LAM PUI YI ANITA v. SECRETARY FOR JUSTICE AND ANOTHER

HCPI 924/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 924 OF 2002

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J U D G M E N T

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1.  This is a claim for damages for personal injuries.  It was on the running list with an estimate of three days.  However, the estimate turned out to be quite erroneous.  The plaintiff is a young Health Inspector (“HI”) of the Food and Environmental Hygiene Department (“FEHD”).  She finished her university education in 1994 and joined the department on 8 July 1996 as an HI II.  On 29 July 1999, she was assigned to work at Tsuen Wan Slaughterhouse (“TW Slaughterhouse”).  Her duties were to inspect the pig carcasses and offal to make sure that they were suitable for consumption by the public.  She also had to inspect the health conditions of the pigs.

2.  In TW Slaughterhouse the carcasses were carried on a slow moving conveyor system for inspection.  Each carcass was hung on an iron gambrel and the gambrel affixed to an iron pulley above it.  The pulley had a wheel that moved along the top of an overhanging rail.  The carcasses were carried along the conveyor system by the pulleys.  There was a carcass inspection area through which the conveyor system would travel and the HI carried out the inspection in this area.  Opposite the carcass inspection area was an offal inspection area.  The two inspection areas were separated by the line of moving carcasses on the conveyor system.  There were two HIs in each inspection team.  One HI would inspect the carcasses and the other would inspect the offal.  When the carcass inspecting HI had finished about 100 carcasses, the two HIs would swap duties.  Each of them would go to the other inspection area situated on the other side of the conveyor system.

3.  On 25 October 1999 at about 10:45 a.m., the plaintiff had finished inspecting about 100 carcasses.  She then walked from the carcass inspection area to the offal inspection area.  When she was walking across the line of moving carcasses, a carcass together with its gambrel and pulley fell from the moving rail and hit her.  The whole thing hit her suddenly from the upper right direction on the right side of her head, her right neck, right shoulder and arm.  She said she suffered a blackout but did not fall to the ground.  Her knife and sharpening steel dropped from her hands.  She was shock.  She felt dizzy.  She had acute pains in her head, neck, right shoulder and arm.  She was then taken to Yan Chai Hospital for treatment.

LIABILITY

The position of the parties

4.  The plaintiff alleges that she has suffered personal injuries because of the negligence, breaches of contract of employment, beaches of statutory duty of care and breaches of the common duty of care under the Occupiers Liability Ordinance by the 1st defendant, the Government. 

5.  The 2nd defendant is the owner of TW Slaughterhouse.  It also managed the Slaughterhouse at all material times.  It is sued for negligence, breaches of statutory duty and breaches of common duty of care.

6.  The 2nd defendant admitted liability but alleges contributory negligence on the part of the plaintiff.  It also disputes quantum.  The 1st defendant disputes liability and quantum.

The pleadings

7.  The plaintiff pleaded in her statement of claim a number of alleged failures on the part of the 1st defendant.  The alleged failures were to take the necessary precautions for her safety in the course of her work, to provide her a safe system of work, to provide a competent staff to manage the meat inspection service, to provide the proper guidelines, instructions and training relating to the operation at TW Slaughterhouse, to take steps to ensure compliance with the relevant guidelines or instructions, to provide her with proper equipment or means to prevent her from being hit, to provide her with proper training, to ensure that she would carry out her task safely, to comply with the Slaughterhouses Regulations, Cap. 132, to give her adequate warning of the risk of falling carcasses and res ipsa loquitur.  These alleged failures were also repeated in different forms.

8.  In the closing submissions, counsel for the plaintiff focused on the defendants’ duties to provide a safe place of work, a safe system of work, adequate supervision and safe plant and equipment.  There is no dispute that such duties are non-delegable even when the employee is working in premises owned by a 3rd party and using a system of work managed by the 3rd party.

The plaintiff’s evidence

9.  After the accident, the Labour Department conducted an investigation and obtained a declaration from the plaintiff on 8 November 1999.  The plaintiff said in the declaration (page 3 of Bundle 2) that when she was walking close to the line of moving carcasses, she did not notice anything unusual in the moving carcasses or any unusual noise in the conveyor system.  Everything was normal.  She was unclear as to the speed of the conveyor but it was very slow.  She also confirmed that in walking from the carcass inspection area to the offal inspection area, she could avoid the moving carcasses because their speed was very slow.  She did not know the cause of the accident.  There was also no similar incident in the past.

10.  She also gave evidence at the trial.  She said in her witness statement that everyone who had to go from one side of the line of moving carcasses to the other side would have to walk underneath the conveyor and between the carcasses.  She had been doing so since her first day of work on 29 July 1999 at the slaughterhouse.  She did so in compliance with the instructions and directions from her superiors and colleagues.  She was not provided with any helmet and nobody wore any helmet either.  She had also not heard of or seen any incident of falling carcasses prior to her accident.  She confirmed this to be the case in oral evidence. 

11.  The 2nd defendant suggested in the course of these proceedings that there was a safe and proper route which was not the one in question.  However, she had not been told about it and did not know it.  In cross-examination, she also said that the route suggested to her by the defendants’ counsel was long, wet and hence dangerous. 

12.  She also said that she had been given training on how to conduct inspection at a slaughterhouse.  The trainer had demonstrated how to move around the carcasses.  That was to go across when there was sufficient space between carcasses. 

13.  When she was crossing the line of moving carcasses in TW Slaughterhouse, she would firstly look at the carcasses when a few steps away.  She would then decide which was the suitable gap to walk through.  If there was no suitable gap, she would wait.  If the gap was enough for her to go through by moving sideways, she would do so.

14.  On the occasion of the accident, she swapped position with another health inspector after inspecting about 100 carcasses.  She chose a gap of about 2 feet wide to cross and she did not have to move sideways.  That was the most suitable gap she found.  She could not wait for too long for a wider gap, otherwise the swapping of position with the other health inspector would be delayed and some carcasses might be conveyed to the market without inspection.

15.  She was cross-examined extensively on whether she could have chosen a different and saver route, a more suitable gap or waited for a longer while for a wider gap.  But at the end, her evidence remained intact.

The defendants’ evidence

16.  The 1st defendant called a Senior Health Inspector (“SHI”), Mr Lau Wing Kwong to give evidence.  He said in his witness statement that he was the Senior Health Inspector stationed in TW Slaughterhouse since 22 August 1999.  He was familiar with the system of work there.  However, on the day of the accident, he was seconded to the Sheung Shui Slaughterhouse and his place in Tsuen Wan was taken up by another colleague.  He was told about the accident as soon as it happened.  He immediately went to the hospital to see the plaintiff.  He had not given any training to the plaintiff because when he took up duties at TW Slaughterhouse on 22 August 1999, the plaintiff was already performing her duties there.  Furthermore, all HIs had to complete a series of training courses before being assigned to the slaughterhouses.  After completing the courses, they would have acquired the necessary skills and been familiar with the daily duties at the slaughterhouses. 

17.  Regarding the operation at TW Slaughterhouse, he confirmed that the HIs would have to swap positions after inspecting about 100 carcasses.  The reason being that the inspection of carcasses was a more arduous task as the carcasses were all hung up whilst the offal conveyor was at waist level.  He also confirmed the need for the HIs to go underneath the carcass conveyor and between the moving carcasses in the course of swapping. 

18.  He referred to the availability of two routes with each leading to one end of the offal inspection table.  One led to a wide stretch for crossing underneath the carcass conveyor whilst the other led to a narrower stretch.  If one should go by the route with a wider stretch, one would have more available gaps to choose.  Both routes were however used by the HIs in the swapping.  The plaintiff used the route with the narrower stretch when she met the accident.

19.  Mr Lau thought the plaintiff was struck by a carcass from the side because the top of a carcass when hung on the conveyor was about one to two feet above the head of the person passing by.  The carcass was almost side-by-side with the person passing by.

20.  He had heard of occasional falling of carcasses from the conveyor, but almost all happened at the starting point of the conveyor where the workmen hung up the carcasses.  But he had not heard of any accident at work caused by a falling carcass save the one that hit the plaintiff.  He was not examined on where else did carcasses fall, whether they fell together with the iron gambrels and iron pulleys and, if so, whether their fall at the other places constituted any danger to the people working at the slaughterhouse including the HIs.

21.  Regarding the operation of TW slaughterhouse, for matters of day-to-day management particularly on hygiene, he would give advice to the management of the slaughterhouse.  For other matters, the discussion would be between his seniors and the management of the slaughterhouse.

22.  The witness statement of another HI I Chan Chak Cheung was admitted into evidence.  He was the plaintiff’s inspection team-mate at the time of the accident at TW Slaughterhouse.  He said:

“5.    Though I had sometimes seen pig carcasses falling off from the overhead conveyor, I perceived no imminent danger in taking those routes as it was reasonable for one to take care of himself and cross the underneath of the overhead conveyor at the right time.  So far as I am aware, I have not heard of no (sic) work accident arising from falling of pig carcasses apart from the plaintiff’s.”

23.  The slaughterhouse was owned and managed at all material times by the 2nd defendant.  The supervisor of the maintenance team of the slaughterhouse, Mr Chung was also called.  He has also made a witness statement.  He said in the statement that he had been working in the maintenance team since 1983 and was promoted to be the supervisor of the team in August 2002 after the retirement of the previous supervisor.  There were three slaughter lines.  Two lines were being operated alternatively and the third line reserved for backup.  The maintenance technicians were on duty between 9:00 a.m. to 6:00 p.m.  There were two technicians on overtime everyday from 7:00 a.m. to 9:00 p.m. 

24.  There were three slaughtering time slots.  They were from 2:00 a.m. to 6:00 a.m., 7:00 a.m. to 9:00 a.m. and 10:00 a.m. to 12:00 noon.  The maintenance team performed cleaning and maintenance works on the slaughtering system during the breaks between the slaughtering time slots and in the afternoon.  In addition, the two technicians on overtime also performed maintenance checking on the backup slaughter line to ensure proper functioning.  If there should be any fault or problem relating to the slaughtering machine, there would be a change of the production line and the health inspector working there as well as the maintenance team would be advised of the change.  The problem would then be fixed by the technicians.  Furthermore, there was an overhaul of the system in July 1999 by the engineers of the manufacturer. 

25.  Each carcass was hung on a gambrel that was attached to a pulley.  The pulley was transported by the overhead rail.  Mr Chung confirmed that the carcasses would be inspected at the carcass inspection area by an HI in the course of transport.  During operation, the carcasses moved slowly.  They could be turned around for 360^o for inspection.  The HI after inspecting about 100 carcasses had to swap position with another HI to inspect offal.  For this purpose, the two HIs had to walk underneath the conveyor and through a gap between overhanging carcasses to the other inspection area.  Mr Chung’s evidence in his statement was basically unchallenged and I accept it.

26.  He confirmed in oral evidence that the role of the FEHD in the slaughterhouse was to check whether the pig carcasses and offal had any problem before they were sent to the market.  The department also monitored the conduct of the 2nd defendant to ensure compliance by the 2nd defendant of the slaughterhouse licence conditions.  However, the department was not entitled to participate in the day-to-day operation of the slaughterhouse.  It does not have any authority to admit any outsider into the slaughterhouse.  He also confirmed that when the SHI raised problems on the cleanliness or hygiene of the slaughtering house, the staff of the slaughtering house would be required to address to the problems immediately.

27.  He also said that the staff of the 2^nd defendant would slaughter on average about 200 pigs in an hour.  That meant about 200 pigs would pass through the carcass inspection area in an hour.  If the carcasses were evenly spaced on the conveyor, the traveling time between any two of them would be about 18 seconds.  That was also the time for inspection of a carcass or the time gap for one to walk pass the line of carcasses.  He also said in his statement that the plaintiff could have walked to the other side of the conveyor by pushing away a carcass and to walk pass the gap. 

28.  However, the plaintiff said in re-examination that she had examined 100 carcasses from 10:30 a.m. to 10:45 a.m.  That meant an average inspection speed of 400 carcasses per hour or an average inspection time of 9 seconds per carcass if they were evenly spaced.  If they were unevenly spaced, the larger gaps would have longer traveling times whilst the smaller gaps would have shorter ones. 

29.  Even if the average inspection time should be 9 seconds per carcass instead of 18 seconds, the conveyor was still moving quite slowly.  If there should be gaps narrower than 9 seconds, there would likewise be gaps wider than that.  One can certainly walk across the line of carcasses in a few seconds.

Submissions and decision on liability

30.  Counsel for the plaintiff relied on McDowell v FMC (Meat) Ltd (1968) 3 KIR 595 and submitted that an employer before sending his staff to work at a particular location should establish that the place is reasonably safe for the proposed work.  The employer may require the premises and the system of work to be made safe before permitting his staff to work there. 

31.  Counsel also relied on Gledhill v Liverpool Abattoir Unity Co. Ltd [1957] 1 WLR 1028.  That was also a slaughterhouse negligence case.  The trial judge found the employer liable because it was known to the employer before the accident that the system of work was unsafe.  The chain used to hold the hind legs of carcasses was unsuitable and there were previous cases of carcasses slipping out of the chain and fell for some 14 feet to the floor below.  Before the accident, there had been frequent complaints to the foreman about the unsatisfactory features of the chain.  The English Court of Appeal took the view that it was open to the employer to devise a safe system of work.

32.  The scenario in the present case is different.  There is no evidence of anything wrong about the system of work or the overhead conveyor system.  For previous occasions of carcasses falling off the conveyor, Mr Lau Wing Kwong said almost all of them happened at the starting point where carcasses were being hung up.  There was no evidence on the set-up and construction of the system at the starting point.  The swapping point where the plaintiff was injured was quite far away from the starting point.  The carcasses also appeared to be securely hung on the conveyor as they could be manipulated and turned around for 360^o during inspection.  Mr Lau has also said that the head of the carcass when hung up was only one to two feet above the head of the person passing by. 

33.  The plaintiff also told the Labour Department that she did not notice anything unusual in the moving carcasses or any unusual.  Everything was normal.  In walking from the carcass inspection area to the offal inspection area, she could avoid the moving carcasses because they moved very slowly.  She did not know the cause of the accident. 

34.  Mr Chan Chak Cheung’s evidence was admitted without cross-examination.  He said in his statement “Though I had sometimes seen pig carcasses falling off from the overhead conveyor, I perceived no imminent danger in taking those routes as it was reasonable for one to take care of himself and cross the underneath of the overhead conveyor at the right time.”  He did not refer to the location(s) where the carcasses fell.  Assuming that he had seen them falling at points other than the starting point of the conveyor, he did not say whether they fell with or without the gambrel and pulley.  If they fell without the gambrel and pulley, the weight would be lighter and the impact less severe.  In any case, Mr Chan did not perceive any imminent danger in using the swapping points despite what he had seen.  The plaintiff was injured by the falling of the carcass together with the gambrel and pulley, not by a carcass falling by itself.  The 2^nddefendant’s admission of liability was also for the failure to maintain the conveyor system, not for a defect in the design of the gambrel and/or the pulley or the fall of a carcass without the gambrel and pulley.  Mr Chan’s evidence, which is very general and imprecise, cannot assist the plaintiff.

35.  I have noted above the undisputed legal position that even when an employee is working on third party premises using a system owned and managed by the third party, the employer still has the obligation to ensure that both the place of work and the system of work should be safe.  These duties are not delegable. 

36.  However, there is no allegation of any specific problem in the premises or in the system of work that had led to the happening of the accident.  There is also no allegation of what the 1st defendant had specifically failed to do which led to the accident.  The unchallenged evidence of Mr Chung also shows that there was a proper conveyor system at work together with a proper maintenance system in place.  There was no known undesirable feature in the system.  There was no previous accident.  The allegation of breach of employer’s duty is thus unsupported. 

37.  Counsel for the plaintiff submitted that since the 2^nddefendant has admitted liability for negligence, the 1^stdefendant would therefore be liable as it was the direct employer.  This submission is incorrect.  The 2^nd defendant admitted liability for itself only.  It did not do so on behalf of the 1^stdefendant.  The burden is on the plaintiff to prove the liability of the 1^stdefendant.  If the plaintiff should fail to do so, the admission of liability by the 2^nd defendant does not assist her at all.  Otherwise, once the 2^nd defendant has admitted liability, the 1^st defendant should also be found liable and there will be no need to try the issue of liability of the 1^st defendant. 

38.  Counsel for the plaintiff therefore further submitted that because the 2nd defendant has admitted liability for failing to keep the overhead conveyor in good repair and condition, it is misconceived for the 1st defendant to rely on the evidence of Mr Chung that there was an overhaul of the conveyor system in July 1999 or that there were 2 technicians employed by the 2nd defendant to maintain the conveyor system as neither the overhaul nor the 2 technicians had kept the conveyor in good repair and condition.  I also eject this submission.  I repeat that it is for the plaintiff to prove the liability of the 1st defendant. 

39.  There is evidence of the maintenance system as manned by the technicians.  With this system in place, the conveyor system has worked for years without accident.  The recent overhaul in July 1999 was a further assurance that the system was in order.  The plaintiff has to show what has gone wrong and that the plaintiff knew or ought to have known about it.  The admission of liability by the 2^nd defendant for failing to keep the overhead conveyor in good repair and condition does not show what has gone wrong or that the 1^st defendant knew or ought to have known about it.

40.  Counsel for the plaintiff further argued that there is no evidence that the 1^stdefendant had satisfied itself that the conveyor system was fully maintained by engineers and technicians.  I find as a fact that the 1^stdefendant was aware of the existence of a maintenance system in TW Slaughterhouse.  Even if the 1^stdefendant was not aware of the details of this system, so long as the system was a proper one, the 1^stdefendant would not be liable for negligence.  However, if the 1^stdefendant did not bother about the safety system and it turned out to be inadequate and resulted in an accident, the 1st defendant may then be liable for the consequence.  I find that the plaintiff has not proved anything wrong with the conveyor system or the maintenance system or that anything wrong, which was the cause of the accident, was known to the 1^stdefendant.

41.  Counsel for the plaintiff also argued that the 1^stdefendant was an occupier of TW Slaughterhouse.  Counsel referred to the 1^stdefendant’s statutory powers to consent to the exclusion by the 2^nddefendant of persons from the premises of the slaughterhouse.  He impliedly argued that the 1^stdefendant therefore had the power to exclude persons from the slaughterhouse.  I again do not agree with this.  The statutory power was not for the 1^stdefendant to exclude anyone, but for it to consent to the exclusion by the 2^nddefendant. 

42.  Counsel further argued that since the 1^stdefendant had the duty to ensure the safety of the place of work and the system of work even when work is done in third party premises, the employer therefore has control over the provision of a safe place and system of work.  The 1^stdefendant therefore was in relevant control of the operations within the slaughterhouse.  It therefore had duties to the plaintiff both as an employer and occupier.  The obvious fallacy of this argument is to equate the obligation to secure a safe place and a safe system of work with the ability to control the operation.  I think the employer should refuse to send its employees to work in third party premises if the place and the system of work are not safe.  The employer should also make all endeavours to ensure that the place and the system of work are safe.  However, it does not mean that the employer thereby has control of the place or system of work or the operation.

43.  Counsel also relied on the evidence of the defence witness Superintendent Mr Tsui Hing Yin (“Mr Tsui”) that if the conveyor system should have some problems, the FEHD should have the power to stop it.  That is obviously an exercise of the power under regulation 34 of the Slaughterhouses Regulation, Cap. 132BU, which provides:

 “(1) A person who is employed by a licensee or who is permitted by a licensee to work in a licensed slaughterhouse shall obey every lawful order given to him by the licensee or by an authorized officer and shall at all times conduct himself in the licensed slaughterhouse in an orderly manner.

(2) If a person fails to comply with an order given to him under subsection (1), the licensee, his employee or agent may require, with the consent of an authorized officer, the person to leave the licensed slaughterhouse forthwith.  (78 of 1999 s. 7)”

I do not think the possession or exercise of such power would make the 1^stdefendant the occupier of the slaughterhouse.  Otherwise, the power to close unlawful eating establishments can make the 1^stdefendant the occupier of such establishments too.  The exercise of this power also has nothing to do with occupying the slaughterhouse.  The 1^stdefendant need not occupy the slaughterhouse in order to exercise this power.

44.  I agree with the submissions of counsel for the defendants that the presence of the 1st defendant at the slaughterhouse through its staff was only for the statutory purpose of controlling food safety and hygiene.  Its staff were just visitors to the premises.  I hold that the 1st defendant and its staff were not occupiers of TW Slaughterhouse.

45.  Counsel for the plaintiff also suggested that there could be the provision of sufficient manpower to avoid the need for the health inspectors to swap their duties.  However, swapping was not because of insufficient manpower, but because the inspection of carcasses was a more arduous task than the inspection of offal.  The swapping was to ensure a fair sharing of the arduous task. 

46.  Counsel also suggested the provision of shorter gambrels and a platform for inspecting the carcasses to avoid injury from falling carcasses.  But the plaintiff was not injured by falling carcasses in the course of inspection.  There is also no evidence that carcasses had fallen when being inspected. 

47.  The doctrine of res ipsa loquitur can operate against the 2nd defendant, but I cannot see how it can make the 1st defendant liable.  There was a maintenance team to keep the conveyor system in good repair and condition everyday and there was no known safety problem.  There was nothing to put the 1st defendant on enquiry on whether the place or system of work was safe.  This is particularly so when the conveyor system had just been overhauled by the engineers of the manufacturer in July 1999. 

48.  In the premises, I find the 1st defendant not liable.  I therefore dismiss the plaintiff’s claim against the 1st defendant.

Submissions and decision on contributory Negligence

49.  Regarding the 2nd defendant’s counterclaim that the plaintiff should be liable for contributory negligence, I think there is no basis for it.  The plaintiff had been taught how to walk pass the carcasses.  She did so in the same manner and through the same route as the other HIs did before and after her accident.  The evidence of the SHI, Mr Lau made it clear that the HIs were still walking through the carcasses in the same way after the accident and there was no need to adopt any change. 

50.  Counsel for the defendants submitted that the plaintiff intended to go through a gap of carcasses of less than 2 feet wide.  I do not think that that was the plaintiff’s evidence.  But even if she had chosen a gap of less than 2 feet, she could still have passed through by walking sideways.  I also hold that even if the plaintiff had chosen a gap of less than 2 feet and touched a carcass in the course of crossing, the touch could not have derailed the pulley and gambrel if the pulley was properly hung on the conveyor.  I say so because it is the defendants’ evidence that the carcasses when hung up on the conveyor could be manipulated.  They could be turned around for 360^o.  The HIs when conducting inspection also had to cut open certain parts of the carcasses like the lymph nodes.  The pulley and the gambrel should not fall simply upon the carcasses being touched.

51.  I also hold that the accidental touching of the carcasses by the plaintiff in the course of crossing the conveyor did not amount to contributory negligence as such touching was inevitable bearing in mind the dynamic nature of the conveyor and the need for expediency in the swapping of positions to avoid carcasses from being sent to the market without inspection.

52.  I therefore dismiss the 2nd defendant’s counterclaim for contributory negligence.

MEDICAL CONDITION

The orthopaedic assessment reports

53.  A number of medical reports have been produced.  Many of them were by treatment doctors and some of them are assessment reports.  There are two joint orthopaedic assessment reports.  They were made by Dr David Fang for the plaintiff, Dr Louis Hsu for the 1st defendant and Dr Jack Wong for the 2nd defendant.  The first one was dated 27 October 2003.  It recounted the treatment received by the plaintiff since the date of the injury to January 2003.  After the accident, the plaintiff was taken to Yan Chai Hospital.  X-rays showed no definite bony lesion.  She was treated and discharged.  However, she had persistent pains.  She therefore attended the Jockey Club Clinic at Tseung Kwan O (“TKO”).  The analgesic given did not relieve her pains.  She then went to the Jockey Club Clinic in Kwun Tong and was referred to the Occupational Health Clinic for physiotherapy.  She was also referred to the United Christian Hospital (“UCH”) for orthopaedics specialist treatment.  She consulted Dr Fang on 12 January 2001.  Dr Fang referred her to MacLehouse Medical Centre where she was admitted from 16 January 2001 to 15 February 2001. 

54.  Her conditions improved upon discharge and she resumed light duties, namely sedentary tasks on 16 February 2001.  She continued to receive physiotherapy at the Yung Fung Shee Memorial Centre (“YFS Memorial Centre”) in Kwun Tong and to attend the Orthopaedic Clinic of UCH.  The orthopaedic surgeon of UCH referred her to the psychiatric clinic there.  It was for treatment of her intractable pain and symptoms of anxiety.  She was diagnosed to be suffering from adjustment disorder with mixed anxiety and depression.  A report dated 25 January 2002 by the occupational therapy department of UCH said that she had right-sided neck plain which limited her ability to work and her working capacity did not match her original job demands.

55.  On 13 March 2002 when attending a lecture in the course of work, she suffered sharp pain on the neck radiating to the left shoulder.  There was also numbness of her left upper limb and cramps in the left lower limb.  She was admitted to Queen Mary Hospital (“QMH”).  The diagnosis showed neck spasm with limited range of motion, brisk reflexes, intact sensation and a positive Hoffmann’s sign over the left hand — (increased mechanical irritability of the peripheral nerves).  X-rays showed diminished cervical lordosis.  Her conditions improved upon discharge on 18 March 2002.  An appointment was made on 18 March 2002 for somato-sensory evoked potential studies.  MRI of cervical spine was also done on 18 May 2002.  It showed degeneration of the C6-7 disc with postero-lateral protrusion resulting in narrower spinal canal.  She then received physiotherapy from the TKO Hospital until January 2003.  She continued to receive treatment from the orthopaedic and psychiatric departments of UCH.

56.  She told the three orthopaedic experts that she had persistent neck pain, numbness in both hands that increased in bad weather.  She also had pain in the left thigh associated with frequent cramps in her legs.  She also had headache, pain at trapezius area when reaching behind with her hand and itchy skin eruptions on her hands and neck.  Her concentration at work was poor.  She could not lift heavy objects like specimens for examination.  She could not reach up to and access high places that required standing on chairs or ladders and extension of neck.  She could not squat down to reach low places like examining drains and concealed places.  She could not use tools to dissect carcasses for health inspection.  She could no longer play badminton, squash, tennis or bowling which she used to do.

57.  The examination by the three doctors showed that her neck extension was limited to 20^o after repeated attempts.  There was tenderness on palpation of cervical spine at C5-6-7 level in mid-line and at C2-3 facet joint over the right side.  Tenderness was also elicited on palpation of right upper trapezius and supraspinatus area.  Positive impingement signs for the right shoulder with pain elicited in full flexion, abduction and adduction.  Internal rotation of the right shoulder was limited.  Motor power diminished in the right superaspinatus, infraspinatus and rhomboids associated with pain.  The right supraspinatus, infraspinatus and rhomboids on the right side weakened with pain.  X-rays of the cervical spine on 18 July 2003 showed complete loss of cervical lordosis.  It was partly regained in upper cervical spine upon neck extension.

58.  The experts also found that she walked with a normal gait and there was no obvious deformity of her neck or back.  Her sensation was normal in both upper limbs.  Motor power and sensation were also normal in both lower limbs.  The knee and ankle reflexes were also brisk.

59.  The experts agreed that the plaintiff had suffered injuries to her head, neck and right shoulder by the falling of the carcass on 19 October 1999.  The contusion to the forehead recovered with no residual problem, but the contusion and sprain to the neck led to persistent pain and discomfort over the right of the neck radiating down to the right arm. 

60.  Contusion of the right shoulder led to residual impingement syndrome with pain on extreme motion and associated weakness.  Her recovery had reached the end stage and there would be no further significant improvement.  Her intermittent sick leave up to 4 October 2002 was appropriate.  The persistent pains in the neck and upper limbs and associated symptoms amounted to 6% of impairment of the whole person.  The mild right shoulder impingement syndrome amounted to another 1.5%.  The total percentage of impairment to the whole person was 7.5%.

61.  The experts further took the view that the plaintiff had to remain with her then sedentary duties and should not be able to resume her full physical duties that she was capable of before the injury.  The reasons as I can glean from the report were the problems in her neck, upper limbs and right shoulder.

62.  The doctors agreed that most of the symptoms were consistent with the injury and not pre-existing.  However, the two doctors for the defendants opined that the prolapsed intervertebral disc at C6-7 might not be directly related to the injury.  They also believed that the symptoms of left thigh pain and skin eruptions of the right hand were unrelated to the accident.

63.  Dr Fang took a different view on these matters.  He opined that the prolapsed intervertebral disc did result from the accident.  The cramp like sensation might be related to the prolapsed disc and the skin eruptions related to psychological stress.

64.  The three doctors gave a further joint report dated 8 October 2004.  They said that the plaintiff was suffering from:

(1)    Neck pain and numbness in her hands;

(2)    Right shoulder pain and weakness due to the shoulder impingement syndrome; and

(3)    Left thigh pain and cramps in the left leg.

They agreed that the plaintiff would have difficulty in:

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

(2)    Reaching high places above head level that involve climbing and extending her neck.

(3)    Reaching to very low places requiring a crouching position.

(4)    Using fine tools such as in the dissection and 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.

65.  Dr Fang gave a further report dated 29 November 2004.  He believed that the prolapsed disc was caused by the injuries and was the primary cause for the neck pain and numbness.  He said provided the plaintiff’s post-injury stress disorder was well controlled, anterior disectomy and spinal fusion at C6-7 level should give a good chance of substantial relief of her neck pain and numbness of her hands.  But the other two doctors did not share this opinion.

66.  Dr Jack Wong also gave a supplementary report dated 25 July 2005 for the 2nd defendant.  He referred to a treatment report dated 3 January 2001 by a Dr Suen of the Orthopaedic Department of UCH.  Dr Suen referred to an MRI of the cervical spine and right brachial plexus of the plaintiff done on 24 October 2000 and no abnormality was detected.  (He also referred to an MRI purportedly done in 2001 at Prince of Wales Hospital which was later proved to be a mistake.)  The prolapsed disc was first shown on 18 May 2002 which was more than 2½ years from the accident.  Dr Jack Wong thought that if it was indeed caused by the accident, it should have appeared in the previous MRI film.  He therefore opined that prolapsed disc did occur in asymptomatic adults.  The plaintiff’s prolapsed disc could just be an incidental finding.  He also opined that the plaintiff’s neck pain and numbness of hands were not due to the prolapsed disc because the MRI of 18 May 2002 showed a left postero-lateral disk protrusion at C6-7 whilst the plaintiff’s symptoms were worse on the right side. 

67.  The experts examined the plaintiff on 18 July 2003 which was nearly three years and 10 months after the accident.  Despite their findings that the plaintiff was still suffering from pains in her neck, right shoulder and left thigh as a result of the accident on 25 October 1999, they did not mention or identify any orthopaedic reason or physical lesion that could give rise to these symptoms.  Dr Jack Wong instead in his supplementary report opined that her symptoms were due to post-injury stress disorder.

Dr Singer’s first psychiatric assessment report

68.  There are four psychiatric assessment reports.  Two of them were made by Dr Singer for the plaintiff and dated 2 July 2003 and 11 April 2007 respectively.  The third one was by Dr Mak Ki Yan for the 1st defendant and dated 19 October 2005.  Dr Mak made it for use in Employees’ Compensation Proceedings.  The fourth report was by Dr Wong Chung Kwong for the 2nd defendant and dated 11 June 2007.

69.  Dr Singer’s first report was made after an examination of the plaintiff on 18 June 2003 for 2 hours and 55 minutes and an interview of her mother for 15 minutes.  

70.  The plaintiff told Dr Singer that she continued to suffer from pain after discharge from Yan Chai Hospital on the day of the accident.  For a few nights, there were nightly episodes during which she could not move her body or shout.  Each episode lasted for a few minutes.  She slept poorly and had nightmares of the accident since a few days after the accident.  She had fatigue and was depressed and tearful.  Two days after the accident, she went to the TKO Jockey Club Clinic, but thought the doctor unreasonable and did not understand her problem.  The doctor minimized the severity of the impact and assured her of a speedy recovery.  She then went to the Kwun Tong Jockey Club Clinic and was referred to the Kwun Tong Occupational Health Clinic which she continued to attend up to the time of seeing Dr Singer.  She also experienced hearing problem for some time.  She had dermatitis in her hands more than a month after the accident.  It was very itchy.  She was referred to YFS Memorial Centre, East Kowloon Health Centre for treatment. 

71.  In the first few months after the accident, she lost six to seven pounds and had poor appetite.  The painkillers could not remove her pains.  She used a TENSE machine which gave her slight relief.  She had sick leave for a year and stayed at home.  She continued to have pains, could not cope with heavy tasks, or lift objects of more than 2 kgs or climb ladders.

72.  Psychiatrically, she had nightmares, flashbacks of the accident, fear of accident reports or news, fear of overhead objects that might fall on her, distressed when exposed to anything reminding her of her accident. 

73.  She was particularly resentful when her superior insisted that she should return to TW Slaughterhouse to hand in the sick leave certificate.  That distressed her greatly. 

74.  She became irritable, had outbursts of anger and scolded members of her families.  Her sleep was impaired by headache and nightmares.  Her memory, thinking and concentration had impaired.  She had headache which was bursting and that occurred every night from 15 minutes to a few hours.  Painkillers helped at times and enabled her to sleep.  She had a bad mood.  With a scale of depression from 0 for normal to –10 for maximum, her bad mood or depression ranged from –7 to –10.  She had occasional suicidal ideas.  She lost interest in sports activities like tennis, badminton and squash.  Her psychological condition was the worst in the second year after the accident which then improved.

75.  A report dated 10 February 2003 by Dr Tse To Yin of the Psychiatric Department of UCH said that she had been diagnosed to have adjustment disorder with mixed anxiety and depressive reaction.  She was last seen by Dr Tse on 20 December 2002.  The report said that she had a neutral mood but occasionally affected by pain.  Dr Tse however detected no suicidal idea in her.  Her sleep had improved as the shoulder pain had decreased.  She avoided pork-selling stalls.  She was then on clerical duties which she could cope with.  She was given anti-depressant.

76.  At the time of the examination by Dr Singer, she had nightmares two to three times a month and flashbacks of the accident.  They were precipitated by sight of pork or pig carcasses and they precipitated distress in her which made breathing difficult and produced anxiety in her.  The sight of pork also produced nausea and distress in her.  She avoided the site of the accident or her colleagues associated with the accident.  She had fear of objects hung overhead in the street and avoided them.  She woke up nearly nightly with exaggerated startle responses which were followed by hours of insomnia and headache.  She was irritable to her family members.  She felt estranged from superiors and colleagues.  She felt that she had no future in her career or marriage or in having children.  Before the accident, she had good appraisal reports and postings.  (In fact as will be seen below, her appraisal reports up to her examination by Singer were also good.)  Her concentration and memory were impaired.  She had intermittent depressed mood a few times a day when she found that her colleagues were discussing about her or this action.

77.  She worried that she might be regarded as a psychiatric case by the defendant and barred from promotion.  She was then attending the Orthopaedic Clinic of UCH once every two months, the Skin Clinic of YFS Memorial Centre once every two to three months, the Psychiatric Clinic of UCH once every six weeks and the Kwun Tong Occupation Health Clinic once every six weeks.

78.  Her mother said in the interview that she was healthy and a cheerful person before the accident.  She was a perfectionist at work.  She had many friends.  After the accident, she could not take part in sports and was irritable.  She complained of headache and nightmare.  She avoided pork and accident reports.  She avoided overhanging objects for fear of their falling.  She was often distressed and complained that her superiors did not understand her.

79.  During the examination by Dr Singer, she wept for must of the time.  She wept at the thought of the accident and was unable to speak.  She had to rest.  She breathed hard to compose herself.  She sought assurances from Dr Singer that she was not a psychiatric case.

80.  Dr Singer found her thought well organised and speech coherent.  She did not appear to exaggerate and would tell of her improvement.  However, apart from this, there was no mention in the report of any attempt by Dr Singer to verify her claims.

81.  Dr Singer diagnosed her as suffering from Post-Traumatic Stress Disorder (“PTSD”) of a mild degree.  It was shown by her recurrent and distressing re-experiencing of the original traumatic event in nightmares, her avoidance of the stimuli like accident reports which were symbolic of the original trauma, her numbing of general responses in feeling being estranged and her symptoms of increased arousal in sleep impairment, irritability and startle responses. 

82.  Dr Singer further diagnosed that she was suffering from chronic adjustment disorder of a mild degree as characterised by her emotional and behavioural symptoms in response to the accident and its aftermaths like pains, disability and fear of job prospects. 

83.  The prognosis was that there would be continuous but slow improvement.  After the litigation and with treatment, the improvement would be rapid.  She would probably be left with slight residual symptoms and somewhat vulnerable to stresses in future.

84.  Dr Singer recommended 30 sessions of treatment at weekly and later bi-weekly intervals preferably by a private medical practitioner.  The impairment of whole person was 10% and reduced to 3% after treatment.

Dr Mak’s psychiatric assessment report

85.  The second report is by Dr Mak Ki Yan for the 1st defendant and dated 19 October 2005.  It was prepared for use in Employees’ Compensation Proceedings.  It was produced by the 1^st defendant for sue in these proceedings as well.  Dr Mak interviewed the plaintiff on 10 October 2005.  The report showed that the plaintiff had told Dr Mak more or less the same information as she had provided to Dr Singer.  She also told Dr Mak her psycho-socio disabilities.  She could not lecture on topics related to pigs when teaching others about food hygiene.  When taking government transport, she could not sit in vans with low headrests as she felt the pain over the neck when going over a bumpy road.  She had to ask for special treatment but dislike being treated differently.  She could not lift 2 to 3 kgs with her right hand because of pain, numbness and weakness.  She experienced cramps over her leg.  She also had neck tightness when stooping.  She had become irritable to her family.  She had also become withdrawn and tried to hide herself from her relatives.

86.  Dr Mak found the contents of her speech relevant and coherent but she denied of any paranoid ideas towards her colleagues.  She insisted that her department owed her an apology.  Her memory was intact and appeared fine.  She could give a logical account of her accident.  She was normal in cognitive reasoning.  She admitted that she was depressed but felt that she had no mental disorder.  She refused psychiatric care save for helping her to sleep.

87.  Dr Mak opined that most of her psychological disabilities were due to psychological distress.  Her premorbid personality of perfectionism could make her more vulnerable.  Part of her disabilities could also be affected by the limited physical strength of her right upper limb.

88.  Dr Mak diagnosed that she was more likely to be suffering from PTSD than adjustment disorder.  However, both were part of the Stress Related Psychiatric Disorder Continuum, Dr Mak did not think that their difference would affect much of the degree of psychosocial disabilities.

89.  Dr Mak further opined that her denial of mental disorder and reluctance to receive psychiatric treatment including psychotherapy could prolong her sufferings.  Her relationship with her seniors and colleagues could also affect her progress in therapy. 

90.  On prognosis, Dr Mak said the degree of permanency of her PTSD was quite high, but there was still the possibility of recovery with specific psychotherapy for PTSD and understanding and support from her colleagues.  Dr Mak estimated the degree of permanency for her condition to be 80%.  However, Dr Mak did not appear to have verified the plaintiff’s claims, because he assessed the plaintiff’s psychosocial disabilities on the assumption that the information provided by the plaintiff was true.

Dr Singer’s second psychiatric assessment report

91.  The trial commenced on 14 December 2005 and was adjourned on 21 December 2005.  It was supposed to resume on 9 February 2006.  There were however interlocutory applications and it only resumed on 9 October 2006.  It was further adjourned on 25 October 2006 and resumed on 12 April 2007.  The plaintiff then produced a second assessment report by Dr Singer dated 11 April 2007.

92.  This report was made after an examination for 3 hours and 10 minutes on 30 March 2007.  It showed a marked deterioration of the plaintiff’s psychiatric condition which had become much more serious.  It revealed that the plaintiff had continued attending the Orthopaedic Clinic of UCH till sometime in 2005.  She was then told that there would be no further improvement and was referred to the family medicine clinic.  She continued the follow up there.  Her mental condition fluctuated with the severity of her headache and physical symptoms.  She continued to attend the psychiatric clinic of UCH.  She also received counselling from a clinical psychologist.

93.  She attended the trial of this action in December 2005 and October 2006.  She found this very stressful.  She wanted to forget about the trauma in 1999 but was questioned about it many times.  She thought her supervisor had given her a poor and unfair appraisal report because of the newspaper report of this litigation.  Since December 2005 (when the trial commenced), she felt generally more stressed and her condition worsened.  Her court appearance in October 2006 made her feel very distressed.  When returned to work afterwards, she became very stressed and agitated and had severe headache.  She attended the Day Hospital of UCH for several months.  She became very frightened in going out.  The advent of the year of the pig in February 2007 aggravated her fear.  She could not continue attending the Day Hospital.  She then had follow up with the clinical psychologist as an outpatient.

94.  She was on sick leave since 2 November 2006.  She told Dr Singer that she was taking painkillers four to five times a day which produced partial relief only.  She had pain in both shoulders and could not carry more than 2 kgs.  She had numbness and a pricking sensation in her upper arms and hands.  She had cramps in her legs and more pain in the left leg than in the right.  She also had dermatitis on her right hand and neck.

95.  Regarding her psychiatric complaints, she had a generalised headache with a sensation of tightness.  The intensity was at 9 degrees in a scale ascending from 0 degree to 10 degrees.  It happened almost daily and lasted up to 10 hours.  The ache was precipitated by bad weather, stress and neck pain.  Painkillers only worked at times.  She had nightmares of the accident five times a week.  She had flashbacks of the accident at the sight of pigs, hooks and metal pulleys in slaughterhouses and when she mentioned about pigs in her lectures and seminars at work.  She feared of news and sight of pictures and symbols about pigs and pork.  She avoided thoughts and conversation of her accident as well as the site and people related to it.  She had a sense of detachment from people including her family.  She suffered a loss of warm feelings for others including the sick and those close to her.

96.  She feared that she might lose her job because of her weak upper limbs and poor concentration.  She did not know what other job she could do.  She had no plan for marriage.  She had difficulty in falling asleep and her sleep was interrupted by nightmares and waking with exaggerated startle responses.  She was irritable to her family but suppressed her irritability with her colleagues and members of the public.  Her depressive mood was at 9 degrees.  She got tearful and had no job satisfaction. 

97.  She recalled that the Chief Health Inspector (“CHI”) supervising the slaughterhouse had asked her not to take sick leave, but she refused.  As a result, she was not well treated by her employer.  She had suicidal ideas a few times per month.  She lacked energy and had severe fatigue.  She had tried to vomit about once a week for suspicion that she had eaten pork.  Her then stresses were her symptoms and disabilities, her feeling of being a burden to her family and friends.  She was also stressed when the defence witnesses said things at the trial that she disagreed with.

98.  She was then attending the Clinic of Family Medicine of UCH once every few months, the Psychiatric Clinic of UCH once every two weeks, the Skin Clinic of YFS Memorial Centre once every few months, the Occupational Therapy Department of UCH once every two weeks and TKO Hospital for physiotherapy once a week.  She was also attending the Kwun Tong Jockey Club Clinic for severe symptoms.

99.  Dr Singer also referred to a report by a Dr Tsang Lo Wah of the Department of Psychiatry of UCH and dated 28 February 2007.  Dr Tsang said:

“… Ms. LAM has been known to Psychiatric clinic since March 2001.  The diagnosis was mixed anxiety and depressive disorder precipitated by the injury on duty in 1999.  According to case notes, she had repeated adjustment of psychotropic medications, and since 13.11.2006 she has been on psychotherapy by Clinical Psychologist.  She also attended Day Hospital since 21.11.2006 for closer follow-up and treatment involving a multidisciplinary team.  Despite these her anxiety and depressive symptoms persisted.  She was noted to have intense anger towards her boss, whom she accused of being unfair and negligent by being unable to ensure work safety. 

“… She reported fear towards meat or heavy objects that might fall down, e.g. decorations on the street, as these would immediately lead to recollection of the accident, followed by palpitation and shortness of breath.  She might be less suitable for work that would expose her to those objects until there is better control of her symptoms …”

100.  At the examination by Dr Singer, she wept copiously and uncontrollable when talking of her symptoms and disability.  The examination had to be interrupted several times for her to regain control. She was depressed and tense.  Her main preoccupations were her symptoms and disability, this litigation, the lack of sympathy from her superiors and her worries about her career.  She complained that the Government was unfair to her and insisted that the Government should admit liability for her injuries and apologize to her.

101.  Dr Singer found that her thoughts were well organised and her speech was relevant and coherent.  Dr Singer diagnosed that she was suffering from chronic PTSD of a moderate degree as a direct result of the accident.  She was also suffering from chronic adjustment disorder with depressed mood of a moderate degree.

102.  Dr Singer also found that she was consistent in her account of herself, her pattern of symptoms fitted the diagnosis and her copious weeping when telling of the symptoms was difficult to simulate.  Dr Singer therefore concluded that her complaints were genuine. 

103.  On prognosis, Dr Singer opined that her condition had deteriorated since the last examination in 2003 especially in the 1½ years before this examination.  She should receive intensive psychiatric treatment of 52 bi-weekly treatment.  The impairment of the whole person was 25% reducing to 10% after treatment.  Her impairment would then be in the mild degree.  She would still suffer from anxiety, impaired concentration, flashbacks, irritability, lack of energy and fatigue.  These would affect her efficiency and motivation for work.  Dr Singer also took the view that the sick leave given to her was appropriate. 

104.  It is important to note that Dr Singer’s two reports were prepared without the benefit of the appraisal reports of the plaintiff’s performance in her employment.  Dr Wong Chung Kwong referred to these reports extensively in his assessment of the plaintiff. 

105.  In Dr Singer’s first report dated 2 July 2003, the plaintiff was diagnosed to be suffering from PTSD and adjustment disorder both of the mild category.  On prognosis, the first report said the disorders were likely to improve and to improve rapidly with treatment.  After treatment, she would probably be left with residual symptoms and be somewhat vulnerable to stresses in future.  Dr Singer at that time suggested 39 sessions of treatment with medical and psychotherapy.  The impairment of the whole person as caused by the psychiatric condition was at 10% reducing to 3% after treatment.

106.  Dr. Tse To Yin of UCH in his report dated 10 February 2003 (which has been referred to by Dr singer in his first report) also said that:

“Concerning about your questions, no hospitalization in our psychiatric unit was recorded and no sick leave had been granted to her in our clinic.  Her degree of permanent psychiatric disability was in the range of 3 percent.  She was fit to work as a health inspector psychiatrically if she could overcome the avoidance behaviours towards pork related places. No sick leave period was needed psychiatrically as a result of her injury.  She still felt anxious with some avoidance behaviours when experiencing situations related to the injury, which might affect her job as a health inspector.”

From Dr. Tse’s report, the plaintiff’s psychiatric condition did not appear to be very serious.

107.  However, in Dr Singer’s second report, the PTSD and adjustment disorder had both worsened mild to moderate degree.  There were additional symptoms.  The treatment proposed had increased to 52 bi-weekly sessions.  The impairment of the whole person had also become 25% reducing to 10% after treatment. 

108.  Counsel for the defendants also pointed out that from December 2001 to October 2002, the plaintiff was only on sick leave for 17 whole days and they were all for non-psychiatric reasons.  From 13 September 2005 to 31 October 2006, she was given nine whole days of sick leave and only three whole days related to her psychiatric condition.  But from 2 November 2006 to 23 April 2007, she took 173 days of sick leave all because of her psychiatric condition.

109.  All these showed a marked deterioration of her psychiatric condition.  The 2nd defendant therefore applied for leave to have her examined by its own psychiatric doctor and to produce its own expert report.  Leave was given and the trial was adjourned on 13 April 2007. 

Dr Wong Chung Kwong’s psychiatric assessment report

110.  The 2nd defendant produced an expert report by Dr Wong Chung Kwong on the plaintiff and dated 1 June 2007.  It was prepared after two examinations on 14 May 2007.  The first examination was for 3½ hours in the morning and the second examination was for one hour and 50 minutes in the afternoon.  There was also an interview of the sister for 10 minutes.  Dr Wong’s conclusions are different from those of Dr Singer.

111.  Dr Wong divided his diagnostic exercise into three phases.  The first phase was from the accident to 19 December 2000, the date before she resumed duty.  The second phase was from 20 December 2000 when she resumed duty to 28 June 2005, her last day of work in the Provisional Licensing/Resource Centre.  The third phase was from 29 June 2005 onwards.

The 1^st phase – 25 October 1999 to 19 December 2000

112.  For the first phase, Dr Wong referred to a report dated 30 October 2001 by the plaintiff’s treating psychiatrist, Dr Lee Tin Ho of UCH.  The plaintiff was referred to the psychiatric service by the Orthopaedic Department of UCH.  She went there in March 2001 for treatment of her intractable pain over her right shoulder.  She complained of persistent pains over her right shoulder, right side of neck and anterior chest-wall.  She said she woke up from sleep and had difficulty in sleeping again.  She had functional impairment and could not carry heavy weight or pay most sports.  She had difficulty in concentrating and was forgetful.  She had free-floating anxiety symptoms.  The diagnosis after the first consultation was adjustment disorder with mixed anxiety and depressed mood.  Dr Wong agreed with this diagnosis.

The 2^nd phase – 20 December 2000 to 28 June 2005

113.  This phase started with her resumption of work after sick leave and ended on 28 June 2005 which was her last day in the Provisional Licensing/Resource Centre.  The medical reports showed that the last orthopaedic treatment for the plaintiff was on her admission to the orthopaedic ward of QMH between 13 to 18 March 2002.  Since then, she only had the usual orthopaedic follow up.  A report dated 9 April 2003 by Dr Chan Wing Leung of the Orthopaedic Department of UCH referred to a visit by the plaintiff on 28 February 2003.  The report said:

“Her symptoms subsided much.  Despite some neck pain, she is now able to resume duty as health inspector.  She still needs analgesic occasionally for her neck pain.”

114.  Dr Wong also referred to the joint orthopaedic report by the three doctors and dated 27 October 2003 which opined that the plaintiff had recovered to an end stage.

115.  From these reports and records, Dr Wong took the view that the plaintiff had recovered to an end stage in her physical symptoms in early 2003. 

116.  The plaintiff also continued to have improvement in her adjustment disorder with mixed anxiety and depressed mood.  Dr Wong quoted the diagnosis and findings in several psychiatric reports.  The first report by Dr Lee Tin Ho dated 30 October 2001 has been referred to above under the first phase.  Dr Lee said the plaintiff complained on 11 October 2001 that she was still forgetful and had deceased concentration.  She had broken sleep.  She was unhappy and isolated from her colleagues because she could not resume her previous duty.  She had become irritable if the pain came.  She was tearful when talking about her work. 

117.  From 22 September 2000 (she only resumed work on 20 December 2000) to 31 May 2002 she was in the post of HI(EH) working in the Environmental Hygiene Branch.  She was however only required to discharge indoor light duties because of her pain and the medical advice given in a report dated 19 December 2000 by a Dr. Cheng Hang Cheong of UCH.  There were many outdoor duties in that post and her colleagues assumed her share of such duties. 

118.  She was assigned to the post of HI(RC/PL) on 15 October 2002.  The designation of this post was later changed to HI(LIC/RC).  Her duties were to manage the resource centre, answer enquiries from the public on licensing matters, handling revenue at the Provisional Food Business Licences Issue Office, check certificates of compliance for issue of provisional food licences and to issue the licences over the counter.  There were also some licensing and statistic compilation duties.  There was no outdoor work.

119.  The second psychiatric report referred to by Dr Wong was by Dr Tse To Yin and dated 10 February 2003.  This report has been referred to in Dr Singer’s first report and also quoted above.  When Dr Tse last saw her on 20 December 2002, she was in the post of HI(RC/PL).

120.  The third psychiatric report referred to by Dr Wong was also by Dr Tse and dated 10 July 2003.  It referred to a consultation on 21 March 2003.  It recorded the plaintiff’s mood as neutral and no suicidal idea was elicited from her.  Her sleep was broken.  I note that at this time, the plaintiff was still in the post of HI(RC/PL) managing the Resource Centre and the issuance of provisional licences.

121.  The fourth psychiatric report referred to by Dr Wong was made by Dr Wong Sze Yu and dated 10 February 2004.  The relevant part reads:

“The psychiatric diagnosis is adjustment disorder with mixed anxiety and depressive reaction.

After treatment with antidepressant medication and counselling, Ms. LAM’s mental state improved in terms of reduced anxiety and depressive symptoms, although she still avoided places with load of pork.

Further deterioration of her mental state is unlikely.  Ms. LAM is expected to have further improvement in her mental state if psychological means, including exposure and response prevention, was combined in the treatment.  Appointment with clinical psychologist is already arranged.

Currently, Ms. LAM can cope with her job in her current working environment but she still avoids cues related to the industrial accident in 1999 with occasional dreams about the incident.

…

Ms. LAM’s mental state is expected to further improve after combination of psychotherapy and antidepressant medication.”

122.  Dr Wong also referred to Dr Singer’s examination of the plaintiff on 16 June 2003 and the diagnoses were PTSD and adjustment disorder both of the mild degree.

123.  From 5 October 2002 to 12 September 2005, the plaintiff had not been given any sick leave on psychiatric ground.  (She was given sick leave on 19 January 2004 and on 21 June 2005 for orthopaedic reasons.)  This period covered the whole of her posting at HI(RC/PL) and HI(LIC/RC) and the first 2½ months of her posting at HI(CR).  In the latter post, she worked in the Communication Resource Unit of the Centre for Food Safety.

124.  Dr Wong also referred to some of the plaintiff’s staff appraisal reports.  The first report after her accident covered 22September 2000 (she only resumed work on 20 December 2000) to 31 May 2001.  She was then in the post of HI(EH) discharging light duties.  Dr Wong did not refer to it.  For completeness sake, I would refer to the reporting officer’s comment on her inter-personal behaviour.

“5.    Ms LAM was a quite and helpful officer.  Whenever she was handling public enquiries or in contact with the licensee/permittee, she always shows her good attitude, politeness, patience and understanding for bringing the good service of a civil servant.

6.  She has also maintained a good relationship with her colleagues.  She was helpful, co-operative and contributed in maintaining a harmonious working atmosphere in the office.”  (emphasis supplied)

These comments do not indicate that she was deeply troubled by any serious psychiatric illness.

125.  Dr Wong referred to the next report covering 1 June 2001 to 31 May 2002.  The plaintiff was still in the post of HI(EH) discharging light duties.  The reporting officer remarked that:

“… She was a good organizer of work and finished her tasks well before the deadline.  Her paper work was always clear and tidy. …  She carried out the duty effectively and efficiently.

On top of the regular returns, there were a lot of ad hoc returns …  Ms LAM accomplished the tasks to my satisfaction.

Besides, she was responsible for conducting special surveys by phone, …  Though the work was quite tedious, she was devoted to her duties. …

Ms LAM was the task master for the hygiene supervisor training courses and putting information of licensed food premises on the internet for the Departmental Website. … She also conducted part of the course.  She tackled enquiries smoothly and set a good image for the Department.  With her full participation, the attendance rate was very high and the passing rate was 100%.  It was through her contribution that the courses had been a success.

Moreover, Ms LAM assisted HIi/c(EH)Wch in …  She relieved the workload of HIi/c to a great extent.

…

I consider Ms LAM Pui-yi’s performance very good during the report period.  Because of her physical condition, I recommend her to be transferred to posts with mainly indoor work.  I have consulted Mr To Chun-fai, ex-SHI(EH)Wch-1, in making this report and he agreed to my assessment.”

126.  The next report covered the period from 1 June 2002 to 14 October 2002.  She was still HI(EH) discharging modified indoor duties.  The same reporting officer wrote about her performance:

“… Her reports were always clear and tidy, and her numerical returns were accurate and meticulous.  She finished her tasks to my satisfaction and submitted our returns before the deadline.  Besides, she organized her work systemically and kept the full set of records in good order.

Ms LAM was the task master for the hygiene supervisor training courses.  She liaised with HIs(LIR) and organized the courses for the licensees/operators of licensed food establishments.  She worked late to prepare the teaching materials and attendance record, … She also conducted the courses herself and tackled all kinds of enquiry smoothly.  She presented the course in full confidence and set a good image for the Department.  Her contribution had not only made the course a success but also smoothed out the path for her successor.

Ms LAM was a very responsible officer.  … Ms LAM was aware that she would leave the office in 2 weeks’ time, she took up the task readily.  The work was very tedious involving a lot of work as there were over 1,500 licensed food premises in Wanchai District.  Because of her physical condition, Ms LAM should have found the work very tiring and affecting her fitness.  Yet she devoted to her job whole-heartedly and sacrificed her free time and worked overtime in Saturday and Sunday to finish the work.  I was much impressed by her sense of responsibility.

Moreover, Ms LAM assisted HIi/c(EH)Wch in …  She relieved the workload of HIi/c to a great extent.

I consider Ms LAM Pui-yi’s performance very good during the report period.  …” (emphasis supplied)

127.  She was transferred to HI(RC/PL) on 15 October 2002.  Her new reporting officer gave her an “outstanding” report for 15 October 2002 to 31 May 2003.  She wrote of her performance:

“Ms LAM worked under my supervision during the reporting period and we discussed various work aspects with each other frequently and from time to time.  She was found to be an efficient and effective officer who has demonstrated outstanding performance in the Provisional Food Business Licences Issue Office and Restaurant Licensing Resource Centre.

She has demonstrated her thorough understanding of whole range of duties and is highly competent in applying her professional knowledge and skills in her day-to-day work.  She contributed greatly in updating content of department web site and survey on customer satisfaction in the Resource Centre.  She has whole hearted application to her work and carries her task through the end, despite the long hours of work required. …

…  She has put forth a lot of constructive ideas while analyzing and presenting the related report.  …

Ms LAM seeks and accepts responsibilities at all times, despite the influx of work with tight deadlines.  She has performed a wide variety of work successfully, like co-ordinating with other departments to stage the Restaurant Licensing Seminars, …  Her output is credible in terms of quantity and quality.

…

Ms LAM is courteous, takes pride in her appearance always, get on well with her colleagues and is a very competent and a co-operative team player. …

To conclude, Ms LAM’s performance has been outstanding.  …”  (emphasis supplied)

128.  Dr Wong observed from the report that the plaintiff not only worked long hours and gave excellent work outputs, she was able to cope with tight deadlines and also maintained good relationship with her seniors and colleagues.

129.  Dr Wong also referred to comments by the report countersigning officer and the Superintendent of the Grade Management Section (“GM Section”).  The countersigning officer said:

“Iam particularly impressed byher politeness and willingness to assist her seniors on top of her office routine … I treasure having her as a member of the team.  As she is still green in the profession, I recommend that she be posted to dedicated streams like prosecution, market management or cleansing to further explore her potentials.”

The Superintendent of the GM Section said:

“Conscientious, courteous and highly competent, Miss LAM discharged her duties as HI(RC/PL) exceedingly well.

An outstanding report is noted.  I am happy to note that Miss LAM is making remarkable progress in her performance.”

130.  For the next report covering 1 June 2003 to 1 June 2004, the plaintiff again got the overall highest rating “outstanding”.  For “Promotability”, the Assessment Panel gave her the highest rating of “strong candidate for promotion”.

131.  In the next report covering 2 June 2004 to 28 June 2005, the plaintiff was working under a new supervisor.  The Grade Manager stated:

“This is the 3rd full report on Ms LAM as an office-in-charge of both the Provisional Food Licences Issue Office and the Resource Office.  Ms LAM has put up a period of very impressive performance under a new supervisor.”

132.  Dr Wong also referred to the plaintiff’s self-appraisal over this period in her Supplemental Witness Statement.  She said her performance was “outstanding”.

133.  Based on the above medical and performance appraisal reports, Dr Wong opined that the plaintiff was by late 2002 or at the latest by mid-2003, suffering only from a mild or a very mild degree of psychiatric morbidity.  This degree of morbidity in no way affected her performance at work.  Dr Wong further opined that by late 2003 at the latest, she had achieved full or nearly fully remission from psychiatric morbidity.  He also took the view that the plaintiff did not have the significant clinical symptom or behaviour for the diagnosis of adjustment disorder with mixed anxiety and depressed mood.  (The symptoms for the disorder have been set out in Diagnostic and Statistical Manual of Mental Disorders, 4th edn. (“DSM-IV”)). 

134.  Dr Wong disagreed with Dr Singer’s diagnosis of PTSD because Dr Wong found that the plaintiff did not exhibit all the necessary diagnostic criteria for PTSD as laid down in DSM-IV.  She did not have any or any significant occupational impairment as required by diagnostic criterion “F” in DSM-IV.  Diagnostic criterion “F” for PTSD stipulated that “[t]he disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”  Dr Wong said that the plaintiff did not satisfy this criterion.

135.  Dr Wong further said that even if the plaintiff had suffered from PTSD, she had fully or nearly fully remitted from it by late 2003 at the latest.  In so saying, Dr Wong again relied on the same ground of absence of the necessary diagnostic criterion in DSM-IV.

136.  In a nutshell, Dr Wong opined that by mid or late 2003, the plaintiff was free from psychiatric disorder for all practical purposes.  She performed in her job in an outstanding manner and functioned in the same manner in the inter-personal aspect of her work.

The 3^rd phase – 29 June 2005 onwards

137.  The third phase was from 29 June 2005 onwards.  The plaintiff was posted to HI(CR)2 and worked at the Communication Resource Unit of the Food Safety Centre.  She was responsible for, among other things, producing health education resource materials in collaboration with other government departments, coordinating and conducting lectures and workshops on food safety and hygiene.  These were for organisations and the public. 

138.  Though Dr Wong did not refer to her staff appraisal report after her transfer to this post, I would for completeness sake refer to it.  This report covered 29 June 2005 to 31 May 2006.  There were some disputes between the plaintiff and her seniors about the grading for certain aspects of her performance.  After her appeal, the Assessment Panel ultimately graded her overall performance as:

“Very impressive performance which more than meets requirements.”

This is the second highest rating with the highest being “outstanding”. 

139.  Her reporting officer also commented her performance as follows:

“… The overall work done was quite good. …  With her positive working attitude, the respective outputs were completed with fruitful outcome. …

Ms. LAM always tried her best in the routine works and carried her duties conscientiously.  She was a practical person and knew very well what was necessary in order to perform her duties.  She was willing to accept responsibilities and set the right priorities in dealing with various tasks independently.  She was a competent officer and always showed good manner to the public when handling the enquiry.  Her performance gave me a deep impression.

As a whole, Ms. LAM is a capable officer and I am very satisfied with her works during the reporting period. …”

140.  I also note here that the trial of this action commenced on 14 December 2005 and was adjourned part heard on 21 December 2005.  That was the middle of the period covered by the report.

The 3^rd phase – 29 June 2005 onwards

141.  For phase 3, Dr Wong analysed three diagnostic issues.  They were persistent multiple severe pains, psychiatric morbidity and abnormal sick role.

The 1^st issue – persistent multiple severe pains

142.  The pains under the first issue are the headache, neck pain, pain in both shoulders, upper limbs, supra-clavicular and scapular regions as claimed by the plaintiff.  She said the pains severely limited her upper limb functions.  Dr Wong referred to the medical reports and the joint orthopaedic assessment reports.  He said there seemed to be no orthopaedic pathological explanations for the very severe pain.  I have also noted above that the orthopaedic assessment reports did not mention any orthopaedic reasoning or identify any physical lesion that could account for the symptoms especially when the joint examination was done nearly three years and 10 months after the accident.  Dr Jack Wong indeed referred to post-injury stress disorder in his supplementary report dated 25 July 2005.

143.  On 16 May 2006, the plaintiff went to the TKO General Outpatient Clinic complaining of neck pain, but physical examination revealed that the movements of her neck and limbs were unremarkable. 

144.  She went to Kwun Tong General Outpatient Clinic on 17 May and 6 June 2006 complaining about neck pain again, but nothing remarkable was found except mild pain on neck movement.  However, she claimed that her headache and neck pain were very severe and were at 9 degrees of a scale from 0 to 10 degrees.  She went to this clinic again on 23 August 2006 and complained of headache and sore throat.  Physical examination showed congestion in her throat and a clear chest. 

145.  She went to the General Outpatient Clinic at Shun Lee Estate in Kwun Tong on 16, 20 and 31 October 2006 because of headache.  A report dated 21 March 2007 by Dr Chan Siu Yuen of the clinic referred to her request for sick leave for rest because of headache.  Dr Chan said that her headache had a strong psychological element.

146.  Dr Wong then pointed out that the doctors in the three clinics who saw the plaintiff at different times did not detect any physical pathology.  Dr Wong concluded that there was no orthopaedic explanation for the plaintiff’s multiple severe pain.  He also opined that it was extremely unlikely that the pain caused by the psychiatric disorders was of such severe and persistent degree as claimed by the plaintiff.  It was also extremely uncommon to have a feeling of tiredness and fatigue to reach the degree as shown by the plaintiff.  Since Dr Wong has also determined under the next issue of genuine psychiatric morbidity that she was not suffering from any psychiatric illness at the time of the examination, Dr Wong therefore concluded that there was no physical or psychiatric disorder that could explain the plaintiff’s alleged persistent multiple severe pains.

Doubt of the plaintiff’s various pains and limitation of functions of her limbs at the time of the examination

147.  Dr Wong further suggested that there was serious doubt about the plaintiff’s severe pains and limitation of upper limb function at the time of the examination.  He came to this view because of his observation of the behaviour of the plaintiff during his psychiatric examination. 

148.  Dr Wong’s report contained a fairly detailed account of his exchanges with the plaintiff as well as the plaintiff’s body language throughout the two examinations of some 5½ hours.  In the first half of the morning session, the plaintiff cried and smiled when talking about her family.  She smiled proudly when talking about her achievements in her education and career.  She told Dr Wong the details of her postings before being posted to TW Slaughterhouse and the training she received.  She then described her work in TW Slaughterhouse and how the carcass conveyor worked.  There was then a short break after 1½ hours.  Dr Wong’s observation for this first 1½ hours was as follows:

“55.   …  To conclude, in the above 1.5 hours, she cried once when she talked about her younger sister.  Otherwise, she remained composed and relaxed in her posture, expression and gesture.  She smiled freely.  Often she expressed how proud she felt about herself.  Her head and neck and upper limbs moved freely in body language corresponding to the topics we were talking.  She did not grimace in pain at all.  Her putting on the neck collar was the only other ‘usual’ behaviour (other than her crying once).”

149.  When the examination continued, the plaintiff was asked to talk about her accident.  She cried and then hyperventilated and then spoke and cried loudly in the course of doing so.  She was however able to calm down and compose herself shortly afterwards.  The examination then moved on to her treatment and her work history until 1:00 p.m.  Dr Wong’s observation of this part of the examination was as follows:

“61.   …  Other than the first 15 minutes of the second half of the morning session when she seemed to be in mental agony, she remained composed in the remaining 1 hour 35 or 40 minutes and did not cry again.  She answered all my questions calmly and coherently.  Her expression, posture and gesture were all normal.  She did not once grimace in pain.  She moved her head and neck spontaneously and naturally in body language corresponding to her verbal responses.  For example, she nodded her head while she answered ‘Yes’.  She shook her head while she answered ‘No’.”

150.  In the afternoon session, the plaintiff talked about the trial of this action and her medical treatment.  She described her current symptoms of headache, neck pain and others.  She wept and shook when talking about her headache, but could stop upon a gentle gesture from Dr Wong.  She wept again when talking about her posting as HI(EH) in Wanchai, but was able to stop again upon a gentle gesture of Dr Wong.  She cried again when asked to evaluate herself, but she was able to stop upon Dr Wong’s request.  She cried for the 4th time when talking about her experience in the post in Wanchai, but calmed down immediately upon request.

151.  One of Dr Wong’s conclusions of the examination is that the plaintiff’s body language did not match with her claim of being in severe pains.  Dr Wong said:

“89.   … She claims unequivocally during my examination that she has very severe headache and neck pain currently, and both are of 9 over 10 in severity.  Yet her body language betrays herself.  She shakes and nods her head normally during the whole examination corresponding to what she is saying.  In particularly, she vividly describes how the slaughtering line works.  She turns her head to the right to show where the carcasses come out.  She then turns her head to the middle to show the carcasses having moved to just before her and she moves her right hand freely to show how she used her knife to cut into the lymphnodes of the carcasses to check if they were healthy (she moves fast corresponding to the quick speed she needs to work).  She then turns her head to the far left to show the carcasses now moving to the end of the slaughtering line on the far left side and she gestures how they fall into the collecting bay.  She moves both upper limbs together to show how she sharpens her knife (that she used to hold in her right hand) on the sharpening steel (that she used to hold in her left hand).  She demonstrates all of the above movements freely and she is not in pain at all.  She does not grimace in pain even once throughout both sessions of the examination.  Her sitting posture is normal.  She shows no spasm of any part of her body and she does not grimace even once throughout both sessions of the examination.  The only behaviour that seems to match with her claim of pain is her sudden putting on of her neck collar.”

The 2^nd issue –psychiatric morbidity

152.  On the issue of psychiatric morbidity for phase 3, I refer to Dr Wong’s overall observation from his examination of the plaintiff.  He said:

“36.   She is in full contact with reality.  Her general physical condition is good.  Her posture, gesture, expression and eye contact are normal.  She speaks clearly and spontaneously.  She does not suffer from any hallucination, delusion or obsession.  She does not grimace in pain throughout the psychiatric examination even when we are talking about her physical condition and symptom.

37. She shows no psychomotor retardation (which is a common feature of the depressive disorders).

38. Her mood resonates appropriately with the topics being discussed.  She smiles and shows that she is proud when she talks about her success in academic matters and about her devotion to her work.  When she talks about the accident and her seniors her mood is angry and unhappy.  She is not depressed.

39. After about an hour from the start of the examination, she asks me if it is alright to wear her neck collar.  I say she is free to do as she pleases.  She then takes out her neck collar and puts it on.  She does that again in the second half of the morning session and also in the afternoon session.

40. Throughout the morning and afternoon sessions she has not coughed even once when she talks calmly.  She coughs in a choking manner when she hyperventilates.”

153.  Dr Wong also tested the plaintiff’s cognitive functions and found them to be all normal.  He concluded:

“87.   Based on my mental state examination, Ms Lam is not currently harbouring any depressed mood or symptoms, even though she claims she is depressed and even though she cries very loudly and sadly.  She retains normal reactivity in her mood in that her mood resonates appropriately with the topic being addressed.  She smiles and talks proudly about her achievements.  She does not show any psychomotor retardation.  Her expression and eye contact are normal except when she weeps and cries she does not look at me but keeps talking with her eyes closed.  In contrast, patients suffering from the genuine depressed mood show a persistent change in mood not affected by outside factors.  It is like the sun covered by thunderstorm.  Their mood change is persistent throughout the examination together with slowing down of thinking, speech and movement.  Their head and eyes are often dropped down.  Their general condition is often poor in that they look worn out and very tired.  In contrast, Ms Lam’s crying spells are over-dramatic; they come and go far too quickly.

88. Based on my psychiatric examination, Ms Lam is not currently suffering from any depressed mood.  Rather she is unhappy and bitter.  Her unhappiness and bitterness have a very clear focus, i.e. the FEHD and the Government and the staff involved.”

154.  Dr Wong therefore concluded that the plaintiff was not suffering from any psychiatric disorder.  He drew further support to his conclusion from the plaintiff’s appeal paper against her appraisal for the period between 29 June 2005 and 31 May 2006.  The paper was very meticulously written with very fine details and careful documentation.  Dr Wong did not think that this very intellectually demanding work was compatible with the diagnosis of mixed anxiety and depression because patients suffering from this disorder have their cognitive functions impaired. 

155.  The plaintiff gave evidence that this appeal paper was prepared by her sister on her behalf and she only provided the information used in the paper.  Her sister also gave evidence, but did not refer to the appeal paper.  I think the appeal paper is a very carefully prepared document.  Even the provision of information for its compilation is a difficult and intellectually demanding task.

156.  Furthermore, Dr Wong had in the consideration of phase 2 already concluded that the plaintiff was not suffering from any psychiatric illness at the latest by the end of 2003.  So Dr Wong said that even if she was suffering from depression at the time of the examination, that had nothing to do with the accident.

The 3^rd issue – abnormal sick role

157.  On the third issue, Dr Wong said that the plaintiff showed the phenomenon of abnormal sick role.  It is not a psychiatric disorder, but a contrived repertoire of illness behaviour.  She was in the healthy role prior to September 2005.  She however took on the abnormal sick role since September 2005 and increasingly so over the few months before June 2007.  Dr Wong identified the probable reasons for this being the plaintiff’s unhappiness with her appraisal for the period from 29 June 2005 to 31 May 2006 and, related to this issue, her worry about her promotion prospect.  As a result, she was very angry with her seniors.  There was also the on-going litigation.

Assessment of the plaintiff’s impairment and sick leave

158.  Dr Wong assessed the plaintiff’s impairment of functioning and her need for sick leave.  For phase one, Dr Wong assessed that she was suffering from adjustment disorder with mixed anxiety and depressed mood.  She would have been able to work, but her working capacity would have been compromised to a mild degree by the psychiatric disorder.  However, her psychiatric condition was overshadowed by her orthopaedic condition.  Dr Wong also agreed with the sick leave which was given for her orthopaedic condition.

159.  For phase 2, Dr Wong opined that from 20 December 2000 to late 2003 at the latest, her psychiatric impairment levels were compatible with most of her useful functioning.  She suffered from a mild loss of earning capacity.  For the rest of phase two, she had no psychiatric impairment.

160.  For phase 3, she was not suffering from any psychiatric disorder and had no impairment of her functioning on psychiatric ground.  There was no need for any sick leave from 2 November 2006 onwards on psychiatric ground.

161.  Dr Wong also did not suggest any psychiatric treatment as abnormal sick role is not based on psychiatric or physical disorder and there is no psychiatric treatment for it.

162.  Finally, Dr Wong commented on Dr Singer’s report.  He said Dr Singer relied mainly on the information given by the plaintiff in coming to his opinions.

The plaintiff’s oral evidence on the examination by Dr Wong

163.  Since the opinions of the two psychiatrists differed so much, they were called and were cross-examined.  Before calling the doctors, the plaintiff also gave evidence again on what happened in her examination by Dr Wong.  She referred to a number of long answers by her as recorded in Dr Wong’s report.  She said that each of the long answers was the result of a number of questions and answers and not just one question from Dr Wong and one answer from her.  For some less important matters, she said Dr Wong had failed to record all that she had said.  She denied of having smiled in the examination.  She also denied that she had no grimace, but said that she had an expression on her face.  She denied of having coughed in a choking manner when hyperventilated.  She said she had a sore throat and did not cough much for the whole morning.  She denied of having extended her neck when she demonstrating how to rest her head on a tall chair at home.  She also denied of having shaken her head in answering Dr Wong’s questions.

Dr Singer’s oral evidence

164.  Dr Singer confirmed in evidence in chief that he had not read the plaintiff’s appraisal reports when he made his two assessment reports.  But he had already done so before giving oral evidence.  The reading of the appraisal reports however did not change his opinions as expressed in his reports.  But he did not explain why.  He said his examination of the plaintiff’s behaviour when giving oral evidence showed that she performed in the same manner as when examined by him.  There was only a small amount of exaggeration which did not distort the picture.  He confirmed that he had elicited some information from the plaintiff in the process of confirming or ruling out the symptoms of specific disorders.  He had also elicited and considered her occupational functioning before and after the trauma of the accident.  He said the plaintiff had not smiled in his examinations, nor did she speak proudly of her achievements.  She was depressed for most of the time.  She harboured bitterness against her employer.

165.  Dr Singer disagreed with Dr Wong in paragraph 8 of Dr Wong’s report.  Dr Wong said in that paragraph that the plaintiff was not then harbouring any distress mood or symptom despite her claim of being depressed and her crying loudly and sadly.  Dr Singer said that if the person was crying, she was depressed though it might not be because of a disorder.  I do not think there is a real disagreement here as Dr Wong was referring to the absence of a psychiatric condition in the plaintiff and not that she was not unhappy.  Dr Wong in his oral evidence also criticised Dr Singer’s failure to distinguished between depression in psychiatry and mere sadness.

166.  Dr Singer further disagreed with Dr Wong in the same paragraph that normal reactivity of the plaintiff meant that her mood was normal.  However, what Dr Wong was really saying was that the plaintiff’s mood resonated appropriately with the topic being discussed and was not affected by psychiatric disorder.

167.  Dr Singer also opined that the plaintiff’s pains had a slight basis on physical lesion and to a large extent was based on psychological causes.  This was because the pains she complained of were more serious than what her physical lesion could produce.  The psychological causes were her accident and the aftermath.  He did not think the plaintiff was malingering as she had the psychological stresses like those specified for PTSD.

168.  Dr Singer also commented on the failure of Dr Wong to note a medical report dated 28 February 2007 by Dr Tsang Lo Wah of UCH.  The report said that despite medications and, since 13 November 2006, psychotherapy by clinical psychologist and attending day hospital since 21 November 2006 for closer follow up and treatment by a multidisciplinary team, the plaintiff’s anxiety and depressive symptoms persisted.  She was given sick leave from 2 November 2006 onwards.  The plaintiff had also been reported to have significant depressive symptoms and faced a lot of stress when criticized in the workplace.

169.  In cross-examination, Dr Singer said his approach was to detect inconsistency.  He also said that he examined the plaintiff by listening to what she said, how she said it, what she did not say, observed her behaviour, emotion and level of activity.  He also assessed her cognitive functions.  He did not just swallow what the plaintiff told him.  But I note that his reports did not have much discussion of these approaches.  His second report merely said that the plaintiff’s thoughts were well organised, her speech was relevant and coherent, she was consistent in her account of herself, the pattern of symptoms fits the diagnoses and her copious weeping when talking of the symptoms was difficult to simulate.  There was not much discussion in Dr Singer’s report about consistency save in repeating the plaintiff’s account of symptoms.  There was no attempt to verify her account with collateral information from a neutral or independent source like her appraisal reports.

170.  On the plaintiff’s claim of pain being at 9 degrees with 10 degrees being most severe and practically intolerable, Dr Singer said that he would allow a 10% to 20% exaggeration as sick people like to exaggerate.  He said from the plaintiff’s other symptoms, her case was compatible with PTSD.

Dr Wong’s oral evidence

171.  Dr Wong emphasised the need in a forensic examination to record the findings of his examination, the verbal and non-verbal account in particular the body language and the interaction.  It was also important to refer to collateral information.  He also relied on the reports of the treating doctors and the appraisal reports.  He also observed the plaintiff in her oral evidence regarding his examination of her.  After the observation, he still adhered to his view that the plaintiff did not have PTSD.

172.  Regarding Dr Singer’s two reports, he did not find them useful.  The first reason was that Dr Singer only gave his findings without providing the explanation.  It was just like the report of an experiment which gave the result but not the methodology.  There is also no detailed record of the non-verbal observation.  Secondly, Dr Singer did not make corroboration with other significant information.  His reports ran the risk of being self-serving papers.  Thirdly, there was internal inconsistency in Dr Singer’s reports.  In his first report, the symptoms recorded would justify the diagnosis of PTSD and adjustment disorder of at least a moderate degree, but Dr Singer only gave each of them a mild degree.

173.  Dr Wong also disagreed with the plaintiff’s evidence that her long answers as recorded in the report were summaries.  Dr Wong refuted this by referring to the same mode of long answers given by her in oral evidence.  Dr Wong also referred to his contemporaneous notes for veracity of the questions and answers and the plaintiff’s body language.

174.  Dr Wong then referred to Dr Mak’s report and said that the collateral information for Dr Mak was insufficient as there was no reference to the reports by treating doctors or the appraisal reports.  Dr Mak also did not mention that he had verified the plaintiff’s information.

175.  Dr Wong was cross-examined extensively on the methodology for conducting psychiatric examination and the sources of information he used in the assessment of the plaintiff.  He referred to the 12 psychiatric complaints of the plaintiff as recorded in Dr Singer’s first report as well as Dr Singer’s assessment.  He contrasted them with the plaintiff’s good appraisal reports.  For tasks within the plaintiff’s physical ability, she performed them in an outstanding manner both quantitatively and qualitatively.  Her work was good and she worked extra hours for additional work.

176.  Dr Wong agreed that the plaintiff was suffering from a very mild degree of adjustment disorder up to the mid to late 2003.  He also said that adjustment disorder could not be classified in the class to which PTSD belonged.  If there was a diagnosis of a disorder in that class, there should not be a further diagnosis of adjustment disorder.

177.  The plaintiff’s good appraisal reports for four consecutive years also meant that she had a fully functional psychology in those years.  For PTSD patients, the psychological effect was to lock them up in their fearful past.  That was not the case for the plaintiff as she was looking forward all the time.  She worked hard for promotion.

178.  On the question of pain, Dr Wong said that if the plaintiff should have suffered psychogenic pain at 9 degrees for so many years, there would have been observable muscle wasting, contractual and deformity of joints.

179.  On the lack of grimace, Dr Wong said if the plaintiff was indeed having a pain at 9 degrees, she was just like a woman in labour or a person having surgery or a tooth plucked out all without anaesthesia but could still walk around chatting with and smiling to others.  The good appraisal reports were again one of the reasons for Dr Wong’s conclusion that she had no pain as claimed.

Dr Singer’s further oral evidence

180.  Counsel for the plaintiff referred to Dr Wong’s criticisms of Dr Singer’s reports that Dr Singer had not paid due regard to the plaintiff’s body language and that the symptoms as diagnosed justified more serious grading than those given.  Counsel said these criticisms should have been put to Dr Singer in cross-examination.  In order to address this complaint, Dr Singer was called again after the conclusion of Dr Wong’s evidence.

181.  Dr Singer said that one should assume that he, as a psychiatrist, should have come to his findings with reasons and had taken into account the non-verbal signs and had not asked leading questions.  These were basic things and he did not have to say them in the report.  One should not doubt that the proper procedure had not been carried out unless there was evidence of it.  It is not customary for scientific report to go into a long list of details as in Dr Wong’s approach.  He thought that such was redundant.  He also said that if the plaintiff should have smiled, spoken anything inconsistent or illogical or was overdramatic, he would have noted them down.  He would have mentioned them under the heading of behaviour. 

182.  He maintained his diagnosis of PTSD though the treating doctors did not do so.  He said the reports of the treating doctors had symptoms of PTSD though they did not make the diagnosis.  He said though one may not find all symptoms of PTSD, if the clinical judgment should be PTSD, then that should be the diagnosis.

183.  On the plaintiff’s appraisal reports, Dr Singer said that the plaintiff performed well in an environment without stresses.  He said the plaintiff would cope with her complaints and still put up a good report.  Her symptoms were consistent with her four years of good appraisal reports.  I however note that these are merely Dr Singer’s assertions without explanation.

The defendants’ submissions on the plaintiff’s psychiatric condition and pains

184.  The first joint orthopaedic report assessed that the plaintiff had:

“suffered injuries of the head, neck and right shoulder when the carcass of a pig with its suspending metal fell on her on 25.10.1999.  Contusion of the right forehead region has healed with no residual disability.  Contusion and sprain of the neck 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 associated weakness.” (Emphasis supplied)

185.  The report said that she had to remain in sedentary duties.  This appeared to be because of the pain she had in her neck, upper limbs and right shoulder.  The second joint orthopaedic report further said that she was suffering from:

(1)    Neck pain and numbness in her hands.

(2)    Right shoulder pain and weakness due to shoulder impingement syndrome.

(3)    Left thigh pain and cramps in the left leg.

However, the orthopaedic experts found no obvious deformity of her neck or back.  X-ray also disclosed no definite lesion.  MRI of her cervical spine and right brachial plexus detected no abnormality.  There was no evidence of cervical myelopathy.  There was also no external wound or tenderness on her head and neck.  There was no neurological deficit detected.  There was also no evidence of peripheral nerve lesion that could explain the radiation of pain.  The government doctors also could not identify any cause for her pains. 

186.  Counsel for the defendants also submitted that her disability could wax and wane through time.  Counsel referred to a medical report from the Kwun Tong Occupational Health Clinic dated 18 March 2003 which recorded a physical examination of the plaintiff on 24 November 1999.  The examination found that the range of movement of her neck was full.  Another medical report of the TKO General Outpatient Clinic printed on 24 October 2006 recorded an examination on 16 May 2006.  It found her neck and limbs movements unremarkable. 

187.  Furthermore, there was the report dated 7 July 2007 from Dr. Chan Siu Yuen of the Department of Family Medicine and Primary Health Care of UCH as quoted above.  It recorded the plaintiff’s claim of headache on 16, 20 and 31 October 2006 and her bursting into crying when talking about her injury on duty.  Dr Chan commented that her headache had a strong psychological element.  Counsel for the plaintiff remarked that Dr Chan was not of the psychiatric department of the hospital.  However, I am sure Dr Chan was well qualified to make this comment.  I agree that according to the facts in this report, the crying appeared more to do with the request for sick leave for rest than with depression or headache.

188.  Counsel for the defendants therefore submitted that based on Dr Wong’s conclusion, the plaintiff was exaggerating or even fabricating these symptoms.  Dr Wong’s conclusion was also supported by the medical examinations and medical reports referred to above.  Counsel further submitted that the three orthopaedic experts must have accepted the plaintiff’s subjective complaints as they did not refer to any objective evidence to support their findings.  I would also refer to Dr Singer’s comment that the plaintiff’s pains were more of a psychogenic nature as her physical lesion could not generate so much pain.  Dr Jack Wong in his supplementary report also opined that her symptoms were due to post-injury stress disorder.

189.  On the psychiatric aspect of pain, counsel for the defendants referred to Dr Singer’s opinion that psychogenic pain is just like real pain.  The plaintiff complained that her pains were at 9 degrees and painkillers could only provide partial relief.  The pains prevented her from driving and affected her use of the computer.  Counsel therefore submitted that, based on such complaint, the plaintiff could hardly do anything and had to be treated in a pain clinic by a pain specialist.  Counsel therefore submitted that the plaintiff’s complaint of pains should be rejected even as psychogenic pains.

190.  Counsel for the defendants also referred to the plaintiff’s initial psychiatric condition after the accident.  It was in March 2001 that she was referred by the Orthopaedic Department of UCH to the psychiatric department to treat her intractable pain in her right shoulder and neck.  The initial diagnosis of her psychiatric condition was adjustment disorder with mixed anxiety and depressive disorder.  The permanent psychiatric disability was assessed at 3%.  (I also remind myself of the report by Dr Tse To Yin of UCH and dated 10 February 2003 as quoted above.  The report showed that her psychiatric condition was not very serious then.  The psychiatric element that prevented her from performing the full duties of an HI was her avoidance behaviour towards port related places.  She needed no sick leave on psychiatric ground.)  There was also an optimistic assessment in a report by Dr Wong Sze Yu dated 10 February 2004. 

191.  However, her condition deteriorated drastically by mid-2006.  This was after the commencement of the trial.  She was further examined by Dr Singer on 30 March 2007.  She said she was distressed by a hostile workplace atmosphere.  She was also under immense pressure from the on-going litigation.

192.  The latest psychiatric report by a Dr Pang Pui Fai of UCH said that the examination of the plaintiff on 6 February 2008 revealed features suggestive of PTSD.  But Dr Pang did not make the diagnosis of PTSD. 

193.  Counsel then referred to the four psychiatric assessment reports by Dr Singer, Dr Mak and Dr Wong.  Counsel also referred to the oral evidence of the plaintiff on her examination by Mr Wong as well as the oral evidence of Dr Singer and Dr Wong.

194.  Counsel submitted that Dr Mak’s report ought not to be given weight.  The reasons are that the report was a guarded one.  It was not based on sufficient objective information and its reliability depended upon the truthfulness of the plaintiff’s complaints.

195.  Regarding the diagnosis of the plaintiff, counsel highlighted Dr Wong’s reasons for not diagnosing PTSD by relying on the initial diagnosis of the treating doctors of UCH.  Dr Wong took the view that the treating doctors were in a better position to make the diagnosis.  Counsel also reiterated that the plaintiff was first referred to the psychiatric department for treatment of the intractable pain, not for any PTSD symptoms.  Counsel also referred to the diagnostic criteria A for PTSD in DSM-IV.  It stipulates a pre-condition that the person has been exposed to a traumatic event in which:

(1) he/she experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(2)  the person’s response involved intense fear, helplessness or horror. 

196.  Counsel also referred me to the decision of Ho Man Fong v Sime Darby Motor Service Limited, unreported, HCPI 1096/2003.  Suffiad J said in that case that PTSD was a psychiatric disorder that arose only from some very severe trauma and the medical literature suggested that a pre-condition of PTSD was that the patient actually experienced some life threatening danger.  Counsel also referred me to Limbu Saram Kuma v Cheng Man Chung, unreported, HCPI 382/2003.  In that case, experts on both sides agreed that the plaintiff was a victim of PTSD.  But Deputy Judge Gill rejected the diagnosis by referring to criteria A for diagnosing PTSD in DSM-IV.  The criteria required an extreme traumatic stressor.  The learned Judge found that the plaintiff in that case had escaped with negligible injuries.

197.  Counsel submitted that despite the shock of the plaintiff when the carcass fell on her, it was just a slight trauma that caused superficial injuries to her right forehead, neck and right shoulder.  Her claimed distress was completely disproportionate to the actual trauma she suffered.  There was no pre-condition for a diagnosis of PTSD.

198.  Counsel also referred to Dr Wong’s finding that the plaintiff had recovered from any psychiatric disorder at the latest by the end of 2003.  Counsel relied on the factors pointed out by Dr Wong.  They were the lack of sick leave between 5 October 2002 and 21 June 2005 on psychiatric ground, her work appraisal reports, the reports by her psychiatric treating doctors, her lack of physical pathology according to her orthopaedic reports, her demeanour in court and during the examination by Dr Wong and her resentment to her employer.  Counsel submitted that Dr Wong’s approach was based on a sound methodology both in the examination and in the preparation of his report.  Dr Wong also relied on objective information from more than one source.

199.  Counsel also pointed out that the plaintiff had completed a Master Degree Course in 2004.  She also prepared a well-structured and well-argued 17-page paper in February 2007 appealing against her appraisal report for 29 June 2005 to 31 May 2006.  Counsel also reiterated the discrepancy between her complaints and the objective evidence including her non-verbal behaviour and body language.  On the factual disputes on what she had said and how she had behaved during the examination by Dr Wong, counsel submitted that I should accept Dr Wong’s evidence and reject her evidence.

200.  Counsel also referred to Dr Singer’s reports and submitted that Dr Singer’s opinions were inconsistent with the contents of the appraisal reports. 

201.  Counsel also referred to Dr Singer’s view on the reports by the psychiatric treating doctors of UCH.  Dr Singer asserted that he did not feel the need to acknowledge the contents of these reports as they did not have enough weight for him to deal with them seriously.  Dr Singer gave no reason for this assertion and I think it smacked of pomposity. 

202.  Dr Singer’s first report did mention the report by Dr Tse To Yin of UCH and dated 10 February 2003.  The diagnosis by the doctors of UCH was adjustment disorder with mixed anxiety and depressive reaction, but not PTSD.  Dr Singer’s second report also mentioned about a report dated 28 February 2007 by Dr Tsang Lo Wah of the same department.  None of these reports from UCH save the last one by Dr Pang Pui Fai dated 20 February 2008 mentioned PTSD.

203.  Unless there is a good reason to the contrary, the reports by the treating doctors are usually an important source of information for the purpose of assessment.

The plaintiff’s submissions on the plaintiff’s psychiatric condition and pains

204.  Counsel for the plaintiff referred to some orthopaedic medical reports and submitted that the plaintiff should be given sedentary light and indoor duties.  However, I cannot identify any cause for the pains from the joint reports of the orthopaedic experts.  The evidence of Dr Singer and Dr Wong has also made it clear that if the plaintiff were indeed suffering from the pains she complained of, the pains were cause by a psychogenic cause rather than physical lesion.

205.  Counsel for the plaintiff also referred to the supplemental joint orthopaedic report which said that certain specific posts of HIs were not suitable for the plaintiff.  Counsel therefore submitted that all parties must have considered that sufficient information as to the tasks of HIs had been provided to the orthopaedic experts for consideration of whether the plaintiff was physically capable of carrying them out.  I do not think this submission correct.  The experts were only given a bundle of duty lists of different HI designations.  A lot more evidence on duties of HIs have been given by witnesses at the trial.  There was also substantial discovery on the tasks and job descriptions of various posts of HIs and SHIs after the commencement of the trial.  In any case, the medical diagnosis of the plaintiff’s physical disability is for the court’s consideration.  Even if the diagnosis of disability should be accepted, the appropriate job postings that the plaintiff can assume is still a matter for the court.

206.  Counsel referred to Dr Singer’s first report and highlighted the comments that the plaintiff did not appear to exaggerate and would tell of her improvement.  Dr Singer therefore opined that the plaintiff was likely to be a reliable historian.

207.  Counsel also referred to the symptoms that the plaintiff had told Dr Singer and her fear that she might be treated as a psychiatric case.  Counsel noted that in Dr Singer’s second report, the diagnosis of PTSD had exacerbated from mild to moderate.

208.  Counsel then referred to Dr Mak’s report.  Dr Mak qualified his assessment by saying “if the information provided is true”.  Counsel submitted that since it was a function of forensic examination to assess reliability, it must be assumed that Dr Mak discerned nothing from the interviews and examination to show doubt.  I do not accept this submission.  If Dr Mak had indeed verified the information, he would not have made the qualification.  With this qualification, I find it unsafe to rely on Dr Mak’s report as it is prima facie based on unverified information.

209.  Counsel then referred at length to the oral examination of Dr Singer and Dr Wong.  Dr Singer said at length of how he had conducted the examination of the plaintiff, how he had posed questions, what observation he had made of the plaintiff and his attention to the existence of inconsistency.  However his two reports appeared to have been based on all that the plaintiff had told him.  He said the plaintiff’s thoughts were well organized and her speech coherent.  She did not appear to exaggerate and would tell of improvement.  On these general comments, he found the plaintiff truthful.

210.  Counsel made scathing attacks on Dr Wong’s evidence and his report.  Counsel said that Dr Wong did not apply his methodology, but was patently guilty of bias.  Counsel disagreed with Dr Wong on his observation of the plaintiff’s demeanour in court.  Counsel also argued that Dr Wong was not right in limiting the meaning of depression to a psychiatric disorder when it covered unhappiness as Dr Singer had so expressed.  I think this is only a matter of use of works. 

211.  Counsel disagreed that the plaintiff had over-dramatized during her examination by Dr Wong.  Counsel criticised Dr Wong for deliberately failed to enquire into the plaintiff’s symptoms which would have elicited PTSD and refuted malingering.  Counsel also referred to the cross-examination of Dr Wong on the relationship between PTSD and pain to explain the plaintiff’s pains.

212.  Counsel criticised Dr Wong for having decided the diagnosis before interviewing the plaintiff’s sister and not relying on the sister’s information which was collateral information showing PTSD symptoms and that the plaintiff was not over-dramatizing.  Counsel thus submitted that Dr Wong harboured blatant bias towards the plaintiff.

213.  Counsel submitted that if the plaintiff were exaggerating, she would not have smiled or moved her head freely during her examination by Dr Wong.  Instead, she would have continued to cry relentlessly irrespective of any attempt by Dr Wong to stop her.  Counsel therefore said that Dr Wong exhibited confirmatory bias when he knowingly or unknowingly reviewed the information obtained in a way to confirm his original hypothesis.  Counsel submitted that that was the reason why Dr Wong interpreted the plaintiff’s crying spells and her claims of pain as he did.  Counsel also submitted that Dr Wong exhibited confirmatory seeking bias as he had conducted an unbalanced search for information to confirm his hypothesis but neglected the opposing facts. 

214.  Counsel also said Dr Wong was evasive when he did not agree with the proposition that the plaintiff had her occupational functioning in slaughterhouses impaired because she had fear of pigs and things associated with pigs.  Dr Wong’s answer was that the plaintiff may or may not be so impaired but her fear of pigs was a factor for consideration.

215.  All parties accept that the plaintiff is a perfectionist.  Dr Wong said that with such a personality trait, the plaintiff could work in a slaughterhouse if she should determine to do so.  Counsel said that such opinion showed Dr Wong’s bias in the extreme.

216.  Counsel also referred to Dr Wong’s report which stated that the plaintiff had moved her head when describing the operation of the carcass conveyor.  Counsel said Dr Wong was misleading the court in so saying as the plaintiff had her neck collar on which restricted her neck movement.

217.  Counsel also criticised Dr Wong for relying on the plaintiff’s head and neck movement to suggest that she had nothing wrong physically when the orthopaedic experts did not say that she could not move her head at all.

218.  Counsel also argued that the plaintiff’s ability to work does not mean that she was not suffering from PTSD as the nature of her work had changed completely.  Counsel highlighted the psychiatric report dated 15 April 2008 (originally dated 20 February 2008) by Dr Pang Pui Fai which said that the plaintiff was displaying features suggestive of PTSD in connection with her accident on 25 October 1999.  Counsel also said that Dr Wong was trying to diminish the significance of Dr Pang’s report when he said Dr Pang did not make PTSD the diagnosis, but just said that the features were “suggestive” of PTSD.

219.  Counsel also submitted that the medical reports of Dr Tse dated 10 February and 10 July 2003 and the medical report by Dr Wong Sze Yu dated 10 February 2004 referred to some symptoms of PTSD. 

How did the plaintiff behave when examined by Dr. Wong?

220.  I deal with the plaintiff’s psychiatric condition first.  Dr Singer and Dr Wong had different descriptions of the plaintiff’s behaviour during their examinations.  I think this may well be the result of different methods of examination adopted by different experts.  Counsel for the plaintiff submitted that Dr Wong was guilty of confirmatory bias and/or confirmatory seeking bias.  But I do not find any basis for such attacks. 

221.  I think Dr Wong’s report is comprehensive on the facts.  I see no reason why Dr Wong should have chosen to make an inaccurate report of what he saw and heard.  Most of the dialogue and the plaintiff’s body language were also recorded in Dr Wong’s contemporaneous notes.  I do not see how Dr Wong could have concocted some contemporaneous notes whilst conducting the examination. 

222.  I do not think the plaintiff’s collar for supporting her neck would have prevented her from turning her neck when demonstrating how the carcass conveyor worked. 

223.  I agree with Dr Wong that the plaintiff could provide a long answer to a simple question.  She did so when giving evidence at the trial. 

224.  Her evidence was also not short of crying spells.  She had declined at least one offer for a short break for her to calm down and compose herself (see transcript page 127 A to L).  She was able to control herself.  The facts in the report by Dr Chan Siu Yuen dated 21 March 2007 also shows that she was able to control her emotions.

225.  She was vehement when talking about the 1st defendant’s refusal to admit liability and tender her an apology.  She was angry when talking about her superiors in particular the one who supervised her at the slaughterhouse.  She charged this superior officer of having suggested that she should not take the sick leave after the accident.  She also charged the superior for having insisted that she should present the sick leave certificate personally at the slaughterhouse instead of sending it in by other means.  (She in fact sent them in by registered post.)  She also blamed the senior officer at the GM Section for having told her that injured officers were injured soldiers and burdens of the department.  But she managed to calm down and continue with her evidence. 

226.  Her behaviour in the examination by Dr Wong as described in the report was similar to her behaviour when giving evidence.  I accept Dr Wong’s evidence.  I do not accept her evidence to the extent that it is different from that of Dr Wong.

Findings on the plaintiff’s psychiatric condition

227.  In making the diagnosis of PTSD, Dr Singer did not rely on the reports by the psychiatric treating doctors to any substantial extent and he did not give any explanation for so doing.  I have already remarked that such attitude smacked of pomposity. 

228.  Dr Singer’s first report referred to the plaintiff’s anxiety that she might be treated as a psychiatric case.  She also disclosed her improvement.  However, that report was made before the commencement of the trial in December 2005.  When the plaintiff was examined by Dr Singer on 30 March 2007 for the second report, the anxiety seemed to have disappeared. 

229.  Dr Singer also said that I should assume that he had asked the right questions, did all the right things and did not do anything wrong.  He opined that it was not customary for a scientific report to go into details as Dr Wong did.  However, Dr Wong has rightly pointed out that Dr Singer did not give any explanation for his findings.  His reports were like reports of experiments that gave only the result but not the methodology.  I agree that without the methodology, a scientific report has little value as no one can tell whether the methodology was correct and hence the result reliable. 

230.  Dr Singer said in his oral evidence that his reading of the plaintiff’s appraisal reports did not cause him to change his opinions, but he again gave no reason why.  Without any reason or explanation, one finds it difficult to understand how the plaintiff could have performed so well if she were indeed suffering from PTSD.  At the end, Dr Singer did say that the plaintiff performed well in her job as she was in an environment without stresses.  He also said that the plaintiff could cope with her psychiatric problems and still put up a good report.  Her symptoms were consistent with her four years of good appraisal reports. 

231.  However, these were all assertions.  Dr Singer again did not give any reason to back them up.  The presence of stressors could aggravate the symptoms of her illness, it does not mean that she would not have been affected by the symptoms in the absence of the stressors.  If she could provide a good to excellent performance and did not appear to be affected by the symptoms, that may simply mean that she had no psychiatric disorder.  Since Dr Singer did not give any reason or explanation to back up his assertions, I therefore reject them.

232.  I now deal with the criticisms of the plaintiff’s counsel on Dr Wong.  Whether the plaintiff had over-dramatised during her examination by Dr Wong was a matter of fact.  I have already given my reasons for accepting Dr Wong’s observation.  I also agree with Dr Wong that in diagnosing whether the plaintiff had PTSD, it was not right for him to just go through the symptoms in the literature in a mechanical way.  Such an approach would only elicit whatever that the plaintiff would want to tell so as to fit her case into PTSD.

233.  Dr Wong did not rely on the collateral information from the plaintiff’s sister.  Dr Wong explained that before interviewing the sister, he already had sufficient information for his diagnosis.  By that time, Dr Wong had read the appraisal reports, the medical reports by the treating doctors and had interviewed the plaintiff for over five hours.  Furthermore, the sister was not an entirely independent party.  Her information was more on the plaintiff’s conscious behaviour which could confirm what the plaintiff had told Dr Wong.  In the circumstances, I find nothing wrong for Dr Wong to have decided not to pay regard to the sister’s information even before interviewing her.  Dr Wong already had a very large amount of direct and collateral information for the diagnosis.

234.  Regarding the argument that if the plaintiff was exaggerating before Dr Wong, she would have behaved in line with the symptoms of PTSD and would not have behaved in a way to betray her sham.  That, however, depended on whether she was aware that her conduct was betraying her sham.

235.  Counsel said that Dr Wong was evasive when he did not agree that the plaintiff was occupationally impaired for work in slaughterhouses.  Dr Wong accepted that the plaintiff’s avoidance behaviour was a factor for consideration on whether she was so impaired.  I do not think Dr Wong was evasive as it was his view that the plaintiff, as a perfectionist, could overcome her fear of pigs if she should decide to do so.

236.  Regarding the report by Dr Pang Pui Fai dated 20 February 2008, it was the first time that a doctor of UCH made the observation that the plaintiff’s features were “suggestive” of PTSD whilst the plaintiff had been under the care of the psychiatric clinic of UCH since March 2001.  Dr Pang also did not make the diagnosis of PTSD despite his observation.  I therefore do not think that Dr Wong had deliberately diminished the importance of Dr Pang’s report.

237.  Regarding the plaintiff’s ability to work, I have already observed that if she was suffering from PTSD, her performance at work would still be affected by it though without aggravation as might be caused by the presence of stressors.  However, a number of her senior officers had observed that her performance from 1 June 2001 to 31 May 2006 was of a good and at times an excellent standard.  I do not think such performance was compatible with the suffering of PTSD.  It may be compatible with a mild degree of adjustment disorder.  When she was in her job, she tried hard to provide a good performance.  She was forward looking.  She had promotion in mind.

238.  Counsel for the plaintiff submitted that the reports of Dr Tse dated 10 February and 10 July 2003 and the report of Dr Wong Sze Yu dated 10 February 2004 referred to some symptoms of PTSD.  However, the presence of some symptoms like avoidance behaviour and/or recurrent distressing dreams of the event, which can be found in PTSD patients, do not necessarily mean that the person suffering them is suffering from PTSD.  This psychiatric illness is diagnosed by a set of diagnostic criteria and not by some symptoms only.  The doctors in the psychiatric unit of UCH also did not diagnose PTSD despite the presence of such symptoms.  I also disagree with Dr Singer that he could diagnose PTSD even without the necessary symptoms.  I do not think the diagnosis of a serious mental illness is a matter of discretion for the doctors.

239.  Counsel for the defendants also submitted that the plaintiff had only suffered a slight trauma in the accident which was not serious enough to be a pre-condition for the development of PTSD.  I accept that this is a strong argument.  However, I would not rule out PTSD if this were the only ground.  I note that both Dr Singer and Dr Mak did not think that the trauma was not serious enough for PTSD to develop.  I also note that Dr Wong did not rely on this ground to rule out PTSD. 

240.  In ruling out PTSD, I also rely on the following reasons; namely: she had not been given any sick leave on psychiatric ground from the date of her accident (see report of Dr Tse dated 10 February 2003 as quoted above) to 21 June 2005; her appraisal reports for the period from 1 June 2001 to 31 May 2006 showed that her performance was good and at times excellent; the reports by psychiatric treating doctors did not mention PTSD until the report by Dr Pang made in February 2008; and the reports by psychiatric treating doctors did not describe a serious psychiatric condition at least up to and including the report by Dr Wong Sze Yu dated 10 February 2004.  The plaintiff was also able to obtain a Master Degree in Training and Performance Management in 2004 by part-time study.  She was then working full-time and performing well in her job.  Her appeal paper submitted in February 2007 also required a lot of skill.  These accomplishments by her give further support to my conclusion.

241.  Diagnostic criterion “F” for PTSD in DSM-IV stipulated significant distress or impairment in social, occupational, or other important areas of functioning.  Dr Wong said that the plaintiff did not satisfy this criterion.  I agree with him.  From the appraisal reports, it can at least be said that the plaintiff did not appear to have suffered from any or any significant occupational impairment between 1 June 2001 and 31 May 2006.  These reports and the unchallenged witness statements of Mr Chan Chak Keung HI I, Mr Wong Tak Fat SHI and Madam Yeung Yuk Yip SHI also show that after her resumption of duty on 20 December 2000, she did not have difficulty in getting along with her colleagues and the public and was not socially withdrawn.  She therefore did not have any or any significant social impairment.

242.  For the above reasons, I accept the opinions of Dr Wong and reject those of Dr Singer.  I agree with Dr Wong and counsel for the defendants that the plaintiff had not suffered from PTSD as a result of her injury at work.

243.  I also agree with Dr Wong that the plaintiff had suffered from adjustment order with mixed anxiety and depressed mood.  This compromised her working capacity to a mild degree.  This psychiatric condition was overshadowed by her orthopaedic condition for which sick leave was granted from the date of the accident on 25 October 1999 to 19 December 2000.

244.  From the reports of the treating doctors, her psychiatric condition improved gradually.  I agree with Dr Wong that she had more or less recovered in the middle of 2003 or at the latest by the end of 2003.  From December 2000 to December 2003, her psychiatric impairment was compatible with most of her useful functioning.  She had no more psychiatric impairment from the beginning of 2004 onwards.  If she is now suffering from any psychiatric illness, that has nothing to do with her accident in 1999.

245.  I also agree with Dr Wong that she took on the abnormal sick role from about September 2005 onwards.  She is able to control her emotions.  Dr Wong identified the probable reasons as her unhappiness with her appraisal for the period of 29 June 2005 to 31 May 2006 and hence her worry about her promotion prospect.  She was therefore very angry with her seniors.  The on-going litigation was also a contributing factor.  These were the obvious factors to explain her behaviour.  In the premises, her sick leave from 2 November 2006 onwards was unnecessary as it was not for any psychiatric illness.  I do not discuss the issue of malingering as it is unnecessary.  There is no such finding by any doctor.

Findings on the plaintiff’s pains and limitations of movement

246.  The accident did not cause very serious injury to the plaintiff.  She did not fall to the ground after being hit by the falling carcass, gambrel and pulley.  After diagnosis and treatment, she was discharged on the same day from Yan Chai Hospital.

247.  When Dr. Cheng Hang Cheong of UCH recommended light duties for her, her condition was not very serious.  Dr. Chengs’ report dated 19 December 2000 said:

“Ms Lam … was seen on 19 Dec 2000.  She still complained of neck and right shoulder pain.  According to the work assessment by occupational therapist, her work capacity can only marginally match the job demand (checking the environment of restaurant frequently and follow food complaint and poison) with certain degree of limitation.  So she is recommended to have light duties for six months.”  (emphasis supplied)

248.  The three orthopaedic experts jointly opined that she had neck pain, numbness in her hands, right shoulder pain, numbness due to shoulder impingement syndrome, left thigh pain and cramps in the left leg.  They did not identify any orthopaedic cause for these problems.  Dr Singer said these pains were more of psychogenic than orthopaedic in nature as he found that the pains complained of were more serious than the plaintiff’s physical lesion could produce.  The orthopaedic experts further agreed in their supplementary joint report that she would have difficulty in:

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

2.    Reaching high places above head level that involve climbing and extending her neck.

3. Reaching to very low places requiring a crouching position.

4. Using fine tools such as in the dissection and 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.”  (emphasis supplied)

249.  These difficulties must be caused by her pains and limitations of limbs.  They should therefore be considered and understood in connection with the pains and limitations as claimed. 

250.  Her first difficulty is in lifting heavy objects such as carcasses or heavy specimens, not that she cannot lift anything of say more than 2 kilos.  There is also no evidence or reason why she cannot carry a brief case to do prosecution in the magistracies or to go to give lectures to the public on food safety like her colleagues.  A brief case with wheels at the bottom can certainly make such tasks easier for her and her colleagues.  She has said that she could not carry anything beyond 2 or 3 kilos, but she is not supported by the experts or any objective evidence and I would not find that she is so disabled.

251.  The second difficulty is in reaching high places by climbing and extending her neck.  It does not mean that she cannot climb up a ladder or stand on a chair.  It is the climbing and the extension of her neck simultaneously that she may have difficulty in doing.  The cause may be the neck pain as claimed.  A report by an occupational therapist about an assessment on 25January 2002 showed that in a work simulated climbing assessment of a one metre high ladder, she demonstrated acceptable bilateral upper and lower limbs co-ordination and nil sign of loss of balance was noted.

252.  The third difficulty is in reaching very low places that requires a crouching position.  It does mean that she cannot bend her waist to look down.  It is only to reach very low place that requires crouching that she finds it difficult.  The crouching posture may be the cause of the problem. 

253.  The fourth difficulty is on the use of fine tools.  It may be because of the neck pain, numbness in her hands, right shoulder pain and numbness due to shoulder impingement syndrome as claimed.

254.  I think the fifth difficulty of prolonged neck flexion at desk duties has been rebutted by the appraisal reports.

255.  The sixth difficulty is prolonged travelling in vehicles especially on bumpy roads.  In her own words, she has no difficulty in travelling in government vehicles within a district which takes about five to ten minutes.  She reserved her position for situations where the traffic is congested and the vehicles brakes and jerks all the time.  But I do not think congested traffic will necessarily result in constant jerks.  It is only a matter of the manner of driving.  If need be, the plaintiff can always request the government driver to drive in a more civilized manner.

256.  There has also been a suggestion that she cannot stand frequent travelling.  Two of the experts did say that frequent travelling was not suitable for her, but they gave no reason why and I would not place weight on this unsupported assertion.  I would however observe that most people find the frequent embarking on and disembarking from vehicles tiring. 

257.  I also note Dr Wong’s doubt of whether the plaintiff indeed had the pains and limitation of movements of her limbs as claimed.  He did so on good grounds.  If the plaintiff did not have these pains and limitations, she would also not have the difficulties opined by the orthopaedic experts.  Whilst I would place weight on Dr Wong’s observation, I am not prepared to go against the opinions of the orthopaedic experts altogether as Dr Wong also did not do so.  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.

258.  However, I would also refer to Dr Wong’s observation of her body language and movements during the examination.  I note the submission by counsel for the defendants that her pain could wax and wane and the reports to which counsel referred.  I note the report by Dr Chan Siu Yuen dated 21 March 2007 that sick leave was granted for her headache but not for neck pain and that her headache appeared to have a psychological element.  I agree with Dr Wong that the magnitude of her pains cannot be as great as she claimed (at 9 degrees).  She has suffered no muscle wasting or deformity of joints.  She has suffered no deformity or lesion in her body or limbs or any physical pathology to explain the pains.  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.

259.  After all, her difficulties as found by the experts and analysed above do not really handicap her from ordinary body motions and physical functions.  She can sit, stand and walk.  She has a normal gait.  She said in evidence that she could walk up and down slopes.  The report by the occupational therapist about the assessment of 25January 2002 said that her walking tolerance in work assessment was more than 60 minutes.  In the assessment of functional walking tolerance, she demonstrated the ability to walk more than 2.6 hours per day.  She also walked unaided and with normal gait pattern. 

260.  I also find that her neck problem is a minimal one as it did not hinder her long hours of deskwork and computer work which she performed to win the praises in the appraisal reports.  She could also extend her neck during the examination by Dr Wong.

261.  I also do not think that she would have to be confined to sedentary jobs because of these mild problems.  She was also not always on sedentary jobs from 1 June 2001 to 31 May 2006, but she still performed well.  I find that she can undertake outdoor duties.  She may have difficulty in lifting objects as heavy as a pig carcass, but most people would find a pig carcass too heavy to lift.  She may have difficulty in carrying out an inspection by climbing on a ladder or other support and extending her neck or by crouching down.  If need be, she can consider seeking help from others or using less strenuous means to accomplish the end.  She may have difficulty in using fine tools in the dissection and examination of meat specimens. 

262.  I have already found that she has no difficulty in prolong desk duties requiring neck flexion.  If she is going out by herself to do inspection or other kinds of work, the length of travel is in her control.  If she is tire or uncomfortable, she can always ask the driver to stop somewhere for a rest before continuing with a long journey.  Even if she should be going out in a group, if the journey should be long and on a bumpy road, I am sure her colleagues would accommodate or even welcome her request for a rest of say 10 minutes in the course of it.  Furthermore, with all the highways in this territory, a thirty-minute drive can very often cover a long distance.  In addition, the plaintiff can also consider other modes of transport like the MTR which serves extensive areas of the New Territories.  At times of traffic congestion, a journey by the MTR plus a further short journey by taxi may be reliable and punctual.

Findings on the plaintiff’s prolapsed disc

263.  Regarding the degeneration of her C6-7 disc with postero-lateral protrusion resulting in narrower spinal canal, I agree with Dr Jack Wong that this prolapsed disc was not caused by the accident as it was only shown on 18 May 2002 which was more than 2½ years from the accident.  If it were indeed caused by the accident, it should have appeared in the earlier MRI film.  Furthermore, the MRI of 18 May 2002 showed a left postero-lateral disk protrusion at C6-7 whilst the plaintiff’s symptoms were worse on the right side.

Loss of Chance of Promotion

264.  The plaintiff claimed damages for loss of earnings and benefits caused by the loss of the chance of promotion from HI to SHI.

265.  She joined the FEHD on 8 July 1996 as an HI II.  In due course she passed the examination necessary for promotion to HI I.  In the normal course, she would have been promoted to HI I in August 2000.  Her colleagues in the same batch were advised of their promotion to HI I in March 2001.   She was not promoted then.  She put her case before the Civil Service Branch.  In August 2001, she was advised of her promotion to HI I with retrospective effect from August 2000.  That was the same date of promotion for her colleagues in the same batch.

266.  According to the hearsay evidence of Mr Tsui, who heard it from his colleagues in the GM Section, the original intention of the Department was for the plaintiff to complete a period of work equivalent to her sick leave from 25 October 1999 to August 2000 before promoting her to HI I and the promotion would also be with retrospective effect from August 2000.  This delay in her promotion to HI I is the subject of a claim for interest for the delayed payment of the increase in salary.  I will due with it in due course.

267.  The plaintiff pleaded in her Re-Amended Statement of Damages that she was an outstanding HI.  She said her chance of future promotion, however, has been and will be adversely affected by her disability.  Her disability has rendered her unable to perform or to be in considerable difficulty in performing the full range of normal duties or the full duties of an HI in different postings.  Accordingly, she has lost the opportunities and has been and will be handicapped in getting opportunities to broaden her experience, training and exposure that may be prescribed or required for promotion to SHI.  She further pleaded that she is not even able to cope with her pre-accident duties.  The reasons given are that “[s]he has fear of carcasses, overhanging objects, slaughter-houses and related matters and avoids them.  She is depressed and anxious.  She lacks endurance, drive and stress tolerance.  She lacks interest in activities, confidence in her abilities.  She avoids socializing.  She has difficulty in getting along with colleagues.”

268.  She also pleaded that she has orthopaedic disabilities in her neck movements and her sitting tolerance was only 5 to 10 minutes.  She has not been able to attend the full duties that she was capable of before the injury.  She further pleaded that her psychiatric impairment will affect her work as an HI and her chance of promotion to SHI. 

269.  She referred to the requirement of Regulation 109(1)(a) of the Civil Service Regulations (“CSR”) and pleaded that she will never or very unlikely be able to satisfy the relevant experience criteria for promotion.  This is so despite her outstanding performance in her previous postings and her future experience in the limited available postings in the rank of HI I.  Therefore, in any event, she will not be chosen for promotion among competing candidates.  She also claims loss of pension for losing the chance of promotion.

270.  Her counsel submitted that the approach for assessing this item of loss is not based on a balance of probability of her being promoted, but based on whether there was a substantial chance that she would be promoted but for the accident.  Once the court is satisfied that there was a substantial chance before the accident, the next step is to quantify the extent of loss of the chance which would lie between something that is just real or substantial on the one hand and near certainty on the other.

271.  Counsel further submitted that the plaintiff’s lost of chance of promotion was 100%.  In other words, counsel submitted that before the accident it was certain that she would be promoted to SHI.  But with her present disabilities as caused by the accident, she will never be promoted.  On this submission, the amount of claim would be the same as that calculated according to the balance of probability approach.

272.  Counsel relies on the cases of AG v Chun Yat Nam [1995] 1 HKC 218 and LEE Kim Fung v Lok Lun Keung & Anor, HCPI 1063/2000.  In Chun Yat Nam, the head-note summarized the injury and disability as follows:

“In 1987 the plaintiff, who was attached to a highly trained elite unit of the police force, was seriously injured in a training exercise by a plastic bullet … The plaintiff was in a comatose condition for 12 days and had later to be sustained by mechanical ventilation. …  The plaintiff suffered anoxic brain damage as a result of his injury.  He made very good recovery physically from near death.  After leaving hospital the plaintiff went back to the elite unit and was assigned to clerical work, which he found difficult because he had a tremor in his hands.  The plaintiff was told by his superiors that he could not expect promotion to sergeant until he was able to carry out full duties.  At his own request, the plaintiff was transferred to Junior Police Call and then the Frontier Police Community Relations Office.  However, the plaintiff did not enjoy his new posts and he left the police after a medical board found that he was unable to carry out the principal duties of a police officer.  The plaintiff’s visual ability also deteriorated.  He became extremely depressed and was unable to take part in physical activities which he enjoyed prior to the accident.  The plaintiff was effectively unemployable.”

Penlington JA said in the judgment:

“It is the case for the Crown on its appeal that the plaintiff's decision to leave the Police Force on the basis of the medical board's finding that he was unable to carry out the principal duties of a police officer was unreasonable.  The argument runs thus: The Force employs a substantial number of disabled officers and would have continued to employ the plaintiff albeit in carrying out duties which he did not enjoy but which he was capable of doing.  That being so, the plaintiff had failed to mitigate his loss and his decision to retire from the Police Force was a novus actus interveniens and his future loss of earnings was due not to the accident but to his own decision to retire. …

I am satisfied that the conclusion reached by the Master that the only prospect for employment that the plaintiff now has is working in some sort of sheltered employment for nominal remuneration is right. …

… The (medical) Board's findings were that the plaintiff was not fit to carry firearms and not able to carry out full constabulary duties.  The plaintiff accepted that finding and elected to retire from the RHKPF on a disability pension.  The Master was satisfied that at that stage the plaintiff was angry, frustrated, depressed and unhappy with life in the Force.  “He faced many years before retiring age in menial jobs which would hold no satisfaction for him with a constant reminder around him of what he had been before the accident.”

Mr. Davies points to undisputed evidence that the RHKPF does employ a large number of policemen who have become disabled.  He also submits that the Master was not entitled to come to the view that due to his unsatisfactory performance of clerical duties the plaintiff might have been retired before he reached normal retirement age.  He says there is no evidence of that.  I would not agree.  Even though no doubt the senior members of the RHKPF responsible for such decisions would look on the plaintiff's position with sympathy, they would have to consider the effect on his colleagues, who were apparently not so sympathetic.  I think the Master was correct to hold that the plaintiff may well have become such a square peg that he would have been retired prematurely.

…

… I think the evidence here is clear that this was making the plaintiff very depressed and was seriously affecting his mental state. …

The Master rejected totally the argument that the plaintiff's retirement consequent on the medical board's finding that he was unfit to carry out the principal duties of a police officer was a novus actus …  I agree with the Master for the reasons I have already given.  I consider that, on the evidence it was not only reasonable for the plaintiff to leave the RHKPF it was important for his mental health that he did so.  There was a finding by the Master, entirely supported by the evidence, that the plaintiff's earning capacity is now nil.  On that basis, he is entitled to damages reflecting his future loss of earnings.

Counsel for the plaintiff submitted that there are a considerable number of similarities between the plaintiff’s case and Chun.  I think the differences are more marked.

273.  In the other case, Mr Lee Kim Fung, a police constable, was injured in a traffic accident on 16 May 1999.  He drove a motorcycle and collided with a taxi.  As a result, he was hospitalized for 2½ months.  Physical examination showed a deformed left arm, a tender left chest with air in soft tissue, tender abdomen, tender swollen right thigh and abrasions over both legs.  X-ray examination showed fractured left 9th and 10th ribs, fractured acetabulum bone and fractured left humerus.  These problems were complicated by bulbomenbranous urethral strictures.  He received four surgical operations whilst hospitalised.

274.  After discharge from hospital on 31 July 1999, he was again hospitalised from 7 September 1999 to 4 October 1999 for anastomotic repair of the urethral stricture.

275.  Loosening of a screw and screw protrusion which led to femoral resorption necessitated further hospitalisation from 12 January 2000 to 21 January 2000.  

276.  He later received physiotherapy and had gradual improvement.  He needed a stick to walk on level ground and had difficulty in climbing up or downstairs.  There was some pain in the left arm upon full extension.  For prognosis, residual pain and stiffness was expected for his left elbow and right hip.  Progressive osteoarthritis was expected.  There would also be increase in pain and stiffness requiring operation for total hip replacement.  He had sick leave till 28 April 2000 which was almost a year. 

277.  He was again hospitalized from 31 October 2001 to 16 November 2001 for total replacement of hip joint.  He then had further sick leave till 30 September 2002 or about 11 months.  The major areas of injuries were orthopaedic and urological.

278.  He could not accept what happened to him.  He also had to receive treatment from the psychological clinic of the Police Force.  His left arm had no strength and was painful upon extension.  It could not be raised above shoulder level.  He could not carry heavy objects.  There were frequent pains at his right pelvis and right knee particularly when walking.  He could not raise the right hip joint to more than 90^o or it would be dislocated.  He had wastage of muscle at inner right thigh that could not regenerate.  There was frequent pain on walking.  One nerve was cut at outer thigh of right leg resulting in numbness.  He also had pain on the hip.  Left knee also had pain due to pressure on left foot.  He lacked strength in urination with some pain on the urethra.  His sexual relationship with his girl friend was adversely affected.  He also suffered from loss of sleep due to pain in leg.  His body was weak.  He also had frequent dizziness and fatigue.  He suffered loss of confidence, felt sad, depressed and worried about future living and health.  He needed a walking stick in walking but cannot go up or down a steep staircase.  He had to be seated in taking transportation.  He could not squat or tie his shoelace.  He needed an instrument to put on his socks.  He could not cut his toenail.  He only sit on backward leaning chairs or lying in bed for rest.

279.  Nguyen J found that he had 21% total impairment because of the orthopaedic injuries and 22% total impairment because of urological injuries.  That meant a 43% total impairment of the person.  On the loss of future earnings, Nguyen J said:

“37.   I cannot agree with the defendants’ Counsel that because there should not be any policy in the Police of discriminating against health impaired officers, the plaintiff’s chances of promotion are in any way affected by his injuries.  It is an incontrovertible fact that the plaintiff can only perform light duties; he cannot wear a uniform; he cannot perform outdoor or patrol work; he cannot handle suspects; he cannot carry firearms; he cannot even work in a Report Room.  It would be unrealistic in the circumstances to assert that his promotion prospects have not been disadvantaged and he still has the same chances as his otherwise unaffected colleagues to be promoted.”

280.  The conditions of Lee Kim Fung are very different from those of the plaintiff.  Each case however has to depend on its own facts.  In the plaintiff’s case, it is necessary to first consider whether the extent of job exposure is a criterion for promotion from HI I to SHI.  It is then necessary to consider whether the plaintiff had a real and substantial chance for promotion to SHI before the accident and whether that chance has been adversely affected by the accident and, if so, the extent of which.

Exposure to different posts and promotion

281.  CSR 109(1)(a) provides:

“(1) Promotion

…

(a) Selection of officers for promotion over a promotion bar (defined in CSR 100(20)) is decided on the criteria of character and ability, any qualifications prescribed for the promotion rank, and experience.  Seniority should not be given weight unless no candidate stands out as the most suitable officer for promotion.  All eligible officers, irrespective of their terms of appointment, are considered on equal terms. …”

282.  “Promotion Bar” is defined in CSR 100(20) as:

“The point of segregation of ranks of a grade where each rank has a specific establishment.  Specific approval has to be given by the appointment authority for an officer to be promoted between ranks, subject to any prevailing arrangements, criteria, conditions and requirements as may be specified by the Government (including, inter alia, character, ability and any qualifications and/or experience prescribed for the upper rank), and to the availability of a vacancy in the upper rank. …”

283.  The Civil Service Bureau (“CSB”) has also issued “A Guide for Officers Nominated to Serve as Chairman or Member of a Promotion Board” (“The promotion guide”).  The following paragraphs have been referred to by counsel for both sides.

“SELECTION

…

15.  The following points should also be noted in assessing individual officers’ suitability for promotion -

…

(c) the lack of appropriate or varied experience alone should not be considered as a valid reason for not recommending an officer for promotion, if he is suitable in all other respects.  Career posting is a management responsibility, and officers who have not had the opportunity to acquire sufficient experience in various fields of work should not be penalised on this account, unless it can be demonstrated that he has been given the opportunity of gaining the necessary experience;

…

DATE OF SUBSTANTIVE PROMOTION

19,   The effective date of promotion of an officer over a promotion bar is normally –

(a) the date on which a vacancy in the upper rank becomes available; or

(b) the date on which he takes up the duties of higher office; or

(c)     the date on which he is considered capable of performing the full duties of the higher officer,

whichever is the latest, …”

284.  The defendants called Mr Tsui to give evidence on the conduct of an exercise for promoting HI Is to SHIs.  Mr Tsui worked in the GM Section of FEHD from 1 January 2000 to 31 January 2004.  This section handled the postings of the staff of the department including the Health Inspectorate.  Mr Tsui had also been a member of a promotion board after he was transferred out of the GM Section.

285.  Counsel for the defendants summarized this part of Mr Tsui’s evidence as follows:

“a. Candidates are first short-listed based on their years of experience (the ‘First Stage”).

b.    A formal board meeting (the promotion board) would then be held to consider the appraisal reports (over the past 5 years) of the short-listed candidates (the “Second Stage”).

c.    Officers selected for promotion would then have their files referred to the discipline section and the ICAC for final clearance (the “Third Stage”).

d.    Throughout the entire selection/elimination process, there are altogether 3 different teams of personnel involved in the 3 respective stages.

e.    The promotion board is only concerned with looking at the candidates’ appraisal reports for the past 5 years and is not concerned with the candidates’ past job postings.

f. The candidates’ overall performance is considered for promotion, not their job postings.

g.    It is not the Government’s practice to promote an officer just because he/she has been in different posts; likewise, they do not discriminate against those who are engaged in light duty only.

h.    The type and range of work carried out by the candidate (i.e. job postings) are completely irrelevant and a wider exposure is not an advantage for promotion.

i. The promotion board will only consider the appraisal reports, the candidate’s performance and his/her potential for promotion.  Experience (referring solely to a candidate’s years of service) is not a selection criterion as far as the promotion board is concerned.

j. Normally, it would take an HI I around 10-12 years before he/she would be promoted to the rank of SHI.

k.    A wheel-chair bound HI I was previously offered the promotion to SHI despite his disability.”

286.  I also note Mr Tsui’s explanation of the application of the criterion of experience in CSR 109(1)(a).  He said experience meant the length of service and was the criterion for the first stage of short-listing candidates.  All inspectors having at least the number of years of service as adopted for the criterion for experience will be short-listed for consideration by the promotion board.

287.  Counsel for the plaintiff also reminded me of the evidence of Mr Tsui that it was the policy of the GM Section to post a new HI to the Environment Hygiene Section as HI(EH) to serve in the districts and this policy was known to the promotion board.  The promotion board could thus assume that all candidates had worked as HI(EH).  The plaintiff had indeed worked as HI(EH) in Kwun Tong and Eastern in her first three years in FEHD. 

288.  Mr Tsui also said that the policy of the GM Section was for the HIs to receive different job postings as far as practicable so as to maximize the talents and skills of the officers.  The Posting Policy document issued by the GM Section in October 2000 stated, among other things, the following:

“Posting Policy

  The objectives of the posting policy are:

   (a)   To meet service needs and operation requirements for manpower resources;

   …

   (c)   To aim at maximizing the use of an officer’s talents, knowledge, experience and skills for the benefit of the service;

   (d)   To develop the officers’ career through a wide exposure to different facets of work;

…

Guiding Principles in Posting

…

   (a)   Career postings are normally arranged across the various streams of the HI Grade.  The aim is to provide opportunities for officers to be posted to as many facets of work as possible during the early stages of their careers.

   …

   (c)   On completion of full-time basic training; HI IIs will be posted to district environmental hygiene (EH) posts to gain the necessary job experience.  If they have obtained the Higher Certificate in Meat and Other Foods Inspection, they may be posted to slaughterhouses. …

   (d)   Subject to the attainment of necessary qualifications (including the Higher Certificate in Waste Management), training/skills, vacancies available and service needs, HIs I and SHIs will be posted to non-District Hygiene and District Hygiene posts as far as practicable.

   (e)   An officer will be posted to different Operations Divisions as far as possible.

   …

   (i)    Personal job preferences/interests, family problems, health condition, aspirations for advancement or proximity of residence to workplaces are not the most important considerations in determining postings.  These factsrs may only be taken into account as far as the circumstances permit.  Service needs always take precedence over other considerations.”

The promotion board can assume that the policy has been carried out as far as practicable. 

289.  Mr Tsui also explained that inspectors were placed in as much different work as possible because they need to be in charge of different sections after promotion.

290.  In reliance on the posting policy and the evidence of Mr Tsui as summarized above, counsel for the plaintiff argued that experience should mean exposure to different types of work.  He submitted that inspectors with insufficient experience in this sense would not be recommended for short-listing.  This submission, however, is not based on evidence, it is also contrary to Mr Tsui’s evidence.  Mr Tsui said that once a particular number of years of service have been fixed as the necessary experience for consideration for promotion, all HI Is with at least that period of service would be short-listed for consideration for promotion.

291.  Furthermore, it is also the clear evidence of Mr Tsui that the promotion board would only be given appraisal reports for the last five years of service of the candidates.  The board would thus not be able to tell what posting exposure the candidates had prior to the five years covered by the appraisal reports.  If the extent of job exposure should be considered for promotion, it will also result in unfair advantage for those who were given a wider posting exposure.  Such approach is also contrary to the Government’s promotion policy as stated in paragraph 15(c) of the promotion guide of the CSB referred to above.

292.  Counsel for the plaintiff did refer to some of the plaintiff’s appraisal reports with comments from senior officers that before the plaintiff could take up the full duties of her post, she could not be considered/recommended for promotion.  But this is for the consideration by the GM section and the promotion board, not for the purpose of short-listing.  There are also comments in the appraisal reports saying that the plaintiff should have more exposure in other work streams so as to develop her potential.  These comments are however directed to posting rather than promotion.  Counsel for the plaintiff has thus mixed up the posting policy with the promotion policy.

293.  It is of course desirable to give more posting exposure to the inspectors to develop their talents and potential.  That is to the advantage of the inspectors themselves as well as the long-term interests of the department and the public.  However, posting is a matter that the inspectors themselves cannot have the final say.  Priority has always to be given to the service needs of the department and varied postings can only be arranged as far as it is practicable.

294.  One may argued that a wide posting exposure may enhance the ability of the inspector and facilitate the discharge of duties after promotion.  No doubt experience in any HI posting may be a valuable asset for an inspector if he should be made the supervisor of that post after promotion to SHI.  But there are some SHI posts that have no subordinate HI.  There are also many HI posts that have few vacancies.  Many HIs will not have the chance to work in these posts before their promotion to SHI.  But it does not mean that they will not be posted to supervise these posts after promotion unless the supervisory posts require a particular qualification that the inspector in question may not be so qualified.  For an SHI to be in an unfamiliar post, he/she can learn on the job, study the job manuals and seek enlightenment from colleagues.  There must also be other ways and means to get on the job.  Indeed, Mr Tsui himself had the experience of supervising functions that he had no experience when in junior days.

295.  I accept Mr Tsui’s evidence as summarised above as it is in line with the stated promotion policy of the Government and is reasonable.  I find that a better posting exposure or the opportunity to work in more varied job postings in itself would not be an advantage for promotion.  Likewise, there is no disadvantage for promotion for an HI solely because he has not been given a wide posting exposure.  All in all, I find that the extent of posting exposure is not a factor for consideration for promotion from HI I to SHI.

Did the plaintiff have a chance of being promoted to SHI?

296.  Given the perfectionist character of the plaintiff, her favourable appraisal reports prior to the accident and her eagerness to better equip herself by further study, nobody would argue that she did not have the chance of being promoted to SHI before the accident.  I find that she indeed had a very good chance of being promoted to SHI prior to the accident.

Has the plaintiff lost the chance of promotion to SHI?

297.  The plaintiff pleaded that her disability has rendered her incapable of performing the full range of normal duties of an HI in different postings.  She therefore will not be able to satisfy the relevant experience criteria for promotion as laid down in CSR 109(1)(a).  She also pleaded that she will not be capable of discharging the full duties of the rank of SHI.  Such difficulties also made it impossible or difficult for her to be promoted to SHI.

298.  I think the first question is whether there are HI posts in which she can perform the full or normal duties.  If so, she can fairly compete with her colleagues for promotion.  If she can no longer perform the full or principal duties of any HI I posts, then she may be in the same position of Chun Yat Nam or Lee Kim Fung and have lost the chance of promotion altogether.  If her disability has rendered it difficult for her to perform the full or principal duties so that her chance of promotion is hampered or the promotion would be delayed, then she should be compensated to the extent of the adverse affect.

299.  I would also consider if there is any SHI post that her disability would not prevent her from assuming.

Appraisal reports

300.  Her counsel referred to her appraisal reports and argued that she can no longer perform the full range of normal duties of an HI I in different postings.  Her first report after the accident covered the period from 29 July 1999 to 7 July 2000.  But she was on sick leave from 25 October 1999 because of the accident.  The report therefore only covered her performance up to 24 October 1999.  It was a “very good” report.  It was the 2nd best with the best being “outstanding”.  She got some “As” for certain aspects of assessment and some “Bs” for others.  Her reporting officer said her performance was good and expected her to have potential to take up more responsibilities/duties upon total recovery from the injury.  The countersigning officer and endorsing officer both agreed with the reporting officer.  Part 9 of the report (completed by someone discharging the role of Senior Superintendent) graded her overall performance as “very good”.  This is second to “outstanding”.  On long term potential, it was marked that she “had the potential to rise two or three ranks”.  However, she was marked not ready for promotion.  The remarks of this senior officer said:

“… Because of the prolonged sick leave, her suitability for promotion to the next higher rank is considered inadequately tested.  For this reason, I have reservation to recommend her for promotion to the rank of HI I this time.”

301.  The next report covered 22 September 2000 to 31 May 2001.  She was then in the post of HI(EH) Wanchai.  For most of this period, she was on light duties.  She was also hospitalised for a month between January and February 2001.

302.  The assessment was said to be based on her suffering from physical weakness due to injury on duty.  She was assigned to do indoor office work.  This report was only a “good” report.  It was not as good as the last one.  The assessments for different aspects of performance were also not as good.  However, the reporting officer did say that she was polite and helpful to the public and had a good relationship with her colleagues.  Her long term potential was the same as stated in the last report. 

303.  The remarks by the countersigning officer were however not very good.  He said:

“…She has completed only an estimated 25% of the work of a normal HI(EH).  The additional duty assigned to her, are clerical duties that can be performed by a Clerical Officer under general supervision.  Although she has plenty of spare time in the office, she has seldom if ever seek to take up any assignment or duty and carefully evaluated details of any assignment to ensure that it has not fallen beyond the medical advice of light duty and or in-door light duty.

As her work is simple and easy, she has never demonstrated her profession/technical knowledge or has any chance to apply them.  Since she has to attend medical examination and treatment frequently, senior staff are reluctant to give her urgent or important assignments.  As Miss LAM is normally entrusted with one to two simple assignments that can be completely easily, she is not required to organize her work, let alone to set priority according to their importance.  Probably, she has not put forward any constructive ideas to prove she fore-sight or insight and has not made any subtle/important decision/proposal.  Consequently, she has never been able to demonstrate her drive and determination.

For the above reasons and my increased expectation upon her promotion to HI I, I have re-graded the overall performance to Good and items 4, 6, 7, 9, 10, 11, 12 and 13 from very good to good to reflect that her performance is barely acceptable.

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. …”

304.  The remarks of the endorsing officer were however different.  He said:

“… It is a fact that Miss Lam has not discharged the full range of the duties of a normal HI I for sake of her health condition.  In the absence of a fair trial, it is not appropriate to take the points regarding her long term potential in this report.  Given that Miss LAM has just been promoted to HI I since 8 July 2000, there is ample time for her to prove her performance to compete for her next promotion.  All concerned should be advised to take an objection view on this case.”

305.  The Senior Superintendent also did not share the view of the countersigning officer.  He said:

“…

As the reporting officer has accurately reported on Miss LAM’s performance on her assigned duties and has clearly stated the background for assigning special duties for Miss LAM, I would accept his report.  I opine that the amendments on the ratings by the countersigning officer are unnecessary and should be ignored.

A marginal very good report is noted.  I wish Miss LAM to recover from her sickness soon and that she will be able to perform the full duties of a HI(EH) in the near future.”

The Senior Superintendent also graded her overall performance “very good”.

306.  The next report was for 1 June 2001 to 31 May 2002.  She was still in HI(EH) Wanchai and on light duties.  Her reporting officer graded her overall performance as “very good”.  The endorsing officer said:

“… I fully agree the grading and remarks made by the reporting and countersigning officers.  The general assessment of Ms LAM can only be based on the special duty list focusing on indoor duties due to her health condition as a result of previous work accident.  Hence Ms LAM’s potential for promotion to the rank of SHI cannot be assessed at the present situation without being tested on the performance of core competencies required for promotion.  By the time when she can fully take up the duties of a normal outdoor Health Inspector, a more accurate assessment on her potential can be made.”

307.  Based on these remarks, her counsel submitted that her potential for promotion could not be tested for as long as she was on light duties.  Her list of light duties only involved indoor light duties and did not cover the core competencies or all of them.  Counsel submitted that if her potential could not be assessed, no recommendation for promotion could be made.  Counsel said that core competencies were only acquired by an inspector performing the full duties of a normal HI.  Counsel further submitted that the full duties meant all the duties prescribed in the operation manuals and other documents before the court.  That meant the full duties of all HI postings.  Counsel therefore concluded that unless and until the plaintiff could take up these full duties, she could not be assessed or recommended for promotion.

308.  I think this submission is too ambitious because counsel has tried to make too much out of the remarks in the appraisal reports.  Different posts of HI must have different duties and may require different competencies.  There are so many HI postings that no HI will have the chance to be in all of them.  Furthermore, for those who have opted for the study of waste treatment and not studied for the High Certificate in Meat and Other Foods Inspection, they will not be posted to the food section.  But the lack of knowledge and competence for meat and other foods inspection will not put them in disadvantage on promotion.

309.  I do not think it necessary for an HI to be able to perform the full duties of all HI posts in order to acquire the core competencies required for promotion.  If an HI can perform the full duties in the assigned posts.  I can see no reason why he/she cannot compete fairly with the colleagues for promotion.  The above remarks in the appraisal reports should be understood in the context that the duties of an HI(EH) were basically outdoor and the plaintiff, when in her indoor light duties, could not be tested for promotion as she was merely performing 25% of the duties attached to that post.  Indeed, this is the evidence of Mr Tsui which I accept.

310.  Counsel also referred to paragraph 19 of the promotion guide of the CSB which stipulated that the effective date of promotion is, among other stipulations, the date on which the candidate is considered capable of performing the full duties of the higher officer.  Counsel also referred to the evidence of Mr Tsui that promotion to SHI was not referable to any particular post.  Counsel thus submitted that the full duties of the higher officers as stated in paragraph 19 must mean the full duties of all SHI posts.  I again do not think this submission correct.

311.  An HI will normally stay in a particular post for two to three years.  The appraisal reports for five years that are available to the promotion board may cover performance in no more than three postings.  The promotion board will assume that all HIs must have served as HI(EH) as this is the posting policy.  In fact more than 40% of the HI positions are as HI(EH).  Therefore many HIs will have to serve as HI(EH) more than once.  If the promotion board can only have appraisals of the candidates in respect of at most three postings and can further assume a posting as HI(EH), it cannot tell whether the candidates can discharge the duties in all SHI posts.  Furthermore, as I have already mentioned, those without the Higher Certificate for Meat and Other Foods Inspection cannot work as SHI in the food section.  That however will not disqualify them from being or make it difficult for them to be promoted to SHI.

312.  I think the reference to the capability to perform the full duties in paragraph 19 should be understood to mean the capability and maturity to perform the functions of SHI in general and their supervisory roles in particular.  It is not a reference to the ability to perform all the duties in all SHI posts which the promotion board is not in a position to assess.

313.  The plaintiff’s next appraisal report is for 1 June 2002 to 14 October 2002.  She was still an HI(EH) in Wanchai and on light duties.  I have already referred to this report when I discussed Dr Singer’s report above.

314.  The plaintiff was transferred to HI(RC/PL) on 15 October 2002.  In that post she managed the Resource Centre of the Environmental Hygiene Branch at the headquarters and issued provisional food licenses.  Her performance was appraised by the reports covering 15 October 2002 to 31 May 2003, 1 June 2003 to 1 June 2004 and 2 June 2004 to 28 June 2005.  The first two were “outstanding” reports.  The third one was in a new format and graded “very impressive performance which more than needs requirements”.  That was just below “outstanding”.  I have already quoted the extremely favourable remarks in the first report when discussing Dr Wong’s report.  The countersigning officer in this report also gave her excellent remarks.  The endorsing officer endorsed both remarks.

315.  Her counsel submitted that during this period, she was still on indoor sedentary light work/office duties.  I think this description of her duties is not entirely correct.  HI(RC/PL) was just a normal HI post.  The duties were no doubt indoor and I accept that it was the lightest of all HI posts.  But there was no modification of duties to suit the plaintiff. 

316.  Her outstanding performance meant that she could perform all the duties in this post despite her health problems.  In this post, which was a normal HI post, she was able to compete fairly with her colleagues for promotion.  Any other HI working in this post would have to discharge the same duties and compete for promotion in the same way.

317.  On long term potential, she was marked to “have potential to rise two or three ranks”.  However, her counsel submitted that this marking did not match the “outstanding” grading for overall performance.  Counsel thus suggested that this reflected the theme that the plaintiff needed to take up the full duties of a normal inspector before an assessment of her potential for promotion could be made.  I also think this argument incorrect.  I do not take the normal duties of HI(RC/PL) as indoor sedentary light work/office duties modified to suit the plaintiff.  HI(RC/PL) was a normal HI post and the plaintiff discharged the normal duties attached to that post.

318.  The plaintiff’s next posting was as HI(CR)2 at the Communication Resource Unit of the Centre for Food Safety.  The Centre was a different branch from the Environmental Hygiene Branch and the job nature of the post was different from that in HI(RC/PL).  Counsel again described the duties in this post as indoor sedentary light duties/office work.  That again is incorrect as no duty was modified for the plaintiff sake.  Any HI working in that post would have to discharge the same duties.  There were also other HIs in other HI(CR) posts at the same time.  I am of the view that the duties of the plaintiff in this post were just the normal duties of a normal HI post.

319.  I have already referred to the appraisal report from 29 June 2005 to 31 May 2006.  Her overall performance was graded by the Assessment Panel as “very impressive performance which more than meets the requirements”. 

320.  Counsel’s description of the nature of these duties was for the purpose of arguing that the plaintiff has since her accident been always on modified light duties instead of normal duties.  For that reason, counsel argued that she could never be assessed for promotion.  Counsel further argued that she was kept in indoor light duties and not posted to other posts, this reflected the thinking of the department which was contrary to the evidence of Mr Tsui that she could work in many different HI posts. 

321.  However, I have already found that HI(RC/PL) was just a normal HI post though the duties might be the lightest and HI(CR) was just another normal HI post.  I also find that the duties discharged by the plaintiff in these posts were the normal ones attached to them.  Counsel’s argument that the plaintiff could not be assessed for promotion because she had not been in normal duties is thus just rejected.

322.  On the whole, I do not think the appraisal reports show that the plaintiff can no longer perform the full range normal duties of an HI in all postings.

HI and SHI posts available to the plaintiff

323.  Mr Tsui gave evidence on what HI and SHI posts that were open to the plaintiff in the light of her disabilities as set out in the supplemental joint orthopaedic report.  There were then 29 different HI posts and 28 SHI posts in FEHD.  Mr Tsui considered the supplemental joint report and conceded that the plaintiff could only work in 13 out of the 29 HI posts.  These were posts nos.:

(2)   HI(Cleansing),

(3)   HI(Contract Management);

(4)   HI(Hawker Casework);

(5)   HI(Hawker Manager);

(6)   HI(Communication Resource);

(17) HI(Prosecution);

(19) HI(Hygiene);

(20) HI(Cleansing & Pest Control)1;

(21) HI(Cleansing & Pest Control)2;

(22) HI(Cleansing & Pest Control)3;

(26) HI(Health Education);

(27) HI(Licensing/Resource Centre); and

(29)   HI(School Health).

Of these posts, nos. (2), (3), (4) and (5) were in the Environment Hygiene Branch working in the various districts; nos. (17), (19), (20), (21), (22) and (27) were posts in the Headquarters Division of the Environmental Branch; no. (6) was at the Centre for Food Safety; no. (26) was in the Administration and Development Branch and no. (29) was on secondment to the Health Department.  Mr Tsui also identified posts (6), (17), (19), (20), (21), (22), (26) and (27) as sedentary posts.

324.  Mr Tsui also said that the plaintiff’s disabilities stated in the joint report would not shut her out from the following 15 of the 28 SHI posts.  They were:

(2) SHI(Cleansing/Pest Control) or SHI(Cleansing in NT);

(3)    SHI(Hawker);

(4)    SHI(Market Management);

(5)    SHI(Communication Resource)/SHI(Risk Communication);

(6)    SHI(Food Labelling)l;

(7)    SHI(Food Surveillance);

(8)    SHI(Import & Export);

(13) SHI(Pest Control & Hygiene);

(15) SHI(Prosecution);

(17) SHI(Hygiene);

(18)    SHI(Cleansing & Pest Control)HQs;

(22) SHI(Health Education);

(24) SHI(Hawker and Market);

(25) SHI(Licensing & Inspection Review);

(27) SHI(Hawker)HQs.

325.  These posts again existed in different branches of the department.  Owing to the supervisory nature of the SHI rank, there were fewer SHI posts that the plaintiff would have difficulty in performing. 

326.  In the light of my finding of the extent of the plaintiff’s pains and limitations of movement and her ability to do outdoor work, the concessions of Mr Tsui on behalf of the defendants may now appear too generous.  The plaintiff however did not think that the concessions were enough.  She made a very lengthy supplemental witness statement to deal with this issue and the issue of promotion criteria.  She has also called two colleagues to give evidence to support her case. 

327.  She referred to many difficulties in many HI and SHI posts that she could not perform.  For example in HI(Cleansing) and HI(Contract Management), the HI and SHI would have to go out every week to inspect cleansing sectors.  All cleansing services provided by the departmental staff or by the contractors would have to be inspected.  SHI(Cleansing/Pest Control) and SHI(Cleansing) likewise have to inspect their responsible areas every fortnight.  These inspections cover street and lane cleanliness, litter and dog excreta collecting bins, dog latrines, refuse collection points and bin sites, water scrubber system, vehicle exhaust system, gully cleansing, agricultural waste collection, public toilets and bathhouses, picnic areas, street washing, illegal posters and staff uniform. 

328.  I do not think the plaintiff would have difficulty in carrying out the bulk of these duties.  She may not be able to climb the cat ladder inside a refuse collection point and hence cannot inspect the cleanliness in the cockloft above.  But Mr Tsui did suggest that she could always ask a subordinate to climb up and take some photographs with a digital camera for her to inspect.  Mr Tsui joined the Government as a student Health Inspector in December 1968 and has reached the rank of superintendent before he retired.  If he said that this method of inspection was acceptable, then I do not think the plaintiff could insist that inspection must be by the inspector personally looking at the place to be inspected.  After all, the purpose of inspection is to ensure cleanliness.  If the cleanliness or otherwise of the place can be revealed by a mirror reflection or a digital photograph, then the purpose of the inspection is fulfilled. 

329.  The plaintiff and her colleague also gave evidence that it is necessary to crouch down to inspect the gullies and drain traps on the ground.  I doubt it.  The purpose of inspecting the gully and drain trap is to make sure that there is no rubbish or any article inside.  This is to ensure cleanliness and smooth flow of liquid and wastewater.  But it is not necessary to ensure that they are as clean as the kitchen sink at home.  That is unrealistic. 

330.  The defendants have also called a Deputy Grade Manager of the GM section, Mr Cheung Ming Fai (“Mr Cheung”) to give evidence on various matters including inspection.  Mr Cheung said in his supplemental witness statement in relation to inspection of gullies:

“6. Ms. Tsoi mentioned in paragraph 12 of her statement that it is necessary to adopt a crouching position in checking the cleanliness of a gully.  It is also enclosed and marked as exhibit ‘CMF-4’ being copies of the photos showing an ordinary gully located outside Hong Keung Street Public Toilet.  Again, an inspector may need to lean herself forward to take a look of the inside of the gully by bending her waist, and it would not be normally necessary to adopt a crouching position for such duty, still less ‘reaching to very low place requiring a crouching position’.  Whether a gully is dirty or even blocked by rubbish should be readily observable at a distance, particularly with the use of torch, and it is quite unusual for one to maintain such a close distance with the mouth of the gully by crouching nearby.”

I accept Mr Cheung’s evidence because it is reasonable and realistic.  I do not think it necessary for an inspector to crouch down in order to inspect the gullies and drain traps to ensure that there is no rubbish or articles inside.  To do so may also entail unnecessary health risk.

331.  There is also some evidence about the difficulties in inspecting the high and low corners of public toilets, bathhouses and refuse collection points.  Again, I think for areas that the plaintiff cannot reach, she may ask a subordinate to take some photos of those areas for her inspection.  For inconvenient corners, she may also use a mirror or a torch as suggested by Mr Cheung.

332.  For HI and SHI cleansing posts in the Headquarters, she said that these posts mainly related to formulating policies and operational procedures and improvement of the provision and coordination of cleansing service.  She therefore opined that the experience of performing cleansing and/or pest control duties in the districts would be a valuable asset for one to be in these headquarters posts.  But she said she could not perform the work at the district level, hence her ability to perform in the headquarters posts would be adversely affected to a significant extent.

333.  District cleansing experience may indeed be an asset for the headquarters cleansing posts, however of the 476 HI positions in 29 different postings as referred to by Mr Tsui, only 38 of the positions in two postings are for district cleansing.  If an HI would normally be promoted to SHI within about 15 to 16 years of service and each posting would last two to three years, then there are bound to be some HIs who will have no chance to serve in these two posts before promotion to SHI.  But they still have to serve in the headquarters posts as SHIs.  The plaintiff need not and should not be an exception.  In fact, the plaintiff also acknowledged that not every HI posted to the headquarters cleansing post would have district cleansing experience.  Save the need for district cleansing experience, she has not put forward other grounds for not working in these headquarters post.  These posts are also basically sedentary.  Since the lack of district experience is not a ground, I am sure she can be in them.

334.  There are also some posts that require surprise site inspections and checking and the plaintiff argued that she has difficulty to be in these posts.  I have already found that she is in a position to carry out site inspections.  I will not repeat the reasons again.

335.  Regarding the posts for dealing with hawkers, she produced some newspaper photos showing some HIs crouching on the ground and holding up some questionable food for display to the press.  But that was an occasion of display to the press.

336.  In any case, if she has to examine food placed on the ground for sale, she can ask her subordinates to find something for her to sit on or to put the food on a table or shelf or some other support for her inspection.  Such minor difficulties should not be amplified to a disabling scale.  Many of them can be overcome by a positive attitude and some will power of which the plaintiff is not lacking. 

337.  She also cited an example of the inspection of a mobile hawking van which had to be fitted with a water tank and a pedal operated wash basin.  She said the inspection of such van requires extension of neck and crouching.  I accept the evidence of Mr Cheung that such set up can be inspected with ease and the van operator would also assist.  Furthermore, a photograph taken with flashlight may reveal the bottom part of the set up better than an inspection with naked eyes.

338.  For market inspection, the plaintiff called a colleague to give evidence for her.  This HI said that she would use half an hour to inspect a market or 1½ hours for three markets in Wanchai.  The markets in Wanchai all have two to three storeys.  There are dry food stalls, stalls for fruits, vegetables, meat, seafood and other things.  There are also cooked food stalls.  There are dozens of them situated on the sides of aisles.  If the inspector can inspect a market within half an hour, then he/she would inspect the cleanliness of the stalls intently.  There would be occasions that the inspector may have to look up or down.  But I do not think there would be too much need for climbing up or crouching down, otherwise the inspection of a market cannot be completed within half an hour. 

339.  For the plaintiff, if there should be a few occasions requiring climbing or crouching, she can no doubt seek the assistance of her colleagues for photographs to be taken for her inspection.  I would however note that because of her avoidance behaviour to pigs and carcasses, if she should assume any posts requiring inspection of markets, arrangements should be made so that she need not inspect the pork selling stalls or the stalls adjacent or opposite thereto.  Another colleague or her supervisor may have to inspect these stalls for her.

340.  The plaintiff also referred to hawker control operations and raiding operations.  She delved into the risk of hawkers resisting arrest violently.  However, it is Mr Tsui’s evidence that SHIs and HIs are only supposed to direct the operation to be carried out by the hawker control force.  I do not think the duties of the Health Inspectorate are to keep the peace, control disturbance or maintain law and order like the police.  SHIs and HIs are not trained as police inspectors.  They should not get involve with confrontation or disturbance.  They should stay away from confrontation or disturbance.  As soon as they sense that confrontation may arise, they should immediately call for police assistance.  The hawker control force also provides them with protection.  Even when undertaking arrest and confiscation of the hawker’s paraphernalia, it is primarily done by the hawker controls force and not by the SHIs or HIs.  If any SHI or HI should personally effect the arrest of a hawker, there will be one less commander to direct the operation.  When it comes to confiscation, there is also not much that an inspector can personally take with his/her hands.

341.  In fact, the plaintiff had taken part in such operations for three to four months in Wanchai and never witnessed any SHI personally effecting an arrest with or without a handcuff.  If the SHI and HI can properly assume the role of the commander of the operation, avoid getting into or remaining in situations of conflict and seek help from the police whenever confrontation is likely to arise, I see no risk to them when conducting these operations.  Such operations are in fact frequently carried out all over the territory under the command of SHIs and HIs.  I do not think the plaintiff’s physical problems can prevent her from conducting or taking part in such operations.

342.  The plaintiff also said that she would have problems in doing prosecution work as it is necessary to carry many files to the magistracies.  She said at present it is only when there are hundreds of files to carry that an assistant would give help.  However, if she should have physical limitation in carrying files, I see no reason why an assistant cannot be provided to relieve her even when there are just dozens instead of hundreds of files.  The task of HI(Prosecution) is to appear in the magistracies to do prosecution work.  The need to carry files is just incidental.  It should not prevent the plaintiff from achieving the main task of which she is capable. 

343.  When giving evidence, the plaintiff also expressed disfavour of going to courts because of this case.  However, this is just litigation stress.  It will disappear soon after this case is over.

344.  There are also some arguments on whether the plaintiff can be an HI(School Health) to inspect schools.  Her witness said as an HI(School Health), she had to carry a brief case with gears weighing 3 to 4 kgs and to climb the stairs as most schools do not have lifts.  She had to inspect 8 to 16 schools a day for two days in a week.

345.  The plaintiff’s complaint is of limitation of movements, not reduced capacity for work.  Her appraisal reports showed that her working capacity was not any worse than others.  If her witness could properly inspect 16 schools a day.  She may be able to do the same.  However, if she should find the amount of work exhaustive, she could rearrange the inspection schedule to three or more days per week so that the number of schools for each day would be reduced.  I am a bit surprised by the number of schools to be inspected per day which ranges from 8 to 16.  I do not understand why the range should be so large.  Furthermore, if there should be 16 schools to be inspected on a day, the average time available for inspecting each school would be less than half an hour including the time for travelling and walking up and down the stairs.  If the inspection should be done too briskly, the quality may be affected.  If the plaintiff should be transferred to this post, she can consider rearranging the work schedule to suit her capabilities.

346.  Regarding the brief case, I also do not think that it is as heavy as a carcass.  The HI (School Health) can also consider using a briefcase with wheels to ease the task.  She also does not need to carry all the things to walk up all the floors of a school.  She could take the gears required for the particular inspection and leave the other things behind in the transportation provided.  She can also use her left hand from time to time to ease the task of carrying.

347.  The plaintiff also argued that an SHI may be called upon to double down, that is to assume temporarily the additional duties of the subordinate HI.  She said she had difficulty with some HI posts, hence cannot double down such posts.  She therefore argued that she could not be promoted to SHI.  This argument is flawed as the criteria for promotion to SHI is whether the candidate can be an SHI, not whether he/she can be an SHI in any particular post or whether he/she can occasionally double down some HI posts.  This is not the promotion policy either.

348.  The plaintiff has also said that she did not want special treatment or favours in the arrangement of duties.  If she should be given light duties as when she was an HI(EH) Wanchai so that she was performing no more than 25% of the regular duties, that would surely put her in a special position.  Her special treatment in HI(EH) Wanchai in fact created problems for the CHI and SHI in their management of other HIs.  However, for the posts that Mr Tsui said she could for perform, Mr Tsui said so on the basis that she required no modification of duties in these posts save some modification in the mode of discharge of such duties.  I think the only exceptions are the two posts that entail inspection of markets.  For these two posts, some other colleagues may have to inspect the port selling stalls and stalls adjacent and opposite thereto for her.  For other posts where she may need help from subordinates to climb to high places to take photos, these do not amount to modifying her tasks to light duties and no other HI need to assume part of her tasks.

349.  I might not have dealt with each and every objection that the plaintiff has raised on HI positions as her supplemental witness statement is very lengthy.  But I think I have disposed of the main arguments.  If there should be any minor problems that I have not dealt with, I am sure the plaintiff can surmount them with her positive outlook and her will of a perfectionist.  In this connection, I also refer with approval to the evidence of Mr Cheung in his supplement witness statement:

“10. The important point of general application to make is that there are many ways to carry out a duty, by adopting any of the different means, and with or without enlisting the assistance of any of subordinates and/or equipment.  It is therefore inaccurate to restrict oneself to a particular means and then to highlight it as the norm for discharging such duty.

 11. Further, it is also inaccurate to convey the impression that once she cannot perform one single item of a post, she cannot take up the post altogether.  Taking the example of checking itinerant mobile van, there are only around 20 such vehicles in Hong Kong and only the HIs in around three Districts would be required to undertake such duty.  Even assuming that she could not undertake such duty, and considering this complaint alone, she could always be arranged to take up the same post in another District.  The point of general application to make in respect of her various complaints is that it is simply not the reality that because there exists one item of duty in certain District(s) which she cannot take up, she simply cannot take up such post in all Districts in Hong Kong.  A health inspector is expected to perform full duties of a particular posting.  If he or she has difficulties of performing certain duties within a posting, her supervisor has to consider, firstly, whether the health inspector can be excused from performing those duties and secondly, whether this is a case of transferring this health inspector to another post.  Inability to perform the full duties within a particular posting has nothing to do with the promotion process.  A health inspector is not expected to be assigned to all postings before she is recommended and considered for promotion.  It appears that the Plaintiff has been acting under a misconception that a health inspector is expected to perform full and various different duties in the rank before being recommended and considered for promotion.”

350.  I accept the evidence of Mr Cheung and Mr Tsui.  I agree that there are at least 13 HI posts and 15 SHI posts in different branches of the department that are open to the plaintiff despite her disability as stated in the supplemental joint orthopaedic report.  Mr Tsui referred to a number of these posts as sedentary.  The plaintiff said that they had occasional outdoor duties like inspection duties too.  I would describe them as basically sedentary and do not think the occasional outdoor duties would bar the plaintiff from them.

351.  I also hold that with the availability of these HI posts, the plaintiff has proper opportunities to be exposed to different types of work of the department and to fairly compete with her colleagues for promotion to SHI.  I further hold that she has been in fair competition with her colleagues for promotion since she was in HI(RC/PL).  The five years of appraisal reports for consideration of promotion will not include those prior to August 2002 as she was promoted to HI I in August 2000 and will normally not be considered for promotion for at least seven years after that. 

352.  I also hold that there are many SHI posts that can accommodate her and for her to perform in the normal way despite her disability.  Hence, the availability of SHI posts to her will not be limited by her disability to the extent of adversely affecting her chance of promotion.  All in all, I hold that she has not lost and will not lose any chance of promotion by reason of her disability.

353.  Before the conclusion of evidence, the 1^stdefendant intended to introduce more evidence on the available HI posts because of the creation of one or two new posts.  I recognise that the functions of the department are changing with the needs of community.  New posts of HI and SHI will be created and old posts may become obsolete from time to time.  However, most of the current services and hence the current posts will remain in the years to come.  Even if I should allow the further evidence on the one or two new posts, there will still be changes to come.  The structure of the departure is dynamic.  But I see no reason for the number of HI and SHI posts available to the plaintiff to be changed significantly in the foreseeable future.  Hence, I declined the attempt of the 1^stdefendant to introduce the new evidence.

QUANTUM

Schedule I — Loss and Expenses Incurred

1A — Loss of allowances

354.  The plaintiff received $7,065.72 in the 12 months before the accident as acting allowance and other allowances for typhoon, on-call duty, shift duty etc.  Of this sum, $3,592.44 was acting allowance.  I accept Mr Tsui’s evidence, which is unchallenged, that there was backup arrangement in the slaughterhouse and no need for acting appointment.  No acting allowance could therefore be earned from 29 July 1999 to 21 September 2000 when she was posted in the slaughterhouse.

355.  When she was an HI(EH) Wanchai from 22 September 2000 to 14 October 2002, but for her being on light duties, it was more likely than not that she would have received the various allowances as before.  However, when she was in HI(RC/PL) from 15 October 2002, she was in a normal HI post discharging its full duties.  She was not in any special arrangement which would have reduced her chance of earning the allowances.  The same applied when she was in HI(CR)2 from 29 June 2005 onwards.  Her appraisal report for her work in this post also showed that she had been given a number of acting appointments.  Her loss of allowance is therefore limited to the periods from the date of injury on 25 October 1999 to 21 September 2000 as HI(Slaughterhouse) (but without acting allowance) and from 22 September 2000 to 14 October 2002 as HI(EH) Wanchai.  Though she has no contractual right to earn such allowances, I find on a balance of probability that but for the accident, she would have earned them during the above periods.  I therefore allow this claim as follows:

($7,065.72 - $3,592.44) x 333/366 + $7,065.72 x 753/365

=  $17,736.84

1B — Loss of Earnings in respect of no pay sick leave

356.  The plaintiff attended the joint examination by the orthopaedic experts on 18 July 2003.  The experts opined that her orthopaedic recovery had reached an end stage.  They approved of her sick leave up to 4 October 2002.  Dr Wong’s assessment, which I accept, is that she should have recovered from her psychiatric illness in mid to at the latest the end of 2003.  She was not paid her salary when on sick leave from the 25^th month after the accident.  I therefore allow her claim for the loss of salary up to and including 4 October 2002.  She had not taken any sick leave from 5 October 2002 to the end of 2003.  The total sum pleaded in her Re-Amended Statement of Damages for this item from 18 December 2001 to 4 October 2002 is $21,717.57 for 19 days and I allow the same.  

1C — Loss of earnings for attending medical assessment and court hearings

357.  The plaintiff attended the assessments not for treating her injury but for prosecuting this action.  The same applies to her attending the court hearings.  The losses resulting therefrom, if any, are not damages occasioned by the injury but are part of the litigation costs.  I cannot award any damages for this claim.

2 — Loss of interest on earnings

358.  The plaintiff claims that her promotion from HI II to HI I was delayed from 8 July 2000 to 20 August 2001.  The delay should have been from March 2001 to August 2001.  She said there was a delay in her getting the higher salary of HI I.  She therefore claims interest for the delay on the increased amount of salary.  However, if there was any delay in effecting her promotion, it was not the natural or direct consequence of her injury.  Rightly or wrongly it was the administrative decision of the 1st defendant.  If the plaintiff should consider that despite her injury, the 1st defendant should have promoted her earlier, she can take up this claim of interest with the 1st defendant, but through another means.

3 — Medical expenses

359.  For medical expenses, the defendants query the need for consulting Dr Fang and the Chinese herbalist for treatment.  The ground is that the plaintiff could have resorted to the free treatment given by the Hospital Authority.  I disagree.  If the plaintiff needed treatment, then she could obtain the same either from the Hospital Authority or from any private practitioner so long as the fees are reasonable.  I do not see why the plaintiff should have necessarily gone to the Hospital Authority where the costs are subsidized by the public.  The defendants have no right to insist that the plaintiff should be treated at the expense of the public.  The defendants also object to a sum of $80 paid to TKO Hospital for treatment of abdominal pain and a sum of $820 paid to a dermatologist on the ground of irrelevance.  I uphold these objections and make no order for these two items.  The rest of items totalled $4,990 and I award the same to the plaintiff.

4 — Tonic food

360.  The plaintiff claims $7,000 for tonic food.  Some payment is usually given for tonic food even without expert evidence on the need.  However, the plaintiff was not seriously injured.  She also produced no receipt or any particulars of tonic food consumed.  I therefore allow only $4,000 for this claim.

5 — Travelling expenses

361.  The plaintiff claims a total sum of $24,896 for this item from after the accident to 2007.  It is a continuing claim.  For expenses incurred prior to 15 March 2005, the defendants only objected to a sum of $121.20 for eight trips to Chinese herbalists and another sum of $2,240 for four taxi-journeys by her parents for going to MacLehose Medical Rehabilitation Centre to visit her.  I allow the first sum.  The second sum may appear expensive.  However, it is for the sake of her elderly parents.  I therefore allow it as well.

362.  For sums incurred from and after 15 March 2005, they are not recoverable as the plaintiff has recovered from her illness as caused by the accident at the latest by the end of 2003.  The total claim allowed under this head is $8,374.60.

6 to 9 — Tense machine and associated expenses for pain relief

363.  The total claim is $2,499.  The defendants object to this for want of expert evidence.  In the light of the findings in the joint orthopaedic report, I will allow this as I agree with the need for pain relief and the sum incurred is not excessive.

10 — Postage for sending sick leave certificates to the slaughterhouse by registered posts

364.  The plaintiff claims $360 for sending 18 sick leave certificates by registered posts.  The defendants object to this claim.  The defendants have not argued for reduction of the damages payable to the plaintiff on the ground that she could have saved some travelling expenses in not having to go to work.  If the plaintiff should have taken her usual transportation to the slaughterhouse to present the sick leave certificate, she would not have been entitled to be paid such expenses by reason by her injury.  The costs of the registered post are smaller than her costs for going to work at the slaughterhouse and I would not allow them.

11 — Hydrotherapy exercise at public swimming pool

365.  The plaintiff claims $4,590 for paying 270 visits at $17 per visit to public swimming pools.  She pleaded that she went to the swimming pool for hydrotherapy as advised by the physiotherapist at YFS Memorial Centre Dermatology Clinic to strengthen her neck, shoulders and arms and for pain relief.  However, no such advice has been produced.  There are also no particulars on when these visits were undertaken or how the hydrotherapy was applied.  I cannot entertain a claim in vacuum.  I make no award for this claim.

Schedule II — Loss of Future Earnings and Expenses

1A — Future loss of allowance

366.  Since the end of 2003, the plaintiff could have work in any of 13 normal HI posts and could have earned all allowances in the usual course of her employment and in the same way as her colleagues.  I make no award for this claim.

1B — Future loss of earnings in respect of no pay sick leave

367.  I have already held that the plaintiff was entitled to sick leave up to 4 October 2002 only.  I therefore make no award for this claim.

1C — Future loss of earnings for no pay sick leave for post-operative rest

368.  This claim is for the rest after the operation on her prolapsed disc.  Her counsel referred to the maximum period of full paid leave permitted by the CSR for accident attributable to the nature of official duties.  The provisions in the CSR mirror those in the Employees’ Compensation Ordinance closely.  The maximum in the provisions in the CSR cannot apply to remedies allowable in a personal injuries action.  I do not think I need to consider those provisions. 

369.  Counsel also submitted that Dr Jack Wong said in his supplemental report dated 25 July 2005 that if the prolapsed disc was caused by the accident, it would have appeared in the MRI taken in 2002.  This submission is wrongly based as the reference to “2002” by Dr Jack Wong was obviously a typographical error.  Dr Jack Wong was referring to MRIs taken in 2000 and 2001 though the reference to 2001 is now found to be erroneous.  I have agreed with Dr Jack Wong’s explanation for saying that the prolapsed was unrelated to the accident.  Any operation in future as may be necessitated by the prolapsed disc is not caused by the accident.  I therefore make no award for this claim.

ID — Future loss of earnings due to sick leave for psychiatric treatment

370.  I have already held that the plaintiff have achieved full recovery at the latest at end of 2003.  I therefore make no award for this claim.

1E — Loss of pension due to no-pay sick leave

371.  She had 19 days of no pay sick leave.  On her formular for calculation of annual loss of pension, the annual sum lost is:

$459,180 (annual salary) x 19/30 (no. of month of no pay sick leave) x 1/675 = $430.84

She also claims a multiplier of 15.  The defendants contend that the multiplier for pension loss should be 12.  Counsel for the defendants submitted that the calculation should be based on a life multiplier because pension is paid until death.  The plaintiff will retire at 60.  Counsel further submitted that the appropriate life multiplier should be 12.  Counsel relied on the following cases:

Tsoi Yau Ya v Chan Kwok Hung & Anor, HCPI 1388/1999, life multiplier of 18 for a 34-year old woman at trial;

Chan Yuk v Dragages Et Travaux Publics (H.K.) Ltd. &J Ors,

HCPI 1066/1998, life multiplier of 12 for a 55-year old man at trial; and

Ho Ho Ming v Tse Po Wah & Ors, HCPI 1168/2003, life multiplier of 20 for a 29-year old man.

372.  I think the defendants’ contention is more reasonable and I take 12 as the life multiplier.  This loss of pension is therefore quantified at $430.84 x 12 = $5,170.08.

1F — Loss of annual leave due to no pay sick leave

373.  The plaintiff’s formular for calculating this loss when applied to 19 days of no pay sick leave is:

$1,275.50 (daily salary) x 19 (days of no pay sick leave)/260 (working days in a year) x 40.5 days = $3,774.98.

I allow the same.

2 — Costs of future medical attention

374.  There is no need for any future medical attention and I make no award under this head of claim.

3 — Costs of future travelling expenses

375.  Since there is no need for future medical attention, there is also no need for travelling.  I also make no award under this head.

Schedule III

Handicap in the Labour Market

376.  The plaintiff claims damages for loss of earning capacity and disadvantage in the labour market.  No figure has been proposed.  It is pleaded in the Re-Amended Statement of Damages that her orthopaedic and psychiatric conditions will continue to affect her efficiency and motivation for work.  Her counsel further submits that there is a real risk that the 1st defendant will not maintain her employment after the case has come to an end.  But this submission is not based on any evidence.

377.  The defendants oppose this claim by pleading that the plaintiff was employed by the Government on permanent pensionable terms and there was no risk that she would be thrown into the labour market.  The defendants’ counsel also referred to the decision of the Privy Council in Chan Wai Tong v Li Ping Sum  [1985] HKLR 176, where Lord Fraser of Tullybelton said at page 183:

“The claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated.  The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.  The Court has to evaluate the present value of that future risk see Moeliker v A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140 where Browne, L. J. dealt fully with this matter.  Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment.  If he is, and has been for many years, in secure employment with a public authority the risk may be negligible.  In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment.  Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability.  This will depend largely on the nature of his employment.  Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant.  In the present case there is no evidence at all on these matters.  Accordingly their Lordships are of opinion that the sum of $108,000.00 awarded by the Court of Appeal under this head was unjustified and must be deleted.” (emphasis supplied)

The plaintiff is in the same situation as Chan Wai Tong.  I therefore make no award for this claim.

 Schedule IV — Loss of Earnings Due to Loss of Chance of Promotion

1 — Loss of earnings

378.  I have already held that the plaintiff has not lost and will not lose any chance of promotion.  I therefore make no award under this head.  If I were wrong and the plaintiff has definitely lost her perfect chance of promotion, then I would calculate her loss by the multiplier and multiplicand approach and not the lump sum approach as suggested by the defendants.  The multiplier and multiplicand approach is more suitable for calculating future loss of earnings which would otherwise be paid regularly.

379.  The plaintiff proposed a multiplier of 15 whilst the defendants suggested 11.  The defendants relied on the quantum tables in HKLRD 2004-2006 and submitted that the reasonable age for the plaintiff to be promoted to SHI would be 42 and she would retire at 60.  It will take some years before she will be 42.  Having reviewed the quantum tables, I would adopt 12 as the multiplier.

380.  The plaintiff pleaded that she had definitely suffered the loss of a perfect chance and should be award 100% of the sum calculated.  The defendants however argued that she should only get 10% of it.  I disagree with the defendants’ suggestion.  If what the plaintiff has lost was only a 10% chance for promotion, then no award should be made for it as it was not a substantial chance.  If the defendants are saying that she had a good to perfect chance, but only lost 10% of it by say a delay in promotion, then I see no evidential basis for this suggestion of minor loss as no body suggested that her promotion to SHI will be slightly delayed by her injuries as caused by the accident.  The plaintiff’s case is that she has lost the perfect chance completely.  The defendants’ case is that her good chance has not been dented at all.  It would be too speculative for me to decide it at any point in between.  I would therefore calculate the amount of the award on the basis of a complete loss of a perfect chance.  The sum would be:

$7,215 (the difference between the median salary of SHI and the median salary of HI I per month) x 12 x 12 = $1,038,960

2 — Loss of pension

381.  For the same reason that she has not lost any chance of promotion, I make no award under this head.  However, if I were wrong, then she would be entitled to damages for loss of pension too.  In calculating the loss of pension because of no pay sick leave, I have already adopted 12 as the multiplier.  She has taken 19 days of no pay sick leave and the loss has already been compensated above.  The full annual pension of HI I at 60 after reduction for 19 days of no pay sick leave is:

$38,265 x 12 x (420 – 19/30) x 1/675 = $285,281.18

The full annual pension of SHI at 60 after reduction for 19 days no pay leave is:

$45,970 x 12 x (420 – 19/30) x 1/675 = $342,725.11

The annual loss of pension is:

$342,725.11 – $285,281.18 = 57,443.93

The award should thus be at:

$57,443.93 x 12 = $689,327.16.

Schedule V

Loss of Congenial Employment

382.  She claims compensation for $200,000 for the loss of her ability to perform outdoor duties of an HI and duties involving animal examination which she enjoyed.  I have already found that she can assume outdoor duties of some normal positions of an HI.  There is also no evidence to support this claim.  I make no award for it.

Schedule VI

PSLA

383.  The plaintiff seeks a sum of $900,000 for PSLA.  She relies on Luk Yee Lam v Qrasa Livasiri, HCPI 394/2002, Marlene Susanne Courbet v Mandarin Divers Marine Services Ltd, HCPI 677/2000 and Lee Yuen Ngan, Amy Lawrence v Lau Wing Hop, HCPI 223/1999. 

384.  Luk Yee Lam was a taxi driver aged 40.  He suffered a whiplash-type injury.  An MRI showed disc herniation at C5-6 with residual pain in the neck and back, numbness in the right arm and left wrist, weakness in his hands, some numbness and pain in his right leg and feet and reduced sexual desire because of pain.  He could not take part in sports or swimming and could not drive taxi again.  Doctors agreed that he had 16% impairment of the person.  Master Woolley award him $400,000 for PSLA on 27 November 2003.  In the light of my findings of the plaintiff’s injury as caused by the accident and her subsequent recovery, I find Luk’s case more serious.

385.  In the second case, Miss Courbet, a solicitor, fell through an open hatchway into the hold of a boat in June 1997 and sustained a blow to the back of her head.  She hurt her neck, shoulders and upper back.  She felt a lump at the back of her head and pain over her neck, shoulders and back.  She felt dizzy and nauseous and vomited later.  She was treated in a hospital and discharged.  She felt too ill to return to work that week.  She had headaches, sickness, pain over her neck and shoulders, dizziness and chronic tiredness.  These symptoms persisted after her return to work and affected her attention and concentration.  She could not stand noise and had to cut down her working hours and took days off sick.  She exhibited symptoms of pain, depression and anxiety attacks.  She continued to have difficulty to concentrate and absorb materials and had difficulty in sleeping.  She was diagnosed to be suffering from post-concussional syndrome.  The symptoms distressed her for over two years. 

386.  In September 2001, she was till having headaches, neuralgia and back pain.  Some headaches resulted from damage to the greater occipital nerve.  They started at the back of head and tended to spread over the left side of her head consistent with the branches of the occipital nerve.  She also suffered another type of more persistent headache occasioned by trauma to an already degenerated spine.  X-rays showed in particular widespread degenerative change in the cervical spine especially from C3 to C7 level.  The degeneration was common in sporty adults, but without trauma, they would not necessarily cause symptoms unless much later in life and even then the symptoms might be mild.  If she was under pressure or rushes, the headache intensified and remained throughout the day.  She had spells of severe headaches lasting several days.  Her sporting activities were curtailed.  She played less tennis as it brought on headache.  She could not swim as the head movement brought on pain.  Vigorous gym also triggered headache.  Her quality of life was affected.  She went to work later and left earlier.  She worried more and found work harder.  Deputy High Court Judge Longley awarded her $500,000 for PSLA.  Her conditions were also more serious than those of the plaintiff.

387.  In the third case, MadamLee Yuen Ngan met a serious traffic accident in March 1998 as a front seat passenger.  She suffered a ruptured spleen with intra-abdominal haemorrhage.  She had an emergent splenectomy and was hospitalised for 16 days.  She had an 11 cm scar on her abdomen.  She also suffered a chronic whiplash to her neck that caused neck pain.  She felt “pins and needles” in her left leg from buttock to ankle when seated for over two hours.  She also experienced chest pain on the left side at the end of each days work.  There was stiffness, numbness and dull ache in her lumbar and thoracic regions and her sacrum.  She also had anxiety and stress when encountered situations reminiscent of the accident.  At times, panic attack set in and left her with palpitation and shortness of breath.

388.  The symptoms affected her work, her daily living and social life.  When examined by her doctor at the end of 2000, her mood was clam but when she related her mental anguish and predicaments, she at one point could not hold back her tears.  Her doctor found her to be depressed about her various impairments but her grasp of reality was unimpaired.  She displayed no idea of paranoia, delusion or hallucination.  For her whiplash injury, she was still taking painkillers three years after the accident.  She had also attended physiotherapy twice a week at a government hospital.

389.  There was no dispute that she suffered from PTSD which manifested in her fear of cars and driving and anything that reminded her of the traumatic experience she went through and resulted in anxiety and panic attacks.  It could subside with time. 

390.  She used to be engaged in water sports actively.  She was a pioneer in the field of nail beauty in Hong Kong.  She won the Innovative Entrepreneurs Award in 1997.  She was very appearance conscious and of her body look.  She used to wear bikinis at beaches and garments that exposed her body look.  She considered the abdominal scar to be extremely ugly which totally destroyed her self-esteem and confidence.  It destroyed her zeal for water activities.  It also caused her sexual problems.

391.  The feeling of loss of her beauty, her health and perfection epitomized by her abdominal scar and to a lesser extent her neck pain had caused her dysthymic disorder.  The symptoms were severe depressive moods, hopelessness and inability to pick oneself up.  Her PTSD improved by her resuming driving cars, but the dysthymic order gradually assumed a larger portion, took over from PTSD and moved to the forefront.  These came about because she could not let go of her loss.  A cosmetic surgery in August 2000 improved the appearance of the scar but it will remain there for the rest of her life.  She had become withdrawn both in her work and daily living.  Her eight hours per day and six days per week work schedule had become a half-day work for only three days per week schedule.  Her 600 clients for personal service had fallen to some 18 or so.  She also ceased making presentation of new beauty products which she used to do frequently before the accident.  Suffiad J award her $600,000 for PSLA.  This case is much more serious than that of the plaintiff.

392.  The defendants referred to the following cases:

Ho Ni Fuk v Yip Wing Kin & Another, HCPI No. 166 of 2001, date of Judgment: 15.11.2002;

Kam Wai Ming v MTR Corp Ltd & Another, DCPI No. 408 of 2002, date of Judgment: 11.12.2003;

Lam Chiu v Poon Tat Hing & Another, DCPI No. 203 of 2001, date of Judgment: 11.4.2002;

Chan Siu Youn v Ng Kam Man & Others, HCPI No. 533 of 1999, date of Judgment: 28.7.2000; and

Li Mei Yung v Eastern Pacific Circuits (HK) Ltd, DCPI No. 1683 of 2005, date of Judgment: 3.11.2006.

Except the first one, these were less serious cases.  None of them had any significant psychiatric issue.  I do not think they can serve as guidelines. 

393.  Considering both the physical and psychiatric aspects of the plaintiff.  I would award $250,000 for her PSLA.

394.  The sums awarded are summarised as follows:

Schedule I
1A — Loss of allowance	$17,736.84
1B — Loss of earnings in respect of no pay sick leave	$21,717.57
3 — Medical expenses	$4,990.00
4 — Tonic food	$4,000.00
5 — Travelling expenses	$8,374.60
6-9 — Tense machine etc.	$2,499.00
Sub-total:	$59,318.01
Schedule II
1E — Loss of pension for no pay sick leave	$5,170.08
1F — Loss of annual for no pay sick leave	$3,774.98
Schedule VI
PSLA	$250,000.00
Total:	$318,263.07

If, contrary to my findings, the plaintiff should also be entitled to damages for loss of chance of promotion, then the following sums should be added:

Schedule IV
Loss of earnings and benefits due to loss of chance of promotion.
1. Loss of earnings	$1,038,960.00
2. Loss of pension	$689,327.16
Total:	$2,046,550.23

INTEREST

395.  I also order interest at 2% per annum on the PSLA award from the issuance of the writ to the date of judgment and interest at half of the judgment rate on the special damages of $59,318.01 from the date of accident to the date of judgment.

COSTS

396.  Finally, I make the following costs orders nisi.  I order the 2nd defendant to pay the plaintiff the costs of this action to be taxed at the District Court Scale.  I also order the plaintiff to pay the 1st defendant the costs of this action to be taxed at the High Court Scale. Regarding the plaintiff’s own costs, I order that they be taxed in accordance with the Legal Aid Regulations.