LAM PUI YI ANITA v. SECRETARY FOR JUSTICE AND ANOTHER

CACV 259/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 259 OF 2009

(ON APPEAL FROM HCPI NO. 924 OF 2002)

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BETWEEN

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Deputy High Court Judge L. Chan given on 13 August 2009. The matter before the judge was a claim by the plaintiff, who is a Health Inspector, against the Director of Food and Environmental Hygiene, the first defendant, and against the Tsuen Wan Slaughter House Limited, the second defendant. The plaintiff had been injured on 25 October 1999 when she was on duty in the second defendant’s premises. A pig’s carcass which had been hung on a pulley fell on top of her together with the gambrel and iron pulley from which it was suspended. The judge found in favour of the plaintiff in respect of the claim against second defendant but dismissed the claim against the first defendant. The judge awarded the plaintiff $318,263.07 together with interest but ordered the plaintiff to pay the first defendant’s costs.

2.  The plaintiff appealed both against the dismissal of her claim against the first defendant and in respect of the award of damages in respect of the second defendant.

The course of these proceedings

3.  The course which this action has taken has been unacceptable.  The writ in the action was issued on 16 October 2002 and the statement of claim was served on 7 November 2002.  The fact that the trial did not commence until 14 December 2005 was something, which, in itself, is undesirable.  The course which the trial took thereafter was something which should never have happened.  In total, there were 20 hearing days spread over three years.  Final submissions were made on 13 October 2008 and the judgment was not given until 10 months later, on 13 August 2009.  The judgment itself was 140 pages.  That, again, is most undesirable.

4.  The plaintiff concluded her evidence on 16 December 2005 and the judge said:

“COURT: So thank you, Miss Lam, your ordeal is over. We will continue on Monday. You are welcome to come here and see what will be going on because you are the plaintiff and you are entitled to be here, and furthermore, this trial is open to the public, and also as a citizen of this place you are also entitled to come here, but if you don’t want to see us, you are not obliged. Understand?”

5.  Unfortunately, the plaintiff’s participation in the trial was far from over.  It would appear that the first cause of the unnecessary length of the hearing was occasioned because when Mr Tsui Hing Yin, a superintendent of the Environmental Health and Food and Environmental Hygiene Department, gave evidence on the following hearing day, 19 December, he was asked a question which went well beyond anything that had been in his witness statements.  Despite having given evidence that he had never worked with the plaintiff, he was asked to give his assessment of what work the plaintiff could undertake.  There was an immediate objection:

“MR HINGORANI: Well, unfortunately, he can’t tell what she can undertake because he doesn’t know what the physical implications of her problems actually are.”

Transcript Page 205

6.  The upshot of that objection was that the judge overruled the objection and himself asked what would appear to be inappropriate questions of the witness:

“COURT: Mr -- sorry. Maybe while you are looking at the list, you can mark down the number of posts on a piece of paper. Mark down the number of those that you think the plaintiff can assume. Mr Kwok, I think you may have to discuss with Mr Hingorani on the new revision to time...

(Discussion re length of trial and court diary)

Q. Yes, Mr Chui (Tsui), are you ready?

COURT: Now, maybe you just read it out so that we can all copy it down in our notes.”

Transcript Page 224

7.  The judge refused to allow the orthopaedic specialist doctors who had given a joint report to be called to give evidence. On the following day Mr Hingorani, the counsel then appearing for the plaintiff, set out in very logical form his objections to the evidence that was proposed to be given.  The judge did not call upon counsel for the defendants but gave his ruling straightaway.  That included that the following:

“As to the extent of the plaintiff’s physical disabilities as concluded by the doctors jointly, the 1st defendant is bound by the same.  For opinion beyond the province of the medical report, the 1st defendant is not bound by them.

Mr Chui (Tsui) is not an expert, nor is he giving expert evidence.  He has factual knowledge of what are the duties of each and every post.  He is giving factual evidence on what posts involved the physical actions or demands that the plaintiff cannot meet and what posts do not have such physical actions or demands.  His evidence is on matters of fact.  I will not ignore his evidence.”

Transcript page 247

8.  The following day, the hearing concluded with orders by the judge that the first defendant should provide further discovery relating to documents concerning the criteria for promotion and job descriptions of Health Inspectors.  The plaintiff was to file an additional witness statement in respect of Mr Tsui’s oral evidence and the trial was adjourned until February the following year with three days reserved.

