TSANG YEE MAN v. CHANEL HONG KONG LTD FORMERLY KNOWN AS CHANEL LTD

HCPI 918/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 918 OF 2015

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim by the plaintiff against her employer. Liability has been admitted and this is an assessment of quantum.

2.  On 25 January 2013, the Plaintiff, a 34‑year‑old fashion adviser and saleswoman, suffered an injury at work.  She was taking a seat on a folding chair in the stock room of the defendant’s shop but the folding chair broke and collapsed.  The plaintiff fell to the ground and she alleged that there was pain and swelling of her left foot, ankle and heel.  She continued to work until she went off duty after a few hours and went to seek treatment from a Chinese bone setter.

3.  The plaintiff subsequently consulted various orthopaedic surgeons and psychiatrists in both private and public sector, and has undergone various supportive treatments like physiotherapy and occupational therapy sessions.  She is still under such care at present and have been granted sick leave until now by the treating psychiatrist.

EXPERT EVIDENCE

4.  There are 2 orthopaedics expert reports before the court, both are by a single expert: an earlier report dated 3 October 2013 by Dr. Peter TIO Man Kwun, and a later one dated 19 August 2014 by Dr. Peter KO Put Shui.

5.  Both reports appeared to be commissioned by a loss adjuster, presumably acting for the insurer of the defendant.  Nevertheless, the parties have agreed to adduce them instead of commissioning any joint orthopaedics experts’ report, which tends to be the norm in such cases nowadays. During the hearing, I have inquired Mr. Allen Lam, Counsel for the plaintiff, and he confirmed that this was the position of the plaintiff.

6.  Besides orthopaedics experts’ evidence, the parties have also adduced a joint psychiatric expert report by Dr. Jenny Tsang (for the plaintiff) and Dr. Benjamin Lai (for the defendant).

ORTHOPAEDICS EVIDENCE

7.  I shall address the orthopaedics expert evidence first.  Of the two orthopaedics expert reports, Dr. Ko’s report was by far the more comprehensive one.  Dr. Tio only documented the medical history, present complaints, physical examination and radiological findings. He did not give any opinion on diagnosis or discuss issues like causation or prognosis in his report.  Dr. Tio’s report would only serve as evidence of what he found at the time of the examination.

8.  Dr. Ko examined the plaintiff on 27 June 2014.  In contrast with Dr. Tio’s report, Dr. Ko stated his “comments and opinion” in his report.

9.  Here, Dr. Ko opined that “based on the information and reports available as well as findings at this assessment”, the plaintiff has 3 different diagnoses: i) soft tissue injury to the left foot and ankle ii) left heel plantar fasciitis / heel pad syndrome and iii) non‑specific left and right knee pain.

10.  For each of these diagnoses, Dr. Ko addressed the issue of causation as follows:

i)  soft tissue injury to the left foot and ankle:-

“If the injury had occurred in the manner described by Ms. Tsang at this assessment and also as documented in available documents and findings reports, it should be compatible with low energy soft tissue sprain injury to the left foot and ankle.”

ii)  left heel plantar fasciitis / heel pad syndrome

“As for her left heel pain as reported by her at this assessment and also as documented in the previous available documents and reports, it was compatible with chronic plantar fasciitis or heel pad syndrome. According to the mechanism of injury as noted, it could not have any possible causal relationship with the alleged injury on 25 January 2013.

In fact, at this assessment Ms. Tsang states clearly that after the injury, she noted pain and swelling over the left foot dorsum area and in this mechanism of injury could not possibly resulted in any heel pad syndrome or plantar fasciitis in the usual medical understanding and consideration.”

iii) non‑specific left and right knee pain.

“As for her left and right knee pain, simply there cannot be any causal relationship with the alleged injury.”

11.  Under the next section, titled “treatment progress and present condition”, Dr. Ko further explained why he thought that the injury only caused the soft tissue injury and not the plantar fasciitis:

“At the time of this assessment, which is about 1.5 years after the occurrence of the alleged injury, she complains of continuous left heel pain at the plantar surface. Actually, there is no complaint of the left foot dorsum which is the area where she noted to have pain and swelling immediately after her alleged injury on 25 January 2013. She also complained of left heel cord pain.”

