CHAU CHUI PING WINKY v. CATHAY PACIFIC AIRWAYS LTD

HCPI 261/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 261 OF 2003

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J U D G M E N T

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Introduction:

1.  On 24 March 1998, Ms Chau was employed by Cathay Pacific Airways Limited, (Cathay), as an Airport Services Officer, (ASO), posted airside, to the tarmac of Kai Tak Airport.  Her duties at the material time included escorting passengers to the terminal building, by bus, from an recently arrived aircraft, parked on the airport apron.  At the terminal building she would supervise passengers into the building in order that they may take an escalator to the first-floor arrivals area.  There they would either join connecting flights to onward destinations or pass through immigration and enter Hong Kong.

2.  In the course of undertaking her duties Ms Chau saw two elderly men apparently having difficulties in stepping onto the escalator.  She stopped them and suggested that she would stop the escalator for them, after other passengers had left.  The men, from Taiwan, waited, but not long enough for her to stop the escalator, and moved on to it, to join connecting flights into China.

3.  Ms Chau immediately followed them on to the escalator.  The elderly man at the front of the two men lost his balance and leaned backwards, causing the second elderly man to fall backwards onto Ms Chau.  In the course of this incident Ms Chau suffered injuries, particularly to her ankles.  There is a dispute as to precisely how the injuries were caused.

The issues:

4.  Ms Chau went immediately on sick leave, but did not issue the writ until 11 March 2003, nearly 5 years after the accident, and nearly 2 years after the expiry of the limitation period of 3 years as provided by the Limitation Ordinance Cap 347.  The first matter for determination is accordingly the limitation issue.

5.  Ms Chau contends that her injuries were caused by the negligence of her employer, Cathay.  The second matter for determination is accordingly the liability issue.  If that issue is determined in Ms Chau's favour, the final matter to be determined will be that of quantum of damages.

The Limitation issue:

6.  Section 27(4) of the Limitation Ordinance provides that the limitation period in personal injuries cases is 3 years from the date on which the cause of action accrued, or the date, (if later), of the plaintiff's knowledge.  There is no dispute in this case that Ms Chau knew, on 24 March 1998, that she had suffered personal injuries as a result of the incident that occurred on that day.

7.  Section 30 of the Limitation Ordinance gives the court power to override that time limit, if it appears to the court that it would be equitable to allow action to proceed having regard to the prejudice imposed on a plaintiff by virtue of the time limit, and the prejudice caused to any defendant arising from the failure of a plaintiff to comply with the time limit.  In acting under s 30, the court is to have regard to all the circumstances of the case, and in particular 6 specific matters set out in s 30(3).

S. 30(3)(a); the length of the delay and the reasons for the delay:

8.  The accident occurred on 24 March 1998.  The limitation period accordingly expired on 24 March 2001.  The writ was issued on 11 March 2003, effectively two years late.

The steps taken by Ms Chau:

9.  Ms Chau's explanation for the delay was twofold.  First, she said she was unaware of her right to claim common law damages.  Second, she said that by reason of a period of depression consequent to the injuries she suffered she was unable to properly apply her mind to the steps that she needed to take in relation to compensation.  It was not contended that she was under a disability to the extent that any limitation period might be suspended.

10.  Ms Chau's explanation as to her failure to commence proceedings within time was not at all convincing.  It was abundantly clear that she had a number of indications that she should, at least, inquire into the matter.  In particular on 19 January 2000, under the Employees Compensation Ordinance, an assessment of her ankle injuries was made.  A letter was dispatched to her by the Employees' Compensation Assessment Committee informing her that the Employees' Compensation Unit of the Labour Department would calculate the amount of compensation according to the assessment result, and issue the Certificate of Compensation Assessment.  That form followed on 26 January 2000, and contained an award of compensation in the sum of $170,396.31.

11.  The letter of 19 January 2000, was headed:

“Issues which the Employer and Employee should pay attention to”. 

The third paragraph of the letter contained the following statement:

“Moreover, pursuant to Section 26 of the Employees' Compensation Ordinance, if the Employee can prove that the injury is caused by the fault of the Employer, the Employee can additionally start a civil claim under common law to claim for damages.”  (English translation from the original in Chinese)

Ms Chau was obliged to acknowledge that she had read that paragraph and that she had discussed the whole of the letter with her boyfriend, Mr Kong Ka Wai, who had also read the letter.  The document plainly drew her attention to her rights at common law.  Her attempts to assert that she knew nothing of her common law rights was unconvincing.  Mr Kong's similar efforts were equally unconvincing.