9  Although the trial was adjourned to 9 February 2006 with 3 days reserved, there was a further order on 1 February 2006, on the plaintiff’s application, whereby the first defendant was required to disclose the operation manuals setting out how the duties and procedures of the various Health Inspectors’ services would be discharged.  The plaintiff was given further time to file additional witness statements to deal with Mr Tsui’s evidence and a pre-trial review was fixed for 15 March 2006.

10.  On that day, the first defendant was ordered to make further discovery and the plaintiff’s application for leave to call Dr Fang was dismissed.  The action was then ordered to resume on 9 October 2006.  On 23 September 2006, the first defendant was given leave to provide various materials including witness statements of Mr Tsui and to take instructions from him, presumably because he was still technically giving evidence.

11.  On 9 October, the hearing was comparatively short.  The main event was that the defendants were given leave to amend their defence.  When the matter was resumed on 11 October, the plaintiff was recalled and the indication was given that the cross-examination might take “a couple of days”.  Those couple of days extended to 4.  In all the plaintiff was in the witness box for the second time for some 4½ days.  The trial was adjourned again on 25 October 2006 and did not resume until 12 April 2007.

12.  On 13 April 2007, the judge gave leave to the plaintiff to adduce the psychiatric report of Dr Singer and gave leave to the second defendant to arrange for a psychiatric expert to examine the plaintiff.  On 6 June 2007, the judge gave leave to the parties to call their respective psychiatric experts and to the plaintiff to revise the statement of damages and the defendants to re-amend their amended defence.  In doing so, he ordered that the second defendant’s expert’s report had to have references to a surveillance expunged.

13.  Although further trial dates were fixed commencing on 25 October 2007, on 25 October the judge made an order that the plaintiff be allowed to amend the revised statement of damages and the defendants should have leave to make consequential amendments to their reply to the amended revised statement of damages.  The judge made a further order that the plaintiff be recalled “for putting of question by the defendants’ counsel of fact as contained in the reports of Doctors Singer and Wong and counsel should exercise restrain.” The plaintiff was recalled a second time in April 2008, 18 months after the first recall and 28 months after her initial oral evidence.

Liability

14.  The plaintiff’s task at the time of the accident was to inspect pig carcasses which were hung from and being transported by an overhead conveyor.  The judge seemingly accepted that plaintiff’s evidence that she had inspected 100 carcasses in a quarter of an hour and, on a calculation, that would have meant that there had been approximately 9 seconds to inspect each carcass. The judge also accepted that not all carcasses were evenly spaced.

15.  The arrangement was that, after inspecting 100 carcasses, the plaintiff would swap places with a colleague who had been inspecting offal at an offal table.  That was regarded as slightly less strenuous work.  In order to move from the carcass inspection area to the offal table the accepted route was for the plaintiff to pass underneath the conveyor, in other words between two carcasses as they were moving.  The colleague, who had been inspecting the offal would move to inspect the next 100 carcasses.

16.  The accident occurred when the plaintiff passed underneath the conveyor and it was then that a pig’s carcass which weighed approximately 60-70 kg, together with the gambrel and its attached pulley, suddenly fell down and hit her on the right shoulder.  The cause of the accident was never definitively identified.  The accident report form merely contains observations, which are no more than conjecture, that either the pulley carrying the relevant carcass was not securely mounted on the overhead rail or something, such as hair, had been trapped in between the overhead rail and the pulley causing the pulley to lose its alignment.

17.  At the trial the second defendant admitted liability, although it claimed that the plaintiff had also been negligent and thus contributed to the cause of the accident.  It is not entirely clear on what basis the second defendant admitted liability.  The judge held that there had been no contributory negligence.

18.  In my view, the judge was correct to hold the there had been no contributory negligence.  The plaintiff had been working under some pressure.  The inspection of the carcasses required considerable efficiency and concentration.  When the two Health Inspectors had to change places, no doubt, that had to be done efficiently and without delay.  In my view, the system of work was not safe.  The arrangement for the Health Inspectors to pass underneath the moving conveyor with the heavy carcasses moving relentlessly on was inherently unsafe.  The first defendant, as the plaintiff’s direct employer, should not have required the plaintiff to work in such an environment with an unsafe system.  The risk involved with heavy carcasses was something which was unnecessary.  It is not for the court to indicate what the defendants should have done, whether by redesigning the layout of the slaughterhouse or arranging for the conveyor to be stopped so that the plaintiff and her colleague could take a safer route.  In the circumstances, I consider that the first defendant is equally liable to the plaintiff.

Damages

Pain, suffering and loss of amenities

19.  The first ground of appeal in respect of the quantum of damages was that the judge’s award of $250,000 was inadequate.  I consider it unnecessary to go through the full history of the plaintiff’s injury.  It is sufficient to say that immediately after the carcass had fallen on the plaintiff that she was dazed although she did not lose consciousness.  She felt immediate pain in her head, neck, right shoulder and arm.  Thereafter she had persistent pain which oral analgesics did not relieve.  She underwent a considerable amount of physiotherapy and in February 2001 she was able to return to work and undertake light duties namely, sedentary tasks.  In March 2001 she was referred by orthopaedic surgeons to the psychiatric clinic for her intractable pain in her right shoulder and symptoms of anxiety. There she was diagnosed as having an adjustment disorder with mixed anxiety and depression.  In March 2002 she had to be admitted to Queen Mary Hospital for examination following sharp neck pain which had radiated to her left shoulder and she had numbness.  There was continuing physiotherapy treatment.

20.  There was a joint medical report by the orthopaedic doctors, that was prepared following an examination on 18 July 2003, nearly 4 years after the accident.  There was a short supplementary report in October 2004.  The doctors found no obvious deformity of her neck or back but that neck extension was impossible initially due to pain but with repeated attempts extension of 20 degrees was reached.  There was tenderness on the cervical spine and:

“Examination of the shoulders showed positive impingement signs for the right shoulder with pain elicited in full flexion and abduction and adduction.  Internal rotation of the right shoulder was limited, such that on full internal rotation the right thumb reached T7 spinous process while the left thumb reached T3 spinous process and there was weakening with pain of the supraspinatus, infraspinatus and rhomboids on the right side.”

21.  The doctors assessment and opinion referred to contusion and sprain of the neck which eventually led to persistent pain and discomfort over the right side of the neck which radiated down to the right arm.  Contusion of the right shoulder led to residual impingement syndrome with pain on extreme motion and the associated weakness.  In paragraph 8.3 of the report the doctors said:

“Ms. Lam is capable of resuming her occupation as a Health Inspector although she has not been able to attend full duties.  Nevertheless Ms. Lam was promoted from Health Inspector II to Health Inspector I in August 2001.  Ms. Lam has recovered to an end stage, and no further significant improvement will occur with time.  Therefore Ms. Lam will have to remain with her present sedentary duties, and should not be able to resume the full physical duties that she was capable of before the injury.

8.4    Ms. Lam was provided with continuous sick leave from 25.10.1999 to 19.12.2000.  She was also granted intermittent sick leave from 5.1.2000 To 4.10.2002.  Drs. Fang, Hsu and Wong consider that the sick leave provided was appropriate.

9.      Assessment of permanent impairment

9.1.   For persistent pain over the neck and associated symptoms in the upper limbs, whole person impairment is assessed at 6%.

9.2.   For mild right shoulder impingement syndrome, whole person impairment is assessed at 1.5%.

9.3.   The combined impairment, based on musculo-skeletal injuries, is assessed at 7.5%.”

22.  In the revised joint supplementary report in October 2004 the doctors said:

“We agree that Ms Lam would have difficulty in performing the following tasks: --

1.   Lifting heavy objects such as carcasses or heavy specimens.

2.   Reaching high places above head level it involved climbing and extending her neck.

3.   Reaching to very low places requiring crouching position.

4.   Using fine tools such as in the dissection of the examination of meat specimens.

5.   Prolonged neck flexion at desk duties such as reading documents and working with the computer.

6.   Prolonged travelling in vehicles especially on bumpy roads.”

23.  In short, when fully considered, the reports show that the plaintiff did suffer serious injury which the orthopaedic experts agreed that as late as 2004 prevented the plaintiff from undertaking the full range of tasks which were necessary for her previous employment. It was also agreed, even by Dr Wong, whose evidence will be referred to later, that at least until the year 2003 she had suffered a depressive disorder or adjustment disorder with a depressive mood. The plaintiff was thus not only unable to undertake her usual full range of duties of her previous employment but was confined to what were clearly relatively light duties.  She also could not take part in many outdoor and sports activities that she had been used to.