12.  As for the knee pain:

“Physical examination showed unremarkable findings in both knees.”

13.  Dr. Ko also stated that under physical examination:

“She reported diffuse tenderness along the left heel pad in the plantar area and diffuse tenderness around the heel. There is no other objective findings suggestive of any significant residual problem or pathology in the left lower limb except for the mild decrease in girth in the left calf and left thigh.”

14.  With regard to the soft tissue injury alone, Dr. Ko opined that:

“For the uncomplicated soft tissue injury to her left foot and ankle, the prognosis should be good if not excellent.”

“…the treatment, investigation and rehabilitation received by Ms. Tsang for her possible sprain injury to the left foot and ankle up to about 5 to 6 months should (be) considered adequate and reasonable.”

15.  Thus, in summary, as long ago as 19 August 2014 (the date of Dr. Ko’s report), the parties were clear that Dr. Ko opined that there were 3 possible disease processes and only one, the “low energy soft tissue sprain injury”, was caused by the alleged accident, and that this soft tissue injury had “adequate and reasonable” treatment up to 5‑6 months after the incident and the prognosis “should be good if not excellent”.

16.  It was also clear to the parties that, according to Dr. Ko, the “left heel pain” that the plaintiff complained about, which was “documented in previous available documents and reports”, was chronic plantar fasciitis or heel pad syndrome, a disease process which “could not have any possible causal relationship with the alleged injury on 25 January 2013”, as with the “non‑specific knee pain”.

17.  During the plaintiff’s opening submission, I have drawn Mr. Lam’s attention to Dr. Ko’s opinion and asked how he wished to deal with such evidence.

18.  Mr. Lam confirmed that the parties have agreed to submit Dr. Ko’s orthopaedics expert report without the need for any joint expert report and without the need to call Dr. Ko to give oral evidence at the hearing.

19.  Mr. Lam, in fact, only sought to attack Dr. Ko’s expert opinion by way of submission at the time of closing submission.

20.  In essence, Mr. Lam submitted that Dr. Ko’s focus was not proper, and that “did the plaintiff suffer left heel injury and pain in the accident” should be the focus.  He argued that there was evidence to show that the plaintiff suffered from left heel pain immediately (or at least shortly) after the accident, thus this must have been caused by the accident.  He said the evidence was from the witness statement of the plaintiff (which was made almost 2 years after Dr. Ko’s expert report) and some medical records.  As such, he asked the Court to apply “common sense” and ignore the scientific evidence from Dr. Ko.

21.  Mr. Lam referred to McGhee v National Coal Board [1973] 1 WLR 1 in support of his argument of why scientific evidence should not be applied in this case.  Instead, the Court should base the legal concept of causation “on the practical way in which the ordinary man’s mind works in everyday affairs of life.”

22.  Dr. Ko clearly stated that his opinion was “based on the information and reports available as well as findings at this assessment” including what the plaintiff told him during the examination: “In fact, at this assessment Ms. Tsang states clearly that after the injury, she noted pain and swelling over the left foot dorsum area…”.

23.  If the plaintiff thought that this was not what she told Dr. Ko, or if she thought what she subsequently stated in her witness statement would have changed the “focus” of his opinion, or that there might be certain medical records that Dr. Ko had not taken account of, the plaintiff would have plenty of options: 1) she could apply to instruct her own expert (perhaps to prepare a joint expert report with Dr. Ko); 2) she could seek a supplemental expert report from Dr. Ko questioning the “focus” of his opinion and showing him the witness statement as well as drawing his attention to whatever documents Mr. Lam claimed supported the plaintiff’s case; or 3) she could have applied to call Dr. Ko to give oral evidence at the hearing to cross‑examine him.

24.  Dr. Ko’s report is dated 19 August 2014 so the plaintiff would have plenty of time to do any of the above, or indeed, to seek clarification or explanation of his opinion (given that another of Mr. Lam’s criticisms of Dr. Ko was that he did not explain certain parts of his opinion).

25.  Further, when I raised the issue of Dr. Ko’s opinion with Mr. Lam during his opening submission, in theory, he could still make an (albeit very late) application to call Dr. Ko to give oral evidence.

26.  None of these was done.

27.  Instead, the Court was asked to speculate as to what Dr. Ko might have said if various evidence was presented to him, and that Dr. Ko’s existing opinion should be ignored altogether by applying an “ordinary man’s mind”.

28.  There are certain dangers of doing this under the circumstances.  I agree with Mr. Daniel K.K. Chan, Counsel for the defendant that the case of McGhee can clearly be distinguished: in the McGhee case, the medical evidence was that 1) the precise nature of the disease “has not yet been discovered by medical science” and 2) the alleged negligent act has “materially contributed” to the disease.

29.  In this case, Dr. Ko was unequivocal in his opinion regarding the issue of causation: that the “mechanism of injury could not possibly result in any heel pad syndrome or plantar fasciitis in the usual medical understanding and consideration”.  Dr. Ko also did not opine that the mechanism of injury could “materially contribute” to the plantar fasciitis.

30.  Indeed, Lord Reid in the McGhee case stated, “…in a field where so little appears to be known with certainty I could not say that that is proven…But in cases like this we have to take a broader view of causation.”  This was the qualification that his Lordship made before venturing his view on legal concept of causation as quoted in paragraph 21 above.  In short, Lord Reid was stating no more than “if the scientific evidence was uncertain, we have to apply our common sense.”

31.  As such, under the circumstances, the Court can only accept Dr. Ko’s opinion as it stands.

32.  In fact, given Dr. Ko’s clear medical opinion that the left foot soft tissue injury and the plantar fasciitis were two separate diseases, I am of the view that it did not matter when the plaintiff alleged she first suffered from left heel pain.

33.  If one observed that “event A” happened at roughly the same time as “event B”, this would necessarily not mean that “A caused B”, or that “B caused A”, because the two events could happen at the same time purely by coincidence.

34.  To elaborate further, I give the example of the observation of a rooster crowing at sunrise.  How do we know whether the rooster’s crow has caused the sun to rise, or that it was the sunrise that caused the rooster to crow, or that we had just observed a pure coincidental event?  We do this by conducting a scientific test, e.g. by putting the rooster in a room where it cannot observe a sunrise, and observe what will happen etc.

35.  This is exactly the reason why in situations like this, we cannot rely on our “ordinary man’s mind” or “common sense” and make an assumption that if two events happen at the same time, one must cause the other.  This is sometimes called the “fallacy of association” because our mind has a tendency to see a pattern and association of events (or “causal relationship”) when there may be none.  Science is there to test this “hypothesis of association” e.g. “did the crowing of the rooster cause the sun to rise?”

36.  Pain is a mere symptom which may be caused by many disease processes.  Dr. Ko has identified 2 separate disease processes: the soft tissue sprain injury caused by direct trauma at the time of the accident, and the plantar fasciitis which could not be caused by the mechanism of the injury at the accident.

37.  Therefore, even if the plaintiff could establish that she had suffered from left heel pain at the time of the accident (which is by no means certain since the plaintiff raised this in her witness statement made almost 2 years after the examination with Dr. Ko, and Dr. Ko was not called to verify the details of what the plaintiff had told him at the time of the examination), in view of Dr. Ko’s opinion, the Court could only find that this plantar fasciitis was a coincidental and co‑existing disease.

PSYCHIATRIC EVIDENCE

38.  Turning to the joint psychiatric expert report by Dr. Jenny Tsang and Dr. Benjamin Lai, I note that Dr. Ko’s expert report was provided to both psychiatric experts.  It was clear that Dr. Lai has taken into account of this (he mentioned this in his opinion in paragraph 94 (iv)).  Dr. Lai also made a detailed summary of all his considerations including certain “inconsistencies” noted and opined that:

“On the basis that she sustained left ankle injury in the index accident and her working capacity has been temporarily affected, it is compatible that she could have suffered understandable psychological reaction to the situation and she could have developed symptoms of an adjustment disorder…Currently it is likely that she is only suffering from mild residual psychiatric symptoms as a result of the index accident.”