12.  When she received the award of compensation under the Employees' Compensation Ordinance Ms Chau sought to challenge the sum is being insufficient.  On 2 February 2000, Ms Chau lodged a formal objection to the assessment.  In February 2000, Cathay sent Ms Chau a cheque for the $71,053.29 as part of the compensation assessed.  She returned the cheque to Cathay as she disagreed with the sum.  Plainly, well within the time limit, the whole question of compensation was in her mind and she was able to deal with it.

13.  Both Ms Chau and Mr Kong attempted to explain why no steps were taken until October 2002, well after the expiry of the limitation period.  Their explanations were unconvincing, and I find it more likely than not that, notwithstanding a period of depression requiring medical treatment, Ms Chau has slept on her rights.

Prejudice to the defendant:

14.  In the present case Cathay relied on 6 specific factors to contend that prejudice existed.  They are:

(a) the terminal building at Kai Tak Airport no longer exists;

(b) the two elderly men involved in the incident, potential witnesses, cannot now be traced;

(c) written procedures in relation to Kai Tak Airport no longer exist;

(d) Ms Chau's colleagues, on duty with her at the time, and potential witnesses, cannot now be traced;

(e) recollection on the part of witnesses after 8 years may have faded with the passage of time.

It is convenient to deal with each of these separately.

Kai Tak airport no longer exists;

15.  It was common ground that the terminal building at Kai Tak Airport is no longer in existence.  But it was also common ground that at the time the writ was issued, March 2003, the building, although no longer in use as an airport terminal building, did exist.  Notwithstanding that, no attempt was made by Cathay, at the time of the service of the writ, to photograph or arrange for plans to be drawn of the relevant area.

16.  More importantly however, no issue arose which would have required a view of the locus in quo.  All of the witnesses were familiar with the construction and design of the relevant area, known as “Dock H”, one of eight virtually identical areas through which passengers were taken to, or brought from, aircraft by bus.  I was personally familiar with those areas myself, through many years travel through Kai Tak Airport, and had no difficulty in visualising the circumstances of the incident.  This is plainly a case in which there would have been no request for a site visit.  Nothing in the evidence gave rise to a situation which would have required an inspection of the site.

The passengers involved cannot be traced:

17.  It is right that the elderly passengers involved in the incident cannot now be traced.  Sometime after the proceedings were issued that portion of the passenger manifest which is retained and archived by Cathay for its accounting purposes was located and made part of the documentation in the proceedings.  From an examination of that document Ms Chau was of the opinion that two particular passengers were likely to be those involved.  This deduction was made from the fact that both were identified in the manifest as being senior citizens, one born in June 1924, the other born in January 1928, and that both had onward flights to the Mainland.  No other passengers met these two criteria, factors which Ms Chau recalled from the incident.

18.  The case for Cathay was that had they been given this information earlier they may have been able to trace the passengers and obtain witness statements to give assistance in the determination of the issues raised by this case.

19.  The issue was however completely resolved by the evidence of Ms Lily Kan, Logistics and Support Manager in the Airports Department of Cathay.  Ms Kan was obliged to acknowledge, and frankly acknowledged, that if the writ had been served in January 2001, within the time limit, Cathay at that time held no information at all, other than the archived manifest, and could not have contacted the passengers.  It was in fact, Ms Kan's evidence, three months after the flight, the archived manifest, in the form now before the court, was the only evidence then available as to who was on the flight.  Consequently by July 1998, only 4 months after the accident, Cathay would have been in no better position to trace the passengers than it is now, or was at the time of service of the writ.

20.  Plainly, no prejudice in this respect arises from Ms Chau's delay in commencing proceedings.

The absence of training manuals:

21.  The evidence was that staff training manuals are updated from time to time, and that when updated they are saved in the computer system, overwriting the previous manual.  To compound the situation, it needs to be remembered that on 6 July 1998, less than four months after the incident, operations at Kai Tak airport ceased, and moved to Hong Kong International Airport at Chek Lap Kok.  This move required significant rewriting of manuals to accommodate the new and different working conditions.  The evidence was that the older manuals were not taken to Chek Lap Kok, and were not retained.  The result again is that within four months of the incident the evidence that Cathay sought to rely upon no longer existed.