24.  The judge acknowledged the orthopaedic experts’ reports when he said at paragraph 257 of the judgment;

“I find that the plaintiff is indeed suffering from the pains and limitations as set out in the two joint reports. I accept that she may have some difficulty in executing certain physical functions as mentioned by the experts except the difficulty in prolonged neck flexion at desk duties and computer work.”

25.  However, based on what was said by Dr Wong, the second defendant’s psychiatric expert, the judge went on to minimise the effect of the orthopaedic experts when he said in the following paragraph:

“Hence, I find that the nature of such pains and limitations as agreed to by the orthopaedic experts is only of a mild degree and is not traceable to any orthopaedic or psychogenic cause.”

26.  A number of observations can be made about that.  First that the orthopaedic experts’ report was agreed and it is not for any other witness to give contrary evidence; second Dr Wong saw the plaintiff 3-4 years after the orthopaedic report, hence whatever he said was not based on any observation or examination in 2003 or 2004; thirdly Dr Wong was not an orthopaedic doctor and fourthly he did not examine the plaintiff orthopedically: at best his conclusions were based on observations of the plaintiff’s movements whilst in his office.

27.  Whilst the judge came to the conclusion that the plaintiff should be awarded $250,000 in respect of pain, suffering and loss of amenities, in reaching his assessment he appears to have been comparing, primarily, the plaintiff’s injuries with cases in which a plaintiff had recovered sums of approximately $900,000.  In rejecting that argument I consider the judge assessed the injury caused to the plaintiff significantly too low.  In my view the plaintiff’s injuries, including the psychiatric condition which she undoubtedly suffered, on any footing, at least up until 2003, fall to be categorised in what has been referred to in the cases as the lower end of the serious injury category.  In those circumstances I would revise the award under this heading to $500,000.

Loss of chance of promotion

28.  It was, of course, this head of damages which caused the initial adjournments and consequent delay.  The plaintiff claimed that because of her injury and present condition she was unable to do many of the tasks which were required of Health Inspectors.  In consequence, she said that she would be handicapped with regard to any possible promotion from Health Inspector I to Senior Health Inspector.

29.  There is no doubt that the plaintiff had been a very dedicated, conscientious and meticulous Health Inspector.  In short, it is not disputed that up until the time of her accident she could be said to have had every expectation of being in line for promotion to higher ranks within her department.  At paragraph 296 of the judgment the judge referred to the perfectionist character of the plaintiff and her favourable appraisal reports prior to the accident.  His finding was that she did have a very good chance of being promoted to Senior Health Inspector prior to the accident.

30.  The judge acknowledged in paragraph 298 of the judgment that if the plaintiff’s disabilities rendered it difficult for her to perform the full or principal duties so that her chance of promotion was hampered or would be delayed then she should be compensated to the extent of that adverse affect. However, the judge then went on to hold in paragraph 322 of the judgment that, having considered the appraisal reports prepared as part of her employment, he did not consider that they showed that the plaintiff could no longer perform the full range normal duties of a Health Inspector in all postings.  In so saying, the judge did, apparently, consider that the plaintiff could not perform the full range normal duties of a Health Inspector in some of the postings.  That is clear because the judge then went on to consider the evidence of Mr Tsui where he conceded that the plaintiff could only work in 13 out of 29 Health Inspector posts.  In the outcome because of the availability of those posts to the plaintiff the judge considered that she could fairly compete with her colleagues for promotion to Senior Health Inspector and that there were many such posts that could accommodate her.  He thus concluded (in paragraph 352) that:

“All in all, I hope that she has not lost and will not lose any chance of promotion by reason of her disability.”

31.  Although Mr Tsui gave evidence that there were a number of posts which the plaintiff could hold, it has to be noted that out of a total establishment of 476 Health Inspectors, 394 of those Inspectors held positions where the duties were such that, as Mr Tsui conceded, the plaintiff would be unable to carry them out.

