Introduction
In the recent case of Yeung Lai Ping v Secretary for Justice [2019] HKCFI 881, the government has been ordered to pay nearly HK$21 million in compensation to a former dental officer, who had to retire from civil service nearly 20 years ago, after she suffered severe injuries to her right wrist due to excessive workload. The judgment serves as a timely reminder to the employers that they must take reasonable steps to safeguard their employees from injuries in the course of employment.
Case background
The plaintiff, Ms. Yeung Lai Ping, was formerly employed by the Department of Health of the Hong Kong Government as a dental officer. She claims damages for injuries to her dominant right wrist, including an attrition injury to the triangular fibrocartilage complex (“TFC”), which put an end to her dental career. It was alleged that the injuries to her right wrist were caused by the excessive amount of surgical extractions (“SX”) that she was assigned to perform when she worked at the North District Hospital from the end of September 1998 to the beginning of October 1999. As opposed to non-surgical extractions, SX requires continuous exertion of force. The wrist was put under a lot of strain when the drill was used continuously to cut very hard bone and hard teeth substance.
In late May to early June 1999, the plaintiff started to feel weakness in her right wrist and nocturnal paraesthesia. In July 1999, right wrist pain started to occur when she performed dental procedures. By late September 1999, the increase in the severity of her right wrist pain, especially on exertion, together with her right hand paraesthesia, had made dental work intolerable. The plaintiff was granted sick leave from 4 October 1999 to 23 October 1999.
Notwithstanding that her condition was well known to her supervisor, Dr Sunny Tsui, he refused to change the schedule for the plaintiff, after she returned to work from sick leave. 3 SX cases had been, and remained, assigned to her to carry out during the Saturday morning session on 30 October 1999. In the course of those extractions, her right wrist gradually became more painful and that, towards the end of the third case, she suffered excruciating pain in her right wrist. On 1 November 1999, the plaintiff was granted further sick leave for a few weeks, which was subsequently continued until 24 December 1999.
After the injuries, the plaintiff was transferred to work at the School Dental Care Services in the MacLehose Dental Centre in February 2000 and remained in that post until her invalidation from the civil service in August 2004.
Court’s ruling on liability
An X-ray of the plaintiff’s right wrist showed that the plaintiff was ulnar positive for 1 mm. The defendant contended that the positive ulnar variance, as opposed to the excessive workload, was the major factor causing the TFC injury. The Judge however considered that such assumptions that a minor structural variance at the wrist would disable a young working person could not stand reasonable and logical analysis. Instead, the Judge found that the main cause of the TFC injury was the repetitive strenuous activities related to dental extractions and the related wrist movements. The minor positive ulnar variance was only a minor cause of the TFC injury in that it made the plaintiff more vulnerable to unfavourable work-related manual stresses. Furthermore, it is trite law that liability attaches in negligence even though the conduct complained of was not the sole or major cause of the damage that was suffered: In BAE Systems (Operations) v Konczak [2017] EWCA Civ 1188. The Judge thus held that the test of causation was satisfied.
The Judge further held that the Department of Health owed a non-delegable duty of care to its employee, the plaintiff, to take reasonable steps to safeguard her from injury in the course of employment. From 31 August 1999 to 30 September 1999, the work that was assigned to the plaintiff to perform was considerable, being twice and more than twice the amount of SX that 4 other dentists had to perform during the relevant period, despite the fact that she had started to suffer from right wrist pain from late July or early August 1999, had to wear a splint, and was prescribed pain relief medication. Further, notwithstanding that her condition was well known to Dr Sunny Tsui, 3 SX cases remained assigned to her to carry out during the Saturday morning session on 30 October 1999 after her return to work from sick leave.
The Judge held that it was reasonably foreseeable that the assignment of an excessive amount of SX to a dentist to perform would create an unreasonable risk of injury and damage to the wrist of the dentist assigned to carry out that work. The Department of Health was thus in breach of its duty of care owed to the plaintiff by assigning to her an excessive amount of SX to perform during the period in question.
Court’s ruling on damages
On the issue of damages, the defendant seeks a discount of 75% on account of the plaintiff’s double vulnerability: 1mm ulnar variance in the right wrist and the greater variance and greater prosperity to develop carpal tunnel syndrome in the left wrist. The Judge noted that in Chan Kam Hoi v Dragages Et Travaux Publics [1998] 2 HKLRD 958, it was held that where there is a strong possibility that some other event, or natural progression of the condition would have brought about the plaintiff’s present state, it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.
The Judge accepted the plaintiff’s evidence that she wished to become a prosthodontist and that she was well on her way towards completing her training programme. If she had not suffered the TFC injury to her right wrist in October 1999, she would have qualified as a prosthodontist and worked as such no later than 3 to 4 years from October 1999. Prior to working at the North District Hospital, the plaintiff did not experience any numbness or other symptoms in her right hand and wrist, either from dental work or from any other cause in the course of almost 7 years of practice as a dentist from February 1990 to September 1998. The Judge also accepted that if the plaintiff had not suffered the TFC injury to her wrist in October 1999, there was only a remote possibility that her continued practice of dentistry in the 3 or 4 years after October 1999 would have brought about the plaintiff’s present state. The work of a prosthodontist does not require her to undertake repetitive strenuous dental activities using her hands and wrists which could cause upper limb musculo-skeletal disorders, including carpal tunnel syndrome, and would not have posed any risk to her pre-existing vulnerability. Accordingly, the Judge refused to discount the damages on account of the pre-existing vulnerability.
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This article was originally published on ONC Lawyers.
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