22.  In any event I have regard to the evidence of Ms Sharon Chung, Assistant Training Manager in the Airports Department of Cathay.  Her evidence was that the substance and the information of the training manual used in Kai Tak was similar to that used in Chek Lap Kok.

23.  Although at Chek Lap Kok virtually all passengers board and alight from aircraft by way of airbridges, facilities do exist for bus docks similar to those at Kai Tak.  Several of the Cathay witnesses were themselves experienced ASO's.  None of the Cathay witnesses indicated that there were any particular provisions in the manuals used at Kai Tak which differed from those at Chek Lap Kok in any relevant way.

24.  Having regard to all of these circumstances I am satisfied that no prejudice arose from the absence of the manuals.

Tracing work colleagues:

25.  The duty rosters were prepared by computer.  However the evidence was that once issued they were invariably amended by hand, and that consequently the computer originated document then bore no real relationship to the roster applicable at that time.  It may be that these hand amended rosters are kept for some time, but again the move from Kai Tak Airport to Chek Lap Kok had an effect on the situation.  The evidence from the Cathay witnesses was that old duty rosters were not taken to Chek Lap Kok, and no longer existed.

26.  Again, within four months of the incident, the information was no longer available.  Again, plainly, no prejudice arises in this respect.

Fading memories:

27.  The question of fading memories is adequately dealt with in paras 28-31 below.

S. 30(3)(b): lack of cogency in the evidence:

28.  It is, regrettably, not at all unusual for courts to have to try cases eight years after the event.  The issue of the quality of recollection of witnesses is a matter which arises in virtually every trial and one which judges meet on a daily basis.

29.  The only stage in the present trial in which recollection might have become important involved the preparation of a document known as an Initial Incident/Accident Report.  Such a document was completed by Ms Bonnie Ma, then, and now, Staff Coordinator in the Airports Department of Cathay.  Ms Ma interviewed Ms Chau on 30 March 1998, six days after the incident, and recorded a description of the incident.  An issue arose in the trial as to whether or not Ms Chau suffered her injuries when the elderly passengers fell on her, or in the course of her assisting to them to stand up.  For reasons that will later appear I have come to the conclusion that it is does not matter which of those two scenarios occurred.

30.  It is right that Ms Chau's recollections of the circumstances in which she came to launch her claim were blurred by the passage of time and the mental illness she suffered following her sick leave.  Any disadvantage in that respect was to Ms Chau and not to Cathay.

31.  In assessing the evidence I have, as always, in giving weight to evidence, had due regard to the passage of time between the events and the time the evidence was given.  I am satisfied that in this respect no prejudice has arisen.

S 30(3)(c); conduct of the defendant:

32.  There is no suggestion that at any stage were inquiries made of Cathay prior to the expiry of the limitation period, to which they did not properly respond thereby resulting in prejudice to Ms Chau.

S 30(3)(d); the duration of the disability:

33.  As a direct result of the accident Ms Chau suffered sprains to both ankles and consequent laxity of the lateral collateral ligaments.  She suffers pain in both ankles which is continuing, and synovitis of the right ankle and cartilage damage and degeneration.  She suffers a continuing disability in this respect, having been assessed as not being able to return to her pre-accident duty as an ASO, a job which requires a lot of standing and walking.  She is however fit to return to sedentary duties.

34.  As an indirect result of the accident she suffers lower back pain, which cannot be related by medical in evidence to the injury suffered in the accident, and after the accident developed psychological and psychiatric disturbances.

35.  There is nothing in this aspect which impacts upon the limitation decision.

S 30(3)(e); did the plaintiff act promptly and reasonably:

36.  This is an accident which happened at work, and Ms Chau was fully aware of the circumstances from the moment it happened.  If she was not immediately aware that the circumstances might give rise to an action for damages, she was certainly reminded of that by the letter from the Labour Department on 19 January 2000.  For the reasons given in paras 9-13 above, I am of the view that Ms Chau did not act promptly once she knew that the circumstances might be capable of giving rise to an action for damages.

37.  Prior to the expiry of the limitation period Ms Chau took no steps at all to seek professional legal advice as to her circumstances.  She did seek medical advice not only in respect of her physical injuries but also her mental depression.  There is no suggestion that any of the doctors involved suggested to her that she might have had a claim for common law damages.