32.  Although it is clear that the Civil Service guidelines and arrangements are such that promotion should not be affected by a lack of experience, one of the criteria for promotion is specified as being the ability of the applicant to perform the duties of the post to which there is to be promotion.  Such a requirement, of course, accords with common sense.

33.  Furthermore, whatever the good intentions behind the Government guidelines and regulations, the fact remains that difficulties caused by the plaintiff’s condition and inability to perform all the functions required of a Health Inspector can and sometimes do generate resentment amongst her colleagues and superiors.  An example of this is in the report of the Countersigning Officer in respect of the period from 22 September 2000 to 31 May 2001.  That referred to the plaintiff having completed only an estimated 25% of the work of a normal Health Inspector (EH).  The report continued:

“Her abundance of idling time in this office has kindled great difficulties for senior staff to pressure other colleagues to work doubly hard to cope with the rapid increase of workload due to public expectation in these years of economic set back.  Since her inability, that may have been caused by an injury on duty, can and is being redressed by civil claim, this consideration should not been fully reflected on the performance rating in this staff report.”

34.  That assessment, which clearly was neither generous in spirit nor within what would be regarded as the required approach within the Civil Service, attracted a well phrased rebuke by what was, evidently, an alert endorsing officer.  Nevertheless, it does show what is likely to happen in practice.  What is worse is that it gave the plaintiff the distinct impression that she was regarded as being a burden amongst her colleagues.

35.  As an example of non-discrimination against persons who have disability, Mr Tsui referred to the fact that in 1998 there had been one officer who had acted as a Senior Health Inspector.  Apparently he went to the training school to have a look at where the Senior Health Inspector training took place.  After that, seemingly, within one day, he declined the offer to act in that post.  Whilst the evidence is not entirely clear, it would appear to demonstrate that despite best intentions on the part of the employer, the employee concerned may well feel that he is not capable of performing a particular job.

36.  In this respect, between paragraphs 328 and 345 the judge went to considerable lengths to explain how he considered that the plaintiff could have been employed in some positions despite the fact that she might not be capable of carrying out all the duties concerned with them.  For example, if she could not climb up a cat ladder to inspect the cleanliness of a refuse collection point the judge was prepared to accept that she could ask a subordinate to climb up and take photographs with a digital camera for her to carry out the inspection.  The judge seemed to doubt that it was necessary for the plaintiff to crouch down to inspect gullies and drained traps.  He did not explain whether he thought that that function could be performed by a colleague or subordinate taking photographs to be shown to the plaintiff.  In paragraph 336 the judge considered that if the plaintiff had to examine food that was placed on the ground for sale she could ask her subordinate to find something for her to sit on or to put the food on a table or shelf so that she could inspect it.  In paragraph 339 the judge suggested that another colleague or her supervisor might have to inspect stalls at markets where pork was on sale.  In paragraph 342 the judge considered that he could see no reason why an assistant could not be provided to relieve the plaintiff in carrying files to court when engaged in prosecution work.  In paragraph 345 the judge was disposed to consider that if the plaintiff were required to inspect 16 schools per day, she could rearrange her work so that she inspected less on each day.  The judge had previously referred to the possibility of the plaintiff taking public transport such as the MTR supplemented by taxis if she found that she could not stay in government vehicles and sustain a bumpy ride.

37.  All these suggestions, some of which came from Mr Tsui , appear to me to be unrealistic, if not absurd.  If colleagues, subordinates or superiors had to be called upon to assist the plaintiff, a situation would soon be arrived at where those colleagues, subordinates and superiors would consider that the plaintiff was an unacceptable burden and a nuisance.  It has to be observed that one of the requirements of Health Inspectors is that he or she should carry out their duties personally.  However good photographs may be for illustrative purposes, they cannot, it seems to me, be a proper substitute for personal inspection where pubic health and safety are concerned.

38.  Given all these factors it seems to me that it is clear that the plaintiff cannot perform all the functions which a Health Inspector is required to perform. That lack of ability must in some way be reflected on her chances of promotion.  However well-intentioned the Government and her superiors may be there is undoubtedly a limit as to their ability to promote a person to a post in respect of which that person cannot carry out the duties.  Whereas, it is to be sincerely hoped that the plaintiff’s condition will, over the course of time, improve and she will be able to perform more functions than she can at present, there is a substantial risk that her chances of promotion have been materially affected.

