HONG KONG RED CROSS v. THE HONG KONG FEDERATION OF YOUTH GROUPS

DCCJ 2233/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2233 OF 2007

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JUDGMENT

1.  Miss Chan Pik Wan was a teacher at the Plaintiff’s North District Hospital Red Cross School in May 2002.  On 3 May 2002 the school arranged a day camp for its teaching staff at the Jockey Club Sai Kung Outdoor Training Camp located at DD Lot No. 256, Tai Mong Tsai Road, Sai Kung, New Territories (“the Camp”).  The Camp was operated and run by the Defendant, the Hong Kong Federation of Youth Groups.  While participating in the activities at the Camp, Miss Chan sustained back injury in an accident.  She was taken to the Tseung Kwan O Hospital for treatment.  Subsequently, she was given over 27 months of sick leave by her treating doctors.  On 6 October 2004, she was assessed by the Medical Assessment Board to have suffered 3% permanent loss of earning capacity.

2.  Under ECC No. 431 of 2004, Miss Chan took out an employee compensation action against her employer, the Hong Kong Red Cross (“the Red Cross”).  She succeeded in obtaining compensation under the Employees’ Compensation Ordinance in the sum of $669,049.71 with costs agreed at $125,000 by an order made on 17 October 2005.  In addition, the Red Cross, in defending the ECC action incurred legal costs in the sum of $91,474.  The Red Cross is now seeking, in the present action, the recovery of the compensation it had to pay Miss Chan including her legal costs and the Red Cross’s own costs in defending the action in the total sum of $885,523.71. 

3.  Miss Chan also took out an action against the Hong Kong Federation of Youth Groups (“the Federation”) for common law damages in HCPI 388 of 2005 in the Court of First Instance.  The action was subsequently settled by consent order on 17 October 2006 where the Federation agreed to pay Miss Chan a compensation in the sum of $250,000 plus agreed costs of $230,000 on a without admission of liability basis. 

4.  The Federation, did in the present proceedings, bring a counterclaim against the Red Cross for damages it paid to Miss Chan including her costs in the total sum of $480,000 and the Federation’s own costs in defending the action at $367,206 making a total sum of $847,206.  The counterclaim was discontinued with costs to the Red Cross pursuant to an order made by this Court on 21 September 2009. 

5.  The Red Cross’s claim is denied by the Federation.  It is the Federation’s defence that Miss Chan’s accident at the Camp was caused solely by her own negligence.  The Federation also disputed the quantum claimed by the Red Cross. 

Liability

6.  The Red Cross’s  claim against the Federation is based on:-

(1) Sec. 25 (1)(b) of the Employee Compensation Ordinance Cap. 282 (“ECO”); and

(2) Sec. 3(1) of the Civil Liability (Contribution) Ordinance Cap. 377 (“CLCO”).

7.  Section 25 (1)(b) of the ECO provides:-

“(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the employee in respect thereof-

(a) the employee may both claim compensation under this Ordinance and take proceedings against the third party in the Court of First Instance or, subject to the provisions of the District Court Ordinance relating to the limits of jurisdiction, in the District Court to recover damages:

Provided that where any such proceedings are instituted the court in which the action is tried shall, in awarding damages, have regard to the amount which, by virtue of paragraph (b), has become or is likely to become payable to the employer by the third party; and

(b) the employer by whom compensation is payable …… shall have a right of action against the third party for the recovery of any sum which he is obliged to pay as a result of the accident, whether by way of compensation or indemnity, or by virtue of any agreement made with the employee prior to the accident, and may exercise such right either by joining in an action begun by the employee against the third party or by instituting separate proceedings:

Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance.”

8.  Section 3(1) of the CLCO provides:-

“(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).”

9.  In the case of Yardway Motors Ltd. v. Tam Siu Lun [2005] 2 HKLRD 85 at p. 118, the Court of Appeal held that section 25 (1)(b) of the ECO catered only for the simple situation where the employer was not to blame for the injury, and his only liability to the employee was the statutory duty under the ECO to pay compensation.  He could then stand in the employees’ shoes and recover what the employee could recover from the third party.

10.  When the circumstances are such that the employer, Red Cross, did not contribute to the accident of Miss Chan, there is no question of common liability in the tortious act.  The burden is on the Red Cross to prove liability against the Defendant in order to recover the damages and costs it compensated Miss Chan under the ECC claim.  The recovery is under section 25 (1)(b) of the ECO and section 3(1) of the CLCO on the basis Red Cross can established the Federation was liable in tort to Miss Chan for the accident.

11.  The Federation denied being liable and claimed it was not negligent in its operation of the Camp.  It further claimed, that even if the Federation is held to be negligent, Red Cross is only entitled to recover the compensation under section 25 (1)(b) of ECO with the limit stated in the proviso of the provision which Mr. Lim, counsel for the Defendant, submitted is capped by the common law damages recoverable.  Section 25 (1)(b) the proviso states:-

“Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance.”

The Accident

12.  The Federation of Youth Groups, is a non-profit social service organization for young people established in 1960.  Its mission is to provide opportunities and facilities for the social, educational, cultural and physical development of young people.  The Jockey Club Sai Kung Outdoor Training Camp is and was one of the camp site established by the Federation providing leisure and training facilities for young people.  The Camp is and was operated and owned by the Federation at the time of the accident. 

13.  Miss Chan was an employee of the Plaintiff, the Hong Kong Red Cross, at one of its schools, the Hong Kong Red Cross Hospital School in May 2002.  She took part at an outing organized by the school for its staff at the Camp on 3 May 2002.

14.  At about 3.30 p.m. Miss Chan took part in an “environmental protection and education activity” at the Camp consisted of a field trip to the mangrove forest prepared and organized by the Federation’s staff at the Camp.  The activity involved the crossing on a floating bridge (“the bridge”) constructed with rows and columns of plastic drums tied to a frame of bamboo poles on the surface of the drums.  The bridge consisted of 3 such sections of raft-like bamboo and plastic drum structure linked together by wooden planks across the 3 sections serving as a bridge and walkway for pedestrians (see photographs and the DVD exhibited).  The ends of the wooden planks were tied to the ends of each raft section and secured with ropes to the horizontal bamboo and drum structure on each section of the three rafts. 

15.  The floating bridge did not straddle the width of the river.  At each end of the river bank, a pole had been erected with a rope tied to it and the other end of the rope tied to the floating bridge.  For visitors crossing the bridge to reach the opposite bank of the river, upon crossing the three raft sections that formed the floating bridge, the person closest to the opposite bank on the floating bridge would be required to pull the rope by hand in order to reach the opposite bank of the river.  Once the floating bridge reached the opposite bank, a link between the two banks of the river would be formed and participants following the first person would be able to cross the floating bridge to the opposite bank.

16.  Miss Chan was in the process of following her colleagues on the floating bridge after it was secured to the opposite bank of the river when she fell into the river.  It was her evidence, that as soon as she stepped with her right foot onto the first right wooden plank linking the second raft section to the third raft section, she suddenly fell into the river.  She claimed that when her right foot stepped onto the first right plank, her left foot was still on the second raft section.

17.  The group’s initial crossing was captured on a video tape taken by a participant in the group.  The video recommenced after Miss Chan fell into the river, it showed her standing facing the remaining planks with the river water reaching her mid-thigh and the plank she had stepped on had its front part submerged in the river.  The rear end of the plank was still attached to the second raft section.

The Issues

18.  To determine whether the Federation is liable to compensate the Red Cross’s loss, it is necessary to find out if:-

(a)  the Federation’s Camp staff was in any way negligent in the construction, maintenance and repair of the floating bridge; and

(b) whether the Camp regulations and exemption clause set out in the standard application form signed by Miss Grace Wong Kit Ching, a teacher of the Red Cross School, on behalf of the school exonerated the Federation from liability. 

19.  Miss Wong Kit Ching first visited the camp on 8 March 2002 with 3 other colleagues.  They were shown around the facilities and given information on the activities offered at the camp.  A camp standard application form was given to Miss Wong.  After Miss Wong obtained instructions from the Red Cross Headquarters, she was authorized to proceed with the booking and complete the form.  She had orally informed the camp’s staff the four activities the Red Cross School staff would be using which included: (1) ‘ocean ecology’ consisting of a visit to the mangrove forest; (2) the Roman catapult; (3) karaoke and (4) swimming.  On the back of the form the following regulations were set out:-

“ 營地規則

2． 使用營地期間，用營者皆須遵守職員指示 ……

5． 凡參加水上活動者，必須穿著救生衣、包跟白布鞋，並須在營地職員及教練（香港獨木舟總會、香港風帆協會、滑浪凡帆協會頒發之証書或本會認可之指導員）指導下進行活動。參加者須諳泳術（能以任何泳式游畢50米），營地有權要求參加者接受游泳測試。教練與學員之比例：帆板1：3，獨木舟1：8（單人艇）、1：4（雙人艇），風帆1：2。以上活動必須於下午四時三十分前返抵營地，結束活動。

6． 攀石及繩網活動須在有認可教練督導下方可進行。”

20.  On the morning of the accident, upon arrival at the camp site, the group which had chosen the ‘ocean ecology’ activity with a visit to the mangrove forest gathered at the auditorium where they were given a power point presentation.  The presentation was made by DW2 Mr. Ching See Ho, one of the three instructors in charge of taking the participants on the visit.  He introduced to the participants the composition, functions, flora and fauna of the mangrove forest they were about to visit. 

21.  It is to be noted that at the auditorium presentation, Mr. Ching did explain to the participants they would be crossing a floating bridge on the visit to the mangrove forest.  They were informed the crossing was challenging but fun.  That they should be careful when walking on the floating bridge and people have fallen into the river before, but the river was shallow and not dangerous.  They were also warned they should walk carefully and follow the instructions of the instructors.

22.  It is not disputed that over 60 participants took part at the mangrove forest visit that morning.  It is unfortunate that the video of the crossing did not capture Miss Chan’s crossing from the second raft section to the third raft section and the cause of Miss Chan’s fall into the river.

23.  The video of the crossing, however, did show the condition of the planks between the second raft section and the third raft section.  The particular wooden plank (‘the first right plank’) that Miss Chan stepped onto with her right foot appeared to have a deeper curvature than the other two planks on the left that linked the second raft section to the third section prior to Miss Chan’s crossing.  These can also be seen from the printed still pictures of the relevant period exhibited, namely at 1 min 38 sec, 1 min 58 sec, 2 min 01 sec and 2 min 10 sec.  The last print showed Miss Chan standing in the river with part of the plank submerged in the water and its end still attached to the second raft section. 

24.  It is the Plaintiff’s case that the first right plank had become detached due to the frequent and regular use by pedestrians crossing the floating bridge.  Constant wear and tear had resulted in the loosening of the rope  securing the plank resulting in the plank breaking loose, leading to Miss Chan’s fall into the river as she put her weight on it during the crossing.

25.  Counsel for the Plaintiff, Miss Lau, relied on the evidence of PW2 Mr. Hung Wai Ming, a colleague of Miss Chan, who had made the crossing immediately before Miss Chan.  His evidence in court was, he noticed the rope tying the front end of the plank to the bamboo frame of the section in front was loose and there was a space between the rope and the plank showing the plank to be unstable.  He further alleged that when he stepped onto the said plank before Miss Chan’s crossing, it sank to such an extent that the under-side almost touched the water.  His reaction then was to rush across to the other side as quickly as possible.

26.  The Defence submitted the floating bridge would naturally move up and down as floating bridges would do when people walked on it, it is up to the person crossing it to keep a good balance and walk with caution to avoid falling into the river.  The defence claimed that the floating bridge as seen on video was in good order before the accident.  It further suggested it was Miss Chan who had stepped either into the gap between the first and second planks and her weight as she fell caused the loosening of the front portion of the plank from the raft section in front and dislodging the plank or that Miss Chan had lost balance and fell onto the first right plank and the weight of her fall caused the dislodgement. 

27.  The Federation produced as exhibit D-1, a plank and pole construction made for the purpose of the trial, it illustrated the way the plank was secured with ropes onto the bamboo frame on the raft.  It is not disputed that the wooden plank in Exh. D-1 was tightly and securely fastened to the bamboo frame by means of a “square lashing knot” 「四方結」used for tying together 2 poles at right angle.  Judging from the video and photographs of the floating bridge, the same method was used in the construction of the floating bridge linking the three rafts together to form a bridge.

28.  It is the evidence of DW1 Mr. Wong that as the floating bridge moved along the river, the angle of the connecting planks between different sections would vary, thereby creating variance in the distance between the left and the right side of the raft sections.  He also explained how the planks would adjust themselves to the varying distances through the dynamic force of the ropes securing the planks to the bamboo frame.

29.  Mr. Wong agreed under cross-examination that the ropes used to fasten the planks to the bamboo frame would become loose in time.  However, he claimed that on the day of the accident before the participants were taken to the mangrove forest, he had visually inspected and walked on the floating bridge to make sure it was safe for the crossing of the participants on that day.  He admitted that he did not check the ropes fastened to each plank on each raft section.  He agreed the rope fastening the planks could be loosen by the weight of a heavy person, and a group of 60 participants at the mangrove forest was a large group.

Findings

30.  After viewing the video repeatedly at the trial and careful examination of the still photographs exhibited on the section of the floating bridge where Miss Chan had the accident, and upon hearing and considering the evidence of the Plaintiff’s witnesses, I find the evidence of Miss Chan and Mr. Hung to be both credible and reliable.  Mr. Hung was the last person to cross the bridge before Miss Chan.  He was a large person of about 100 kg and he described the first right plank was bending and curving so much that he felt it was about too touch the river as he crossed it and he had to rush through the remaining part of the plank.  It is a clear indication that the first right plank was weaker than the other planks on the floating bridge.  It is also clear from the photographs that that particular plank had an unnatural curve quite unlike Exh. D1 which looked sturdy and secured.  From the photographs exhibited, I am not convinced the gap between the first right plank and the middle plank was wide enough for Miss Chan’s right foot to be accidentally lodged causing Miss Chan to lose balance and fall.  Based on Miss Chan’s and Mr. Hung’s evidence and the video tape of her colleagues crossing the bridge, I am satisfied she was careful in crossing this section of the floating bridge and could not have put her right foot in the gap between the two planks by accident.  Her colleagues who preceded her on the bridge were seen to have crossed the same section of the bridge with caution.  Furthermore,  Mr. Ching, one of the Camp’s instructor also confirmed the gap was not wide enough for a foot to go through.  Mr. Wong (DW1), on the other hand, confirmed the planks could be dislodged by a heavy person. 

31.  Based on the evidence adduced, I am satisfied the particular plank in question was loose by the time Miss Chan started to cross it due to constant use and the large number of people that preceded her on the floating bridge that morning.  When Mr. Hung crossed the same section of the bridge, the plank had clearly shown signs of instability that he felt he had to rush over it.  His weight and quick action could have contributed to the detachment of the plank from the rope fastening.  Hence, when Miss Chan followed him and crossed the same plank putting her weight on her right foot, it was probably “the straw that broke the camel’s back” and the plank became dislodged.  When the plank was dislodged at the front, Miss Chan lost balance and fell into the river, the fall had caused the injuries she suffered from.

32.  As to the camp regulations printed on the back of the application form which stated:-

“2． 使用營地期間，用營者皆須遵守職員指示”

33.  The video recording of the presentation before the visit to the mangrove forest showed the camp instructors informing participants that they would be crossing the floating bridge on their way to the mangrove forest and the experience would not be dangerous.  According to Mr. Wong, who led the participants in the crossing and who had also given directions to the participants before the crossing, Miss Chan did not do anything against the instructions of the instructors.  As it is not the Defendant’s case that the accident was due to Miss Chan’s failure to follow instructions of the camp staff, this is therefore not an issue that I need to consider.

34.  There was no evidence adduce to show Miss Chan had failed to follow the instructions of the instructors under the camp regulation.  I do not find Miss Chan had in any way contributed to the accident.  I hold the accident was caused by the detachment of the plank from the rope fastening due to heavy usage and inadequate maintenance.

35.  For reasons set out above, I find the Federation responsible for Miss Chan’s accident and liable to compensate the Red Cross under section 25 (1)(b) of the ECO and section 3 (1) of the CLCO. 

The Exemption Clause

36.  I agree with Miss Lau that the exemption clause on the application form of the Federation does not apply in the present case.  The exemption clause stated:-

“本人/本團體證明以上資料均屬正確，並願遵守青協營舍一切規則及指示，倘在營期內違反營規或發生任何意外，後果概由本人/本團體自負。”

37.  The application form was filled in by a staff of the Red Cross.  The reference to 「本人/本團體」 was not crossed out.  Therefore, it is not clear whether the exemption applied to a person or an organization.

38.  I further agree with Miss Lau that in order for an exemption clause to take effect in excluding a party’s liability for his own negligence, the 3 stage test of Lord Morton in Canada Steamship Lines v R [1952] 1 AER 305 should be considered:-

“(1) If a clause contains language which expressly exempts the person in whose favour it is made (“the proferens”) from the consequence of the negligence of his own servants, effect must be given to that provision;

(2)  If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens;

(3)  If the words used are wide enough for the above purpose, the court must then consider whether ‘the head of damage may be based on some ground other than that of negligence’” (p. 310 A-C)

39.  Clearly, the words in the clause relied on by the Federation do not satisfy the stage (1) test because it did not contain express language exempting the Federation from liability for the negligence of its servants and agents.  If the Red Cross was to bear the burden of the consequences of an accident, the exemption clause should specify it in clear terms.  As the wordings of the exemption clause did not so specify, I agree the clause did not positively exempt the Federation from liability of any accident caused by the negligence of the Federation’s servants or agents.

Quantum

40.  The Plaintiff Red Cross is seeking to recover:-

(1)  Compensation that it had paid out to Miss Chan under ECC 431 of 2004 where the Court ordered the Red Cross to pay Miss Chan the sum of $669,049.71 plus costs agreed at $125,000 and the Red Cross’s own legal costs in defending the ECC action of $91,474.  The total sum came to $885,523.71.

(2)  The quantum of damages that Miss Chan would have been entitled to recover against the Federation at common law for its liability in tort.

41.  The Plaintiff’s Counsel, Miss Lau, submitted the Red Cross is entitled to recover under section 25 (1)(b) not only the sum that it paid out to Miss Chan under the ECC action but also the costs that it had to pay Miss Chan and its own legal costs.

42.  Under section 25 (1)(b) of the ECO, employers are given a right of action against the third party for the recovery of such sum that the employer is obliged to pay as a result of the accident by way of compensation or indemnity provided the amount recoverable under this section shall not exceed the amount of damages which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance (section 25 (1)(b)). 

43.  As to (1) above, it is clearly not disputed that by order of the court, Miss Chan was awarded the compensation sum of $669,049.71 plus costs of $125,000.  This sum was duly paid by the Red Cross to Miss Chan.  Further, it is not disputed that the Red Cross had incurred the sum of $91,274 costs in defending the ECC action.

44.  The Plaintiff’s claim is fully supported by the Court of Appeal decision in Wah Kwong Construction Material v. Wong Man Yip [1995] 1 HKLR 85 that section 25 (1)(b) of the Ordinance provides for a full indemnity and an employer is entitled to recover not only the compensation but also costs which he is obliged to pay as a result of the accident.  It further held that it would lead to anomalous results if a person called upon to pay an indemnity under section 24 (2) was required to pay in full but could not recover the same under section 25 (1)(b) against the tortfeasor (see p. 90 of the report at lines 24-29).

Injury and treatments

45.  In order to determine the damages Miss Chan would have been awarded under common law had the High Court action not been settled, it is necessary to examine her injury and the treatments she received.

46.  Immediately after the accident, she was taken to the camp office and waited for the ambulance to take her to hospital because she was suffering from back pain.  She was taken to the Accident and Emergency Department of Tseung Kwan O Hospital where Dr. Kung Shu Wing found positive sign of tenderness on her lower back region.  X-ray of the lumbascaral region did not show any fractures, his diagnosis was ‘back contussion’ and Miss Chan was given analgesic and sent home.  However, subsequently, Miss Chan suffered persistent back pain which at times became severe.  The maximum duration for her to either sit, stand or walk was 10 – 15 minutes.  On 5 June 2002, Miss Chan suffered great pain and attended the Queen Elizabeth Hospital and was admitted into the orthopaedic ward.  Again, the doctor’s diagnosis was ‘back contussion’  she was prescribed with physiotherapy treatments.  The physiotherapists recorded the condition as follows:-

“(1) Local tenderness over 4^th and 5^th lumber regions;

(2) diminished spinal movements;

(3) no motor-sensory deficits;

(4) only mildly positive straight leg raising tests.