39.  Therefore, Dr. Lai has taken into account Dr. Ko’s opinion that the accident had caused “left ankle injury” and not plantar fasciitis, and based his diagnosis on that.

40.  Dr. Tsang, however, made no mention of Dr. Ko’s opinion but simply stated, under paragraph 68 of the report:

“Madam Tsang has no past history of psychiatric illness. Her current psychiatric condition is caused by the alleged accident and its consequences.”

41.  It appears to me that Dr. Tsang has failed to consider the issue of causation as raised by Dr. Ko at all.  If Dr. Ko has identified that the plaintiff’s soft tissue injury carried “good if not excellent” prognosis and her current complaint of left heel pain was caused by an unrelated plantar fasciitis, I cannot see how Dr. Tsang could attribute all her current psychiatric condition to the alleged accident.

42.  As such, I prefer Dr. Lai’s opinion.

43.  The plaintiff’s treating psychiatrist, Dr. Chang, has produced a medical report but it is trite law that medical expert opinion would carry more weight than treating doctor’s report (Chun Kam Hung v. Shing Lee (Meat Supplies) Hong Limited HCPI 802/2013 and Chu Kwong Fu & Another v. Wonder Gold Investment Ltd HCPI 295/2014).  Dr. Lai in fact questioned whether Dr. Chang had been given an appropriate representation of the plaintiff’s psychiatric condition.  Further, I think that Dr. Chang would not be aware of Dr. Ko’s opinion regarding causation of her physical complaints.

PSLA

44.  The plaintiff claims HK$700,000 under this head taking into account all her current pains and psychiatric problems.

45.  Much has been made regarding the credibility of the plaintiff.  On one hand, both orthopaedic experts detected some mild degree of muscle wasting in her left calf and left thigh.  This is an objective sign.  On the other hand, the plaintiff’s evidence on the extent of her left heel pain i.e. how she needed to place her left foot gingerly and how pain would start on standing, was not consistent with what was observed in the surveillance video.  She appeared to be able to walk normally and certainly did not avoid standing when smoking cigarettes on the street.  One might expect that any patient with such severe continuous pain brought on by standing would have given up smoking on the street, or at least find a place to sit down before “lighting up”.

46.  The plaintiff also claimed that she has repeatedly fallen over (which apparently caused actual injuries) after standing for a length of time.  I find this claim quite mystifying.  I would expect that any reasonable (and young: the plaintiff is in her thirties so we are not talking about a geriatric patient with senile dementia here) person with full mental capacity and full strength in other limbs would likely have learned very quickly to anticipate and take precautions to avoid such falls and injuries.  To suggest that she could have fallen repeatedly was suggesting that she has, somehow, been taken by surprise every time.

47.  I note that the plaintiff appeared very emotional on the stand.  However, being emotional would not be indication of credibility one way or another and this did not affect my judgment on the evidence.

48.  In conclusion, I think that the plaintiff did exaggerate her symptoms to some degree but this did not matter given Dr. Ko’s opinion that her current left heel pain (to whatever degree but which has caused the mild muscle wasting) and knee problem were not caused by the accident.

49.  Dr. Ko opined that for the “low energy soft tissue injury to the left foot and ankle”, the “prognosis should be good if not excellent”.

50.  Dr. Lai opined that she has an adjustment disorder with depressed mood as a result of the accident and that she currently suffered “mild residual psychiatric symptoms as a result of the accident”.

51.  For an uncomplicated soft tissue injury and mild adjustment disorder, I would make an award of HK$150,000 (see Lau Chi Keung v. Wong Wai Kei DCPI 1846/2008 and Au Man Ming v. Goldwell Property Management Ltd. DCPI 636/2010).

PRE‑TRIAL LOSS OF EARNINGS AND MPF

52.  Dr. Ko opined that “treatment, investigation and rehabilitation received…up to about 5 to 6 months should be considered adequate and reasonable.” On the other hand, Dr. Lai opined that the appropriate sick leave might be 3 months for her psychiatric condition.