39.  However, I consider that it is wrong to assume that all chance of promotion has been lost.  In this respect, I would estimate that a reasonable conclusion would be that her chances of promotion have been affected in a way which would justify her being granted 80% of the figure that would be appropriate if she had no chance of promotion at all.  The judge assessed that figure at $2,046,550.23.  Although the plaintiff has argued that the judge should have taken a higher figure based on the revised Master Pay Scale, the judge refused to entertain further evidence in respect of that.  My view is that that was correct since the application to adduce the evidence was made at a very late stage in the trial.

Sick leave in the period commencing 2 November 2006

40.  The plaintiff was given sick leave certificates by the psychiatric department at UCH in the period commencing 2 November 2006.  We were informed in this court that the plaintiff has, in the intervening time since the judgment in the court below, returned to work.  The judge disallowed any claim in respect of sick leave in the period commencing November 2006 on the basis that he accepted Dr Wong’s evidence that any sick leave in that period was unnecessary as it was not for any psychiatric illness.

41.  In short, I consider that the judge failed to consider that an award of damages is to compensate a claimant for damage, loss or injury which has been suffered.  If there has been a loss occasioned to a claimant because that claimant is unable to work as a consequence of a defendant’s breach of duty, then it matters not whether the expert witnesses consider that the claimant is suffering from a physical or psychiatric disorder.

42.  In his report, Dr Wong, on whose evidence the judge relied, divided the period after the accident into three phases.  He discounted the existence of any orthopaedic explanation for the plaintiff’s persistent multiple severe pains on the basis that other doctors could not detect any significant physical pathology.  That was, of course, not the result of his observation since he was a psychiatric doctor.  He then considered the psychiatric morbidity.  His report seems to be equivocal as to whether the plaintiff was suffering from a current “Anxiety Depression”. He concluded that aspect at paragraph 140 of his report on the basis that if the plaintiff was so suffering, its causation was not due to the accident that had happened in October 1999.  Finally, Dr Wong referred to the phenomenon of “abnormal sick role”. He explained what that meant in paragraph 141 of his report.  It meant that a person who had recovered from being sick adopted what was called an “abnormal sick role”, and have the symptoms of pain and limitation of movement perpetuating their role as being sick.  In paragraph 143 of his report he said:

“There are probably several important reasons why she became and remains sick.  First, she is unhappy about her appraisal for the period 29 June 2005 to 31 May 2006.  She is very angry about her seniors.  Second, and related to the first, she is worried about her promotion prospects and also very angry as a result.  Third, there is the on-going litigation with its obvious implications.”

43.  Dr Wong then went on to say that the degree of abnormal sick role was so substantial that it bordered on malingering.  Although he considered that there were indications that there might be malingering, his report did not go so far as to say that.  In paragraph 245 of the judgment the judge appears to accept that the plaintiff was suffering from abnormal sick role and he specifically did not hold that the plaintiff was malingering.  He said:

“I do not discuss the issue of malingering as it is unnecessary.  There is no such finding by any doctor.”

44.  As Dr Wong said in his report malingering is a manifestation of dishonesty.  Naturally, if the plaintiff were dishonest in saying that she suffered symptoms, she would not be entitled to compensation for any loss claimed as a result of those symptoms. But, it seems to me that if as a result of an accident and what followed from that, that the plaintiff has suffered loss because she was unable to work because she had involuntarily had serious symptoms such as pain and restriction of movement and was not malingering or dishonest about it, I consider that such loss must be recoverable in the normal way.  Furthermore, it is evident that the judge found that the plaintiff was indeed still suffering as a result of the accident: in paragraph 257 the judge said:

“I find that the plaintiff is indeed suffering from the pains and limitations as set out in the two joint reports.”

45.  It is to be observed that in the following paragraph the judge went on to say that he agreed with Dr Wong that the magnitude of the plaintiff’s pains cannot be as great as she claimed (at 9 degrees).  However, 9 degrees is undoubtedly, a very high degree of pain.

46.  The fact remains that Dr Wong said in his report that the plaintiff was sick.  It was the defendant’s case that such symptoms and restriction of movement as the plaintiff still has were caused by the extraneous factors listed in paragraph 143 of Dr Wong’s report quoted above.  There are 2 answers to that.  First, that the sickness referred to by Dr Wong nevertheless emanates from the original accident and, secondly, if a party has harmed another by breaching his duty towards them, causing them to be sick, it is his duty and obligation to right that damage.  It is also the harmed party’s right to obtain redress and specifically to try to obtain compensation.  If in resisting that rightful claim, the party in breach has aggravated the harm to the injured party and caused the sickness that came to the harmed party to linger and remain manifested, then if that sickness and manifestation are not contrived or feigned, the chain of causation from the original accident has not been broken; rather it is the party that has acted wrongfully that has failed to right the damage.

47.  I therefore consider that the plaintiff is entitled to claim for any loss in respect of the period of sick leave from 2 November 2006 until she returned to work.

48.  Whilst on this aspect I would mention that the transcript shows that there was an interchange between the judge and counsel as to whether the plaintiff’s counsel could ask Dr Wong what his instructions were when he was asked to make his report about the plaintiff.  The judge stopped counsel on the basis that it was a matter of privilege.  The defendants’ counsel immediately concurred with the judge’s view.  In my view, that was quite wrong. It is particularly important in respect of expert witnesses that their instructions are clear and fair.  Indeed, an expert’s report has to based on his instructions.  Instructions to experts should be dislosed when the expert’s report is disclosed.

Conclusion

49.  I, therefore, consider that the plaintiff is entitled to the following relief.  In the first place the award of damages for pain, suffering and loss of amenities should be increased from a figure of $250,000 to a figure of $500,000.  In addition to the figure for loss of allowances of $17,736.84, which was allowed by the judge, the plaintiff should also be reimbursed for loss of earnings in respect of her loss of pay whilst on sick leave up until 14 May 2008 in respect of those periods which were not allowed by the judge.

50.  The plaintiff also claims the sum of $1,919 in respect of loss of interest on earnings when her promotion from Health Inspector II to the grade of Health Inspector I.  Briefly, the delay in promotion was clearly as a result of the plaintiff having been hindered by lack of experience due to her having been off work after the accident.  Her grievance in this respect was redressed and she was given the appropriate promotion but it was delayed.  In those circumstances she should be entitled to the sum claimed.

51.  There is no dispute as to the amount of medical expenses which the judge allowed at $4,990.  The judge allowed $4,000 in respect of tonic food.  Although the plaintiff claims that that figure should have been higher, the estimate made by the judge was a reasonable estimate given the absence of any supporting documents and I would not disturb it.  The judge disallowed any travelling expenses from and after 15 March 2005.  For the reasons stated above I consider that the plaintiff was in a position where she was entitled to claim that by reason of her condition as a result of the accident.

52.  The judge allowed the sum of $2,499 in respect of tense machine and there has been no dispute about that.  There is a very minor contention that the plaintiff is entitled to $360 in respect of postage for sending her sick leave certificates at a time when her condition prevented her from going to the slaughterhouse to deliver them, in order to save further aggravation of her condition.  I consider that the plaintiff should be entitled to that amount.  Finally, on this aspect, the judge disallowed the sum of $4,590 in respect of hydrotherapy exercises.  Although I have some sympathy with the plaintiff in this respect, I consider that the judge was justified in disallowing this since there was no confirmation of the advice to undertake swimming.

53.  In respect of the loss of future allowances for loss of future earnings, these should all be assessed by the Master based on the periods when the plaintiff was granted sick leave up until the time she returned to work after the judgment.  The assessment should include loss of pension and loss of annual leave due to sick leave having been taken.  The master should also assess what sums if any should be awarded in respect of costs of future medical attention and loss of future travelling expenses.

54.  Finally, as noted above, the plaintiff is entitled to 80% of the amount of loss of earnings and loss of pension due to the loss of chance of promotion which the judge assessed at $2,046,550.23. That figure would therefore come to $1,637,240.18.

55.  The interest on the general damages would be at 2% per annum from the date of the writ and on the special damages at half the judgment rate from the date of the accident to the date of trial and at judgment rate thereafter.

56.  The parties should attempt to agree a draft order and in case of difficulty the matter should be referred back to this court.

Hon Le Pichon JA:

57.  I agree.

Hon Lunn J:

58.  I agree with the judgment of Rogers VP.