These findings were consistent with back sprain.”

47.  Her physiotherapy treatments included manual therapy and ultrasonic treatments.  After a few sessions of such treatments, when she was found to have obvious improvements, the treatments terminated.  A few weeks later, Miss Chan again experienced exacerbation of back pain, she was admitted into hospital again.  The therapist observed exacerbation of back pain with more positive signs and she was given further therapy treatments.  In July of the same year, Miss Chan experienced another episode of the exacerbation of the back pain and the same therapy treatments were given to her once more.  MRI was taken and the doctors found only multiple sacral meningeal cysts which, according to the doctors, were usually harmless and asymptomatic.  The neurosurgeon confirmed no active intervention was required.  The doctors’ orthopaedic judgment was, Miss Chan had poor level of musculoskeletal and cardiovascular fitness which was limiting her functional ability.  Back fitness and physical rehabilitation program was suggested and given by the therapists. 

48.  In spite of repeated treatments, Miss Chan continued to experience the same degree of back pain with intermittent exacerbations and was intolerable to standing, sitting and walking.  During those periods she had to rely on the wheelchair for outdoor activities.

49.  Miss Chan was examined by Professor Leung Ping Chung of the Chinese University Orthopaedics & Traumatology Department appointed by the Federation and Dr. Johnson C.K. Lam, specialist in Orthopaedics & Traumatology.  According to Professor Leung, when he examined her on 27 October 2005, Miss Chan informed him that her symptoms had already improved by 60% to 70% compared to 2002 and 2003.  In Professor Leung’s opinion, Miss Chan’s lower back pain undoubtedly started after the accident when she fell from the floating bridge into the river.  However, in his opinion, pain caused by a falling sprain would have gone away with treatment and time and that a spinal sprain itself should not have produced a disabling situation.  He did not think the persistent pain of Miss Chan could have been solely caused by the accident.  Upon further investigation, in Professor Leung’s supplemental report of 15 June 2009, he agreed the cysts shown in the MRI in Miss Chan’s sacral area were common incidental findings that did not give rise to symptoms of pain, neither would the cysts in Miss Chan’s pelvic cavity cause back pain. 

50.  Dr. Johnson Lam’s medical report of 13 January 2005 revealed Miss Chan had consulted a private Orthopaedic specialist at the Baptist Hospital and later Dr. Chau Yat Sang on 1 August 2003 for back pain and knee pain after exercise.  Miss Chan had continued to consult Dr. Chau up to 23 July 2004.  At the time, she was not able to walk for longer than 25 to 30 minutes or sit continuously for 15 to 20 minutes.  When Dr. Lam examined her in December 2004, Miss Chan was still complaining of back pain and intolerance to prolonged walking, sitting or standing.  She was not able to return to her pre-accident occupation as a teacher of sick children at the hospital.  Dr. Lam found at the physical examination of Miss Chan, presence of muscle guarding and mild spasm over the lumbar region and tenderness over both iliac crests and midline of the lumbar spine particularly over the lumbosacral junction.  His assessment of Miss Chan’s permanent impairment is 5% and the loss of earning capacity in the region of 6%.

51.  Dr. Lam agreed that Miss Chan suffered from low back pain after the accident, it was not in existence according to her previous medical records.  He did not agree with Professor Leung that Miss Chan’s persistent back pain was not caused by the accident alone.  His opinion was:-

“the absence of radiologically or MRI abnormalities did not imply that the fall had not been serious at all because many injuries do not always appear on these scans.  The pain they induce can cause significant acute and disabling back pain, which in some patients, even in the absence of radiological or MRI abnormalities, could persist and cause chronic pain, as in this case.”

52.  Professor Leung accepted Miss Chan’s pain to be genuine and had arisen after the accident.  In Dr. Lam’s opinion, if not for this accident it was very unlikely that Miss Chan as a young person would suffer from impairment and disability in her lower back. 

53.  I have considered both doctors’ medical reports, in particular Professor Leung’s supplemental report in June 2009 that confirmed Miss Chan’s back pain could not have been contributed by the cysts in her ovaries and that Miss Chan was a fit and young individual who did not have any low back pain before the accident.  I accept it is indisputable that her back pain was caused solely by the accident on 3 May 2002. 

Pain suffering and loss of indemnities

54.  Based on Miss Chan’s evidence, she experienced recurrent low back pain, sometimes on a daily basis or once every two to three days.  At the time of the trial, 7½ years after the accident, she was still attending regular physiotherapy treatments 2 to 3 times a week and she would experience acute inflammation causing constant pain on her low back every now and then.

55.  Miss Chan’s condition cannot be classified as ‘serious’, but the long period of her suffering resulting in her inability to return to her pre-accident job should be taken into account.  I accept Dr Lam’s assessment of Miss Chan that she suffered from a whole person impairment of 5% and a loss of earning capacity of 6%.  I agree with Miss Lau’s submission that an appropriate award under PSLA for Miss Chan would be in the region of $300,000 to $350,000.

Pre-trial loss of earnings and MPF

56.  Professor Leung assessed that in the usual case the sick leave for injuries sustained in a fall of this kind would be between 3 to 6 months, however, Miss Chan’s treating doctors all agreed and accepted her complaints of pain were genuine and she was certified the appropriate period of sick leave between 5 May 2002 to 31 August 2004, a period of 27.75 months.  I accept she should be awarded the loss of earning for a period of 27.75 months at the pre-accident monthly salary of $22,683.73, it comes to $629,462. 

57.  In addition, the pre-trial loss of earnings would include the period after the 27.75 months of sick leave.  According to Dr. Lam, Miss Chan would be fit to engage in light duties such as working as a clerical assistant.  Miss Lau relied on the Hong Kong Government Quarterly Report of Wage and Payroll Statistics for June 2003 that the average monthly pay for a female clerical worker in various industries was $10,000.  The calculation of the difference of earnings from 3 November 2004 to the day of trial, 3 December 2009, a period of 61 months, at the notional earnings of a clerical worker of $10,000 per month including the MPF, would be in the sum of $640,500.  In total, should the trial for common law damages take place today she would have been awarded under PSLA and pre-trial loss of earnings a sum of over $1,200,000.

Future Loss of Earnings and Loss of Earning Capacity

58.  Miss Chan expressed a desire to work in the finance industry in future and she is studying for a qualification to enter that industry.  Whether she would succeed or not and what her earnings would be is unknown.  For this reason, it is not realistic to estimate Miss Chan’s future earnings based on the pay of a clerical assistance earning $10,000 a month even though I agree that the future multiplier of 15 for Miss Chan who is 35 year old is appropriate.

59.  As Miss Chan did not return to work because of her persistent back pain which I accept to be genuine, an award for loss of earning capacity is appropriate.  Such an amount would be in the region of $100,000 should future loss of earning not be awarded.

Medical, travelling and other miscellaneous expenses

60.  Miss Chan had consulted a number of private medical specialists.  The parties have agreed the medical expenses of $65,918, this sum is reasonable.  So far as travelling is concerned, the Defendant also agreed the sum at $20,200, it is a reasonable sum.  Miss Chan’s claim of miscellaneous items of special damages such as wheelchair, walking stick, fitness ball, fitness cycle, hot packs and tonic foods which came to a total sum of $4,761, I find to be reasonable.

Conclusion

61.  It is clear that Miss Chan would have been awarded much more than the $250,000 settlement she reached with the Defendant in her High Court common law claim against the Federation had the action not settled.  As stated above, her claim easily exceeded the Red Cross’s claim of $669,049.71 with costs that the Red Cross paid to Miss Chan under the ECC action.  I further find the Red Cross should also be compensated with the costs it incurred in defending the ECC action as part of the loss incurred.

62.  I hold the Federation to be liable to indemnify the Red Cross under section 25 (1)(b) of the ECO and section 3 (1) of the CLCO.  The sum of compensation to include costs paid to Miss Chan and also the Red Cross’s own legal costs in defending the ECC action came to $885,523.71.  This sum does not exceed the amount allowed under the Ordinance section 25 (1)(b) of the ECO.

Interests

63.  Interests is payable from the date of writ to the date of trial at ½ judgment rate and thereafter at full judgment rate until full payment.

Costs

64.  Costs to follow the event.  I make a cost nisi order against the Defendant to the Plaintiff, to be taxed if not agreed with certificate for counsel.  Should there be no application on costs within 14 days hereof, the order will be made absolute.