53.  I note that longer sick leaves were granted by her treating doctor but two points must be taken into account: firstly, it is trite law that sick leave certificates should be treated as no different from treating doctor’s medical report and carries less weight than expert opinion (Chu Kwong Fu & Another v. Wonder Gold Investment Ltd HCPI 295/2014).  Secondly, the sick leave beyond these 5 or 6 months, even if appropriately given, would have been for the Plaintiff’s ongoing plantar fasciitis which was unrelated to the accident.

54.  It is not disputed that the Plaintiff earned a monthly income of HK$31,231.00.  I would therefore allow HK$31,231.00 x 6 x 1.05 = HK$196,755.30.

FUTURE LOSS OF EARNINGS

55.  Dr. Lai was of the view that the plaintiff was mentally capable of returning to her pre‑accident or any other jobs appropriate to her physical abilities.

56.  As for her physical abilities, Dr. Ko opined that the prognosis was excellent for an uncomplicated soft tissue injury, and that her current chronic plantar fasciitis was not related to the accident, and even for that problem: “there is no other objective findings suggestive of any significant residual problem or pathology in the left lower limb except for the mild decrease in girth in the left calf and left thigh.”

57.  I am of the view that any physical or mental disabilities that the Plaintiff claims that she now suffers are unrelated to the accident so there should be no award for future loss of earnings.

LOSS OF EARNINGS CAPACITY

58.  Similarly, there should be no award under this head of claim.

SPECIAL DAMAGES

59.  The plaintiff claims medical expenses of HK$121,060.00 and travelling expenses of HK$9,050.40.

60.  I would think that a large part of this would have been related to the treatment for her chronic plantar fasciitis rather than her soft tissue injury which would have recovered within 5-6 months.

61.  Nevertheless, as a broadbrush approach, I will allow HK$130,000.00.  

FUTURE MEDICAL EXPENSES

62.  Dr. Lai opined that further psychiatric treatment was required but “the goals of the treatment are to help her to be frank with her treating doctors about her actual condition…”.

63.  I wonder if there is a case to be made that her psychiatric problem has been entirely her own doing, i.e. by not being frank with her treating doctors about her actual condition.

64.  The defendant did not make that case so I will not go further.

65.  Dr. Lai suggested that her psychiatric treatment could be terminated within 6 months of the joint examination, or within 3 months after the conclusion of the present litigation, whichever was later.  He also opined that the average costs of a session of psychiatric treatment in the private sector with 4 weeks’ supply of medicine was HK$2,000.

66.  I would therefore allow HK$2,000 x 3 = HK$6,000 under this head of claim.

SUMMARY

	HK$
PSLA	150,000.00
PRE‑TRIAL LOSS OF EARNINGS AND MPF	196,755.30
FUTURE LOSS OF EARNINGS	0
LOSS OF EARNING CAPACITY	0
SPECIAL DAMAGES	130,000.00
FUTURE MEDICAL EXPENSES	6,000.00
TOTAL	482,755.30

67.  The total award should therefore be HK$482,755.30 plus interests. As the plaintiff has already received HK$1,269,732.36 which is more than the current award.

68.  Dr. Ko’s expert opinion is crucial in this case and I am not sure whether the plaintiff, and those advising her, were aware of this until I pointed it out during the hearing.  All the more surprising that Dr. Ko’s expert report was available as early as 19 August 2014.  I would have expected that the plaintiff should have taken steps mentioned in paragraphs 23 to 25 above, or discontinued the claim then.

69.  The plaintiff’s claim for damages in this proceedings should be dismissed.  There be an order nisi for cost of the action to be to the defendant to be taxed if not agreed with certificate to Counsel.

70.  This is a legally aided case and I do question whether I should allow the Plaintiff’s own costs in this action be taxed in accordance with Legal Aid regulations.  On balance, I will allow it but I wonder if this is one example of cases for the Director of Legal Aid to consider, in view of my concern expressed above, whether there is any need for closer monitoring in order to protect the legal aid fund.