Thursday, June 23, 2022

Henry Litton Comments on Yeung Lai Ping v Secretary for Justice (CACV 206/2019)

Commentary on Yeung Lai Ping v Secretary for Justice (CACV 206/2019)
Henry Litton, Honorary Professor

HEALTH WARNING: Reading this article might arouse such sense of outrage it could damage your health, particularly for those suffering from high blood pressure.

This is the story of a public health provider that cares neither for the welfare of its patients nor the health of its employees; and when an employee injured at work sought redress for harm done, the department deployed lawyers to crush her by the weight of black-letter law.

Yeung Lai Ping (the plaintiff) qualified as a dentist when she was 23. She practised for about 4½ years, then resumed full-time studies, obtaining a Master of Dental Surgery degree when she was 30.
     In February 1997 she joined the Department of Health as a dental officer, and in the course of her practice performed a considerable number of surgical extractions (SX). This involved the removal of bone and cutting of teeth, operating in an awkward position and the use of some force. It also involved the use of hand-held drills for about 20-30 minutes in each session. The drill, inevitably, would transmit vibrations to the wrist.
     The wrist is prone to strain. The structure of the wrist comprises eight small bones, allowing it to be flexible. But sprain can easily occur, as typists and tennis players well know. The symptoms are pain, numbness and swelling. Repeated over-exertion might result in carpal tunnel syndrome and triangular fibrocartilage tear. These are very serious conditions.

Work at North District Hospital
In September 1998 the plaintiff was posted to work as a dental officer in the dental unit of North District Hospital (NDH): a newly opened hospital. The dental unit had only two dentists – the plaintiff and Dr Tsui, her supervisor.
     Prior to working in NDH the plaintiff had no problem with SX. Her patients were well-served by her exercise of skill in surgical extraction operations.
     Her work schedule at NDH was gruelling. Her appointment book was marked three months in advance. The number of SX required of her was far greater than that of Dr Tsui. Between October 1998 to September 1999 she performed 710 SX. Over the same period Dr Tsui did 479 SX.
    Her work in NDH over a period of 13 months resulted in her developing carpal tunnel syndrome and triangular fibrocartilege tear. This eventually ended her career as a dentist.

The legal proceedings
On 2 September 2002 the plaintiff issued a writ seeking damages against the government. It was not until 14 years later that the action was heard in court. That took place in December 2016 and March 2017. Judgment was delivered in April 2019. The judge found that the department had failed to maintain a safe and healthy workplace and had breached its duty of care to the plaintiff. She was awarded substantial damages and costs.

The findings of fact
The plaintiff first developed symptoms in her right hand and wrist in mid-1999. This was known to Dr Tsui who had monitored closely her appointments. As the judge found, a reasonable and prudent employer had the duty to consider the plaintiff’s capabilities and condition, and adjust her duties particularly as regards SX. Those capabilities had, of course, a direct impact on her patients’ welfare. Because the dental unit was so short-staffed and the demands of the patients so pressing, there was no real choice that her SX might have been lessened.
     From July 1999 the plaintiff wore a hand splint and sought medical and physiotherapy treatment. Her work schedule did not diminish. In October she took three weeks’ sick leave and returned to work on 25 October, with the symptoms only partially relieved. Dr Tsui made no inquiry of her condition and put her back onto the same gruelling schedule. Things came to a head on 30 October (a Saturday) when she was given three SX to perform. On the third SX she suffered excruciating pain in her right wrist and could not continue the operation (to the distress of her patient, of course). She was later diagnosed to have suffered carpal tunnel syndrome and a tear to the triangular fibrocartilage complex which effectively ended her career as a dentist.
     The judge found as a fact that, on the plaintiff’s return from sick leave, Dr Tsui told her he would not change her schedule; complaints from her would not have resulted in her rescheduling; and, in particular, the 3 SX fixed for 30 October. It would seem that Dr Tsui himself was under pressure. The fault was in the heartless system of the department which was interested in numbers and not in the welfare of people under its care.
     It was on these facts that the trial judge found for the plaintiff. What civilised legal system in the world would not have arrived at the same conclusion? And, it might be added, what caring public health provider in the world would not have felt sympathy for the plaintiff, accepted responsibility for the incident and moved on? Not the Hong Kong Department of Health.

The Health Department launched an appeal, dealt with by the Court of Appeal (CA) by its judgment of 8 March 2021, comprehensively reviewing the judge’s findings and affirming his conclusions.

Application for leave to further appeal
On 7 April 2021 the department sought leave from the CA to take the matter to the Court of Final Appeal. The CA determined the matter a year later on paper, by its ruling of 20 May 2022.
     This is a 22-page document where the CA comprehensively disposed of the eight purported questions for the CFA’s consideration. They were all dismissed. The CA rejected the application for leave to appeal in its entirety.
     Beneath its dignified language, one can sense boiling outrage rightly felt by the CA. The trial judge, three years earlier, had made clear findings of fact, putting an end to litigation which started in 2002. The fact that the department had grievously failed to discharge its duty of care to the plaintiff could hardly be in doubt. The CA had affirmed those findings. And yet the Health Department was not satisfied; it wanted lawyers to engage in a point-scoring nit-picking forensic game to deprive the plaintiff of redress, as if the health and well-being of Yeung Lai Ying were of no account; it wanted the plaintiff back in the grinding forensic machine to face further delay and anxiety. Having been responsible for damaging the plaintiff’s health, ending her dental career, it cared not whether further proceedings might not damage her mental health as well.

The eight questions
The eight questions were farcical. Question 1 was a pure pleading point which no modern judge would for a moment entertain. Question 2 was this:
“Whether factual findings on the nature of injury suffered by a plaintiff employee, and causation between such injury and the alleged breach of duty committed by the defendant employer, may be made by resorting to ‘common sense’ to fill a gap not covered by the medical evidence, when the medical experts have not been asked to give an opinion on those issues?”
Common sense indeed. What is singularly missing is common sense in the department’s whole approach; common sense and compassion. The following six questions simply piled absurdity on absurdity and bear no examination.

The time limit for the department to seek leave from the Appeal Committee to take the matter to the CFA has yet to expire. Is it conceivable that the department would take this inhumane step? Is this trial by ordeal starting in 2002 not long enough?
     The Minister for Food and Health bears ultimate responsibility for the department. Is she aware of this outrage?

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