Is it equitable to allow the action to proceed:

38.  The court is required to have regarded to all the circumstances of the case and in particular the matters that I have set out above in determining whether it is equitable to allow an action to proceed.  At the end of the day it will essentially be a balancing exercise in which the scales will be tipped primarily on the basis of prejudice suffered.  Where no prejudice has been occasioned to a defendant by the delay, then the practice of the courts has been regularly to exercise the discretion in favour of the plaintiff: see Horton v Sadler [2006] UKHL 27 per Lord Hoffman at § 44.

39.  It is right that Ms Chau has not acted promptly and has, to an extent, slept on her rights, but I must have regard to the fact that she suffered a period of depression which inevitably will have impacted upon her conduct to some extent.  If the time limit is enforced she will lose her right of action.  It is not the purpose of a limitation period to punish a plaintiff who does not promptly pursue her rights.

40.  It is right that there has been a delay, but on my analysis of the circumstances Cathay have suffered no prejudice as a result of the delay.  The situation Cathay face in this trial today is no different than the situation they would have faced had the proceedings been issued well within the time limit.

41.  The prejudice to Ms Chau in denying her the right to pursue the action is greater than the prejudice to Cathay in requiring them to face the action.  In the whole of the circumstances I am satisfied that this is a case in which I may properly override the time limit.  I accordingly direct, pursuant to s 30(1) of the Limitation Ordnance Cap 347, that the time limit in s 27 shall not apply to this action.

Liability:

42.  In order to determine the question of liability is necessary to briefly examine the nature of the training and tasks of an ASO,  the duties of a Customer Services Officer, (CSO), and to consider the “Meet And Assist Service”, (MAAS), provided by Cathay.

The Meet And Assist Service:

43.  MAAS is a service provided for passengers who may need assistance when travelling with Cathay.  It includes medical cases, wheelchair passengers, passengers with language problems, first-time travellers, and elderly passengers travelling alone, families with small children, mothers with infants, passengers who found it slow or difficult in walking or claiming a staircase, incapacitated self-reliant passengers and other categories of a similar nature.

44.  In most circumstances passengers needing MAAS would be identified in advance and that information contained in the manifest which was available to the ASO team before they met an arriving aircraft.  On occasions the MAAS service would not be requested by a passenger, but it may become apparent to the ASO team on arrival that some assistance would be required.  That portion of the manifest designating MAAS requirements is not now available.  That does not matter, for it is not suggested that the two elderly men involved in the incident were MAAS passengers.  The information contained in the manifest that they were senior citizens apparently arises because of ticket pricing issues.

If upon arrival it becomes apparent to a member of the ASO team that, although no MAAS service has been requested, a passenger requires assistance, it is open to the ASO to make arrangements for that passenger to receive MAAS.

The tasks of an ASO:

45.  An ASO works in all areas of the airport, with the job bringing them into direct contact with passengers.  It was important to Cathay, as one of the world's leading airlines, and with an excellent reputation for service, that an ASO had good customer service skills.  An ASO was required to work both landside and airside. 

46.  When working airside, an ASO provides service to passengers at check-in including operating computers, checking travel documents, allocating passenger seating, registering baggage and the like.  ASO's performed check-in services, at the relevant time, at City Check in Pacific Place in Admiralty, and at the airport.  Although Ms Chau denied that it was part of an ASO's job, I am satisfied that ASO's were also required to give assistance to special passengers such as the elderly, mothers with infants and disabled passengers.  This was done as part of the MAAS program.

The system of work airside:

47.  When working airside the duty of the ASO revolved around providing service to departing, arriving and transit flight passengers.  In appropriate cases and ASO would be provided to give MAAS assistance.  As the airbridge facilities at Kai Tak Airport were limited it was necessary on a regular basis that aircraft be parked on the apron and passengers bussed to and from aircraft through the eight loading docks.  For departing passengers these were reached by taking escalators from the departure level, at level 2 of the airport terminal.  Arriving passengers were brought by bus from the aircraft to the ground floor where they took the escalator to level 1, the arrival level.

48.  In normal circumstances three ASO's were assigned to an arriving aircraft.  The mobile stairs were positioned by the aircraft doors, with first class and business class passengers descending first, followed by economy class passengers.  The task of the ASO's on the ground was to direct passengers to the buses, presumably ensuring that they did not get loose on the airport apron.  Two of the three ASO's would go into the terminal with the first bus, the third going in on the last bus.  If the number of passengers on an aircraft was below 80, fewer ASO's would be assigned to the aircraft.  I am satisfied that on 24 March 1998, 3 ASO's would have been provided for the aircraft, as the manifest demonstrated that there were considerably more than 80 passengers.

49.  On arrival at the terminal dock the first ASO would supervise passengers on to the escalator, going up with them when the second ASO arrived.  When the third ASO arrived, the second would go up the escalator to the arrival level.  That third ASO would ascend the escalator to the arrival level with the last of the passengers from the bus.

50.  In the terminal dock there was a wall telephone through which communication could be made to the ASO Duty Supervisor of the day.  In addition there was an intercom system which enabled an ASO to communicate with the ASO's above, on both the arrival and departure levels.

The training of an ASO:

51.  The period of training was relatively limited, covering about two weeks, with most of it “on the job training”.  I am satisfied that it was adequate training.  No allegation of negligence on the part of Cathay is made as to the standard of training.

52.  Ms Chau began work as an ASO, landside, and later progressed to working airside.  By the time she was working on the apron at Kai Tak Airport she was an experienced ASO.  Part of her training had included dealing with MAAS passengers, and although Ms Chau could not remember having done so, I was left in no doubt that, on a number of occasions, she had had to attend to MAAS passengers.  I am satisfied that it was inevitable in discharging her duties as an ASO that she would have been required to attend to such a task.

The tasks of a CSO:

53.  A CSO is a higher grade of ASO.  Additional training was required, and the tasks more extensive.  A CSO dealt with official VIPs, disabled passengers including those requiring wheelchairs or stretchers, young passengers travelling unescorted whilst in the airport, and tasks such as attending the Airline Services Desk in the departure area of the airport.

54.  Passengers who were designated for the MAAS service, where specialised assistance such as wheelchairs or stretchers were required, were dealt with by a CSO.

The circumstances of the accident:

55.  In assessing the evidence I have due regard to the fact that Ms Chau is required only to prove her case on the balance of probabilities, and that no positive case was advanced by Cathay.  While it is right that Ms Chau's memory of events was unsatisfactory, both as a result of the passage of time and the illness she has suffered, she was not pressed to any significant concession that would lead me to disbelieve her account of the circumstances of the accident.  A defendant in a personal injury action who chooses to conduct the case on the basis that he does not admit the claim, but does not offer any positive case in response, must always bear in mind the words of Suffiad J in Chong Ha Kui Tai v Multicon Engineering Co Ltd. HCPI 1168/2002 at §13:

“… in a civil matter, where the standard of proof is on balance of probabilities, it is very seldom if at all that cross examination alone showing minor discrepancies and inconsistencies would be sufficient for a court to wholly reject or to disregard the evidence given by a witness, short of some major concessions made by the witness.” 

There were inconsistencies in Ms Chau's evidence.  That is to be expected after 8 years and an illness.  Those inconsistencies did not lead me to disbelieve her description of the circumstances of the accident.

56.  When the bus carrying Ms Chau and the passengers arrived at dock H, Ms Chau became aware of the fact that two passengers appeared to be having mobility difficulties.  She became concerned that they would have difficulty in boarding the escalator and asked them to wait so that she could stop the escalator to enable them to board it without difficulty.  I am satisfied that after a short time, the length of time is irrelevant, the two men chose not to wait any longer, but boarded the escalator.  Ms Chau herself boarded the escalator immediately after them, her purpose being to assist them in case they fell.

57.  When the escalator was about halfway up the man in front fell onto the man behind him who in turn fell on Ms Chau.  I am satisfied that in the course of that fall Ms Chau suffered injuries to her wrist and ankle.  I reject the contention by Mr Sakhrani, based upon the initial accident report made by Bonnie Ma, that the injury was suffered in the course of assisting the passengers to stand up.  I am satisfied that the expression in the report:

          “Winky helped to pull them up but both her wrists and ankle were twisted.”

is properly analysed as meaning that when Ms Chau went to pull them up she was unable to do so because her wrists and ankle had suffered injury.  That analysis pays proper regard to the word “but”.  Had the injury being suffered in the course of assisting them up the statement would have read

          “When Winky went to pull them up she twisted both her wrists and ankle.”

Liability:

58.  The statement of claim, when issued, contained a number of allegations of negligence.  By the time of trial, sensibly recognising the reality of the situation, Mr Lam relied on one only, an allegation that Cathay had been negligent in failing to provide Ms Chau with any or any suitable means of communication, such as a walkie-talkie radio so as to enable her to call for further assistance from her colleagues under the circumstances.

59.  There is no dispute that on the wall, approximately 20 feet from the entrance to the escalator, was a wall mounted telephone which could be used to communicate with the duty supervisor.  An ASO was expected to have with her necessary telephone numbers, not only for the duty supervisor, but for other airport staff with whom she might be required to communicate.  That is a perfectly reasonable expectation and was part of Ms Chau's training.

60.  Further, equally convenient to the escalator, was an intercom system which enabled an ASO to communicate with the other ASO's on the arrival level directly above, and the departure level on the floor above that.

61.  It is right that if all ASO's were provided with two-way radio an immediate means of communication would be available.  However there is nothing in the circumstances of this case that demonstrated to me that the availability of an immediate means of communication, as against the means of communication that was available, would have avoided the accident.

62.  It was Ms Chau's case that the two men waited for approximately 5 minutes before boarding the escalator, without waiting for her to bring it to a stop.  Whatever the precise length of the duration of waiting, I am satisfied that that time was more than a sufficient for Ms Chau to go to either the wall mounted phone and contact the duty supervisor, or the intercom, and contact the ASO's working with her, in order to seek assistance.

63.  In simple terms, by ensuring that the dock was equipped with both the wall mounted telephone and the intercom Cathay have provided Ms Chau with

“a suitable communication means such as a walkie-talkie so as to enable her to call for further assistance from her colleagues under the circumstances”,

as alleged in the statement of claim.  Ms Chau does not explain why she did not use either the wall phone or the intercom.  Significantly the highest at which she puts the position is in her 5th witness statement where she says:

“If I had a walkie-talkie with me at that time I could contact the Duty supervisor at the time and he would instruct other ASO on the first floor to help me.” (my emphasis).

It is apparent however from the fact that means of communication were available to her at the time, both by way of the wall mounted phone and the intercom, which she did not use, that she had decided not to contact the Duty Supervisor or the other ASO's working with her.  The existence of a walkie-talkie radio would have put her in no better position.

64.  Ms Chau's position was that she could not use the wall mounted telephone or the intercom because her duty required her to watch the passengers as they went up the escalator and supervise them.  I have no doubt at all that, having regard to the proximity of both the telephone and the intercom to the escalator, she was perfectly capable of undertaking the task of supervising passengers at the same time as she made a phone call or communicated through the intercom.

65.  I accept that walkie-talkie radios are now made available to ASO's, but the evidence is that they are made available on the basis of need and availability.  The case for Ms Chau did not suggest that in the circumstances in which she found herself on 24 March 1998, she would, if present standards were applied, have been supplied with such a radio

Conclusion:

66.  For the foregoing reasons I am satisfied that, in the whole of the circumstances, Cathay have not been negligent, so as to cause either wholly or in part the injury suffered by Ms Chau.  She suffered her injuries when she chose to get on the escalator behind the two men in order to assist them.

67.  It is quite right, as was held by Bokhary PJ in Cathay Pacific Airways Ltd v Wong Sau Lai, FACV 1 of 2006, that the standard of care required of an employer is a high standard since personal safety is at stake.  That must be so when the duty of care arises not from mere proximity, but from the relationship of employer and employee.  But the high duty of care does not require the employer to be a general insurer for the employee.  In this case it was a pure accident when one of the elderly men fell against the other who in turn fell against Ms Chau, causing injury.  It is precisely this sort of pure accident situation that the Workers Compensation legislation is in place for, to ensure that a worker is compensated, notwithstanding absence of fault on the part of the employer.  Ms Chau has been duly compensated under the Workers Compensation legislation.

68.  Ms Chau's claim for common law damages against Cathay must fail.

Costs:

69.  There will be an order nisi that Ms Chau must pay Cathay's costs of the action, including the costs of the aborted trial, to be taxed on a party and party basis, and upon Legal Aid Regulations.  Ms Chau's own costs will be taxed on Legal Aid Regulations.