alternative job, I do not think an award under this head is made out.

U.      FUTURE MEDICAL EXPENSES

104.  Mr Wong accepts that the evidence tends to show that surgery to the left shoulder rotator cuff considered by the orthopaedic experts will unlikely help Kan.  Hence her dropping of this item of claim.

105.  Both psychiatric experts recommended psychiatric treatment and/or clinical psychological intervention.  In view of the evidence, it is reasonable to afford Kan the opportunity to seek further psychiatric treatment.  I therefore disagree with Mr Chan.  Considering the experts’ recommendations, including the comparison between treatment at the public or public plus private sector, I am prepared to accept Mr Wong’s submission that a sum of HK$20,000 would be reasonable.

U.      MISCELLANEOUS SPECIAL DAMAGES

106.  In her witness statement, Kan’s evidence in respect of miscellaneous special damages was broad-brush.  Mr Wong accepts that these items of claim are not evidenced by receipts.  He asks for reasonable compensation.  I am prepared to allow that, as it must be accepted that such expenses were incurred.

107.  Rather substantial sums were claimed in respect of medical expenses, travelling expenses and nourishing food.  Mr Wong now suggests the sums of HK$40,000, HK$10,000 and HK$5,000 for these items respectively.  I find them to be reasonable.

108.  Future travelling expenses for attending medical appointments are claimed.  Considering the sessions of future psychiatric treatments recommended by the experts, I would award HK$1,500 (which Mr Chan is prepared to accept).

V.       SUMMARY

109.  The award that Kan would have been entitled to is:

PSLA	HK$350,000
Loss of earnings	HK$1,329,334.27
Loss of pension	HK$199,400.14
Miscellaneous special damages
Medical expenses	HK$40,000
Travelling expenses	HK$10,000
Nourishing food	HK$5,000
Future medical expenses	HK$20,000
Future travelling expenses	HK$1,500 __________ HK$1,955,234.41

110.  Credit would have to be given to the employees’ compensation received by Kan in the sum of HK$1,741,707.23.

111.  There would have been interest on the general damages at 2% per annum from the date of writ, and on incurred special damages at 4% per annum from the date of accident.

Y.       ORDER

112.  Failing on liability, the claim is dismissed. Following the event, I make a nisi order that HA shall have its costs of this action, including any costs reserved, to be taxed if not agreed.