Chung Yin Ting v. Chan Miranda

Case No.HCPI 1008/2015[2019] HKCFI 270

Court

High Court CFI

Date15 Feb 2019

Judge—

Case Document

100%Judiciary

HCPI 1008/2015

[2019] HKCFI 270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1008 OF 2015

________________________

BETWEEN
	CHUNG YIN TING	Plaintiff
	and
	CHAN MIRANDA	Defendant

________________________

Before: Master Leong in Court

Date of Hearing: 7 November 2017, 6-8 November 2018

Date of Plaintiff’s closing submissions: 3 December 2018

Date of Defendant’s submissions: 22 November 2018

Date of Judgment: 15 February 2019

_________________________________

ASSESSMENT OF DAMAGES

_________________________________

1.This is an assessment of damages as a result of a road traffic accident (“the Accident”) on 14 September 2011.

BACKGROUND

2.The plaintiff was a passenger who was asleep in a car driven by her friend. Her friend had stopped the car in traffic but on moving off, reverse gear was engaged and the car hit a mini van which was 2 meters behind the car (according to the mini van driver).

3.The plaintiff attended A&E Department of United Christian Hospital (“AED”) complaining of neck pain. Tenderness of the neck was noted on examination but neurological examination and cervical X-ray were normal. She was discharged with medication and sick leave was granted from 14 to 20 September 2011.

4.The plaintiff re-attended AED on 19 September 2011 for neck pain and mood problem. Tenderness of the neck was noted. Cervical x- ray was repeated and again found to be normal. She was referred to the psychiatrist who assessed her and diagnosed “Acute Stress Reaction”. She was referred for psychiatric out-patient clinic but no psychiatric medication was prescribed.

5.The plaintiff then consulted a private orthopaedics specialist, Dr Jack Wong (“Dr Wong”), on 22 September 2011 with various complaints including “pain over left side of neck, back of the head, lower back, and 3rd and 4th fingers of the right side”, as well as cramps of her toes of right foot. Dr Wong found “mild pain, tenderness and swelling” over the neck and lower back but there was no neurological deficit. No abnormality was detected in her right upper limb.

6.Dr Wong requested a MRI scan (“the First MRI”) and treated her with medications, injection and physiotherapy. She attended Dr Wong until 19 November 2011 for a total of 10 consultations and 17 sessions of physiotherapy. Dr Wong granted continuous sick leave from 22 to 30 September 2011, and then intermittently between 4 October 2011 and 19 November 2011 (only on the days she attended consultation or physiotherapy).

7.Despite this treatment, the plaintiff complained of persistent pain so Dr Wong referred her to the Orthopaedics Outpatient clinic of Queen Elizabeth Hospital.

8.The plaintiff was also under the care of the Psychiatric Outpatient clinic of Kowloon Hospital from November 2011.

9.The plaintiff was involved in another road traffic accident whilst on tour in China on 28 December 2011 (“the Second Accident”). She was passenger on a coach which was involved in a head-on collision with a car. According to the Joint Psychiatric Expert Report (the “Psych JMR”), the car flipped twice before landing. The coach hit several trees and posts before coming to a stop and there was a fatality in the car. According to the plaintiff, after the Second Accident, she only needed to apply some ointment to her left hand and right thigh and did not seek any medical treatment.

10.The plaintiff attended the Clinical Psychology Department of Kowloon Hospital on 30 December 2011.

11.The plaintiff first attended the Orthoapedics Outpatient Clinic of Queen Elizabeth Hospital (QEH) on 21 June 2012. Another MRI scan was performed on 24 December 2012 (“the Second MRI”) which showed “C5/6 left posterolateral prolapse with mild cord indentation” (according to the QEH Orthopaedics medical report dated 28 December 2016 (Page 248 of Main Trial Bundle)). An operation of C5/6 anterior spinal fusion was performed on 24 April 2013.

12.After the operation, the plaintiff still complained of persistent bilateral upper limb discomfort, pain over left neck, scapula and anterior upper chest wall and hand numbness etc.

13.The plaintiff continued to be under the care of the psychiatrists and clinical psychologists of Kowloon Hospital and her diagnosis was revised to “Post-traumatic Stress Disorder”.

Orthopaedics experts’ opinion

14.This case was heard on 6 November 2017 but it was then clear that there were substantial disputes in the opinion between the parties’ respective Orthopaedic experts and that oral evidence from experts was required. Thus, the hearing was adjourned so that the Orthopaedics experts could be called. The court also directed that the experts should submit any medical literature in support for their respective opinion.

15.The experts appeared to be in agreement that the plaintiff’s current (post-operative) condition could not be explained by neurology or due to any neurological deficit. However, they appeared to agree on little else.

16.The main disputes could be summarized as follows: whether the plaintiff suffered from pre-existing spinal degeneration or whether the single accident caused all the alleged injuries, whether there was significant deteriorations in the findings between the First MRI and Second MRI, whether neurological deficit was found by the treating doctors as early as “a few days after the accident” or whether it was first noted (or suspected) on 1 November 2012 (some 14 months after the Accident and 11 months after the Second Accident), whether the Second Accident contributed to the alleged injuries, and whether the subsequent operation was indicated at all.

17.In short, the plaintiff’s expert, Dr Law Yee Cheung, Wally (“Dr Law”), was of the view that the plaintiff had a whiplash injury during the Accident but started to have neurological symptoms within a few days. The injury on her cervical discs were seen in First MRI. The Second Accident did not cause any further injuries because the plaintiff did not see the need to consult any doctor and thus there was no documentation of any clinical findings related to the Second Accident. Subsequently, the Orthopaedics surgeons at QEH when she was noted to display objective evidence of neurological deficit on physical examination and the Second MRI showed significant deterioration including C5/6 disc prolapse causing left C6 nerve root compression. These were, in his opinion, compatible with post-traumatic disc degeneration after a single accident. The operation was therefore properly indicated.

18.The defendant’s expert, Dr Lam Kwong Chin (“Dr Lam”), was of the view that the plaintiff suffered a neck sprain with soft tissue involvement during the Accident. No neurological deficit was found by treating doctors. The First MRI findings showed degeneration changes. The Second Accident might have aggravated her condition. Even when neurological deficit was first suspected on 1 November 2012, the physical tests performed yielded inconsistent results. The Second MRI did not show significant deterioration. Thus the operation might not be well indicated.

19.However, when giving evidence in court, Dr Law conceded some crucial points from his original position.

20.Firstly, under cross examination by Mr CK Wong, the defendant’s counsel, Dr Law admitted that he has made a mistake in opining that the plaintiff “started to have neurological symptoms a few days after” the Accident.

21.Dr Law apparently obtained that from Dr Wong’s report. Dr Law thought that Dr Wong recorded a complaint of numbness in the left fingers but, as pointed out by Mr CK Wong, Dr Wong actually recorded a complaint of “pain in the right 3rd and 4th finger”.

22.This is a crucial mistake because the crux of this case is whether there was a disc protrusion at C5/6 level causing left C6 spinal nerve root compression.

23.Thus this was a “double mistake”, Dr Law got the side wrong and he also got the nature of complaint wrong. Any right-sided symptoms would clearly not be related to an injury of a left spinal nerve. Further, pain (unlike numbness) would not necessarily be caused by neurological deficit (as Dr Law agreed in court).

24.More importantly, as pointed out by Mr CK Wong, Dr Wong was specifically looking for neurological deficit because he stated in his report repeatedly “no neurological deficit” (Page 238 of the Trial Bundle). It was of course Dr Wong, the treating doctor, who examined the plaintiff at the time. Dr Law did not dispute this and conceded that he was mistaken.

25.With Dr Law’s concession, it was clear that there was no medical evidence that the plaintiff suffered from any neurological deficit all along until 1 November 2012 (when suspicion of such was raised by the QEH doctor). But this was some 14 months after the Accident and 11 months after the Second Accident.

26.Further, Dr Law’s original opinion was that the findings of the First MRI was not caused by degeneration but by the Accident. This was largely based upon the following arguments: that degeneration was rare in people of the plaintiff’s relatively young age (33 years), that there was one case study showing that a single accident could cause severe disc protrusion (under “Images in Clinical Medicine” in the New England Journal of Medicine 2 February 2012 under the title “Post-traumatic Herniated Cervical Disc”), and that there were also 4 case studies showing late presentation of Lhermitte’s sign in spinal cord injury (“Delayed onset of Lhermitte’s sign following head and/or neck injuries” J. Neurosurg March 1984).

27.However, Dr Law has also “walked back” from this position in court. He opined that it should take about 12 weeks for traumatic injury to cause the “mild dehydration” of the disc as seen on the First MRI. As the First MRI was taken only about 1 week after the First Accident, Dr Law conceded that there was probably pre-existing degeneration.

28.In the Orthopaedics JMR, Dr Law also gave a rather mystifying opinion concerning the plaintiff’s current condition (page 278 of the Trial Bundle). On one hand, he found that the plaintiff’s current complaint of diffuse numbness in her left hand did not correspond with any particular dermatome. On the other hand, he stated that: “It is in my opinion that such physical symptoms are genuine.”

29.Dr Law appeared to base that opinion on the fact that the complaint raised by the plaintiff during the experts’ assessment was “compatible with those recorded in...QEH orthopaedics clinic” and, as such, the plaintiff “appears quite consistent in her representation of symptoms”.

30.It is clearly undesirable for an expert to play advocate in trying to decide the factual truth.

31.Whilst a witness being “consistent” when giving evidence is often valued as being truthful, this may only apply in court when the witness is under cross-examination. Untruthful witnesses are often tempted to change their evidence because their “lies” have been exposed under skillful cross-examination, and, of course, being “consistent” simply means that the evidence has stood up to the scrutiny of cross-examination.

32.The situation is entirely different in the setting of a doctor’s consultation. Medical management is based upon establishing a doctor - patient trust so a doctor would not be expected to (and indeed not trained to) cross-examine or challenge his patient. Thus, being “consistent” in complaints made by a patient to his doctors might simply mean that he was repeating the same lies to all the doctors.

33.Thus Dr Law’s opinion in this aspect would not be accepted by the court. Dr Law in fact conceded that the truthfulness of such “subjective” complaints unsupported by “objective” findings (like the anatomical distribution of nerve supply, or dermatone) should be a matter of fact finding by the court.

34.Dr Lam, the defendant’s expert, was helpful in explaining why he thought that the “objective” findings by the QEH doctors were not consistent. He explained that this case should concern with a suspicion of radiculopathy, that is, a compression of a spinal nerve root (left C6) and not a myelopathy, that is, a compression of the spinal cord. Yet, the plaintiff appeared to display inconsistency in examinations for both myelopathy and radiculopathy. For example, the “Barber Chair sign” was found to be positive should signify myelopathy, but yet the other sign for this, the Hoffman sign, was negative.

35.The test for radiculopathy, the Spurling sign, was also negative. However, during one consultation, the power of the muscles supplied by the left T1 spinal nerve was found to be at level 3. This meant that she could not even lift her fingers against gravity! However, this concerned the left T1 spinal nerve and not the left C6 spinal nerve (which was the nerve suspected to be compressed on the MRI scan). More surprisingly, there was no records of such findings again in subsequent consultations. It was bizarre that such a severe and serious neurological deficit would disappear suddenly.

36.As for the medical papers submitted by Dr Law, Dr Lam pointed out that the “Delayed onset” paper was published back in 1984 at a time when MRI scans were not widely used. Further, these cases concerned with myelopathy which was not relevant in this case (which concerned with radiculopathy). More importantly, the patients in these case studies all had complete spontaneous recovery without surgery and the article illustrated how unreliable this clinical test (Lhermitte’s sign, also called the “Barber Chair’s sign”) might be. Indeed, one sign alone should never be relied upon in making a diagnosis and deciding on treatment. As for the “Cervical disc herniation” case report, this would have been one case documenting what must have been quite a severe trauma with the patient developing sudden transient tetraplegia. The current case is very different.

37.Dr Lam is clearly correct in that a doctor should look at the whole clinical picture including MRI findings, physical examinations and all the clinical tests etc before deciding on management of a patient.

38.I am therefore persuaded by Dr Lam’s opinion that, even when the suspicion of neurological deficits were suspected by the QEH doctors on and after 1 November 2012, such findings were inconsistent. His opinion was that the MRI and the clinical findings did not match. Of course, Dr Law and Dr Lam still held different opinions on the findings on the MRIs.

39.Nevertheless, even assuming that these neurological deficits were true and consistent, Dr Lam opined that for such to appear at this late stage (some 15 months after the First Accident and 11 months after the Second Accident) in a patient with pre-existing degeneration (as agreed by both experts) meant that the neurological deficit were more likely to be caused by natural progression of the degeneration.

The evidence from the plaintiff

40.One of the most unusual feature in this case is that the plaintiff last saw an orthopaedics surgeon, Dr Wong, on 19 November 2011 and did not see another until 21 June 2012 (at the QEH Orthopaedics Outpatient clinic). During the period of some 7 months, she was only seeing psychiatrist and clinical psychologist.

41.During all this time, the plaintiff alleged that she was suffering from, amongst others, persistent and severe neck pain. She told the court that this was so painful that she could not sleep around 2-3 nights a week.

42.However, the plaintiff claimed that Dr Wong only prescribed 5 days of medications at the last consultation. She further claimed that the medication Lyrica prescribed by Dr Wong helped her pain and sleep but by December, she only had 3 or 4 tablets left.

43.When asked, the plaintiff claimed that when Lyrica ran out, she had no money to see Dr Wong again so she was applying an ointment (which only relieved the pain for 5 to 6 minutes), and she was also using (what I understand as) a “TENS” machine (which is a machine that sent out electric pulses to pads which could be placed on various parts of the body). When asked further, she claimed that she had also sought Chinese bonesetter and acupuncture treatment etc. None of these, of course, cured her of her persistent pain.

44.It was then asked whether she asked her psychiatrist for painkillers when her supply ran out, the plaintiff initially said that she did.

45.Mr CK Wong then put to her that the psychiatric records did not record her making any complaint of neck pain causing insomnia, and did not record any request for painkillers.

46.The plaintiff then said she did not ask the psychiatrist.

47.And from that, she again changed her story and the “third version” of the story was that she did ask, but the psychiatrist said they did not have Lyrica and asked her to get them herself, and only prescribed sleeping tablets to her.

48.I would find it incredible that if a patient informed a doctor (a psychiatrist is, of course, a doctor) that he suffered from pain severe enough to cause frequent insomnia, the doctor would only prescribed sleeping tablets instead of pain killers. This would be entirely illogical because it clearly did not treat the source of the problem, that is, the pain.

49.But then the plaintiff told the court that she was told by a pastor that if she fell asleep, she would feel no pain.

50.It is clearly a bizarre explanation: why would anyone need a pastor to tell her about what she could or could not feel personally?

51.The plaintiff then claimed that she felt very bad. She was angry and distressed that the psychiatrist did not listen to her and did not understand her pain and suffering.

52.It was then put to her as to why she bothered to return to see the psychiatrist under the circumstances. The plaintiff replied that she had no choice.

53.Mr CK Wong asked whether she had thought of going to AED for medications, the plaintiff explained that she needed to wait for several hours at AED so it was not easy. The plaintiff added that she was not a chronic disease patient so did not know the medical system, so she just kept on using her ointment and “TENS” machine.

54.Such answers were clearly illogical: the court was expected to believe that a sufferer of chronic pain would rather suffer regular sleepless nights for many months than to wait a few hours at AED seeking effective painkillers.

55.When challenged that she never herself bought any painkillers like Panadol, she at first said that these were too expensive and she could not afford them.

56.But then she changed her story and said she had a large supply of Panadol prescribed by Dr Wong, and explained that when she told the court about Dr Wong’s “5 days of medication”, she meant only prescription for Lyrica. The plaintiff claimed she “forgot” to tell the court about the Panadol.

57.Mr CK Wong also put to the plaintiff that despite the psychiatrist apparently not listening to complaints about neck pain and lack of effective painkillers, they appeared to comply with her requests for sick leave certificates.

58.The plaintiff initially denied that she ever requested for sick leave certificates.

59.Mr CK Wong then put to her that on one occasion, the doctor initially only allowed one day of sick leave (on the day of consultation) but then recorded that the plaintiff requested 3 weeks of sick leave which he granted.

60.The plaintiff then changed her stance and agreed that she did request for sick leave, explaining that she now “understood the question”.

61.It would seem that, after several changes of her story, the plaintiff’s case was as follows: for some 7 months (from 19 November 2011 to 21 June 2012), she continued to wait patiently for the QEH Orthopaedics appointment whilst continuing to suffer from severe neck pain which regularly interfered with her sleep. None of her own treatment helped to cure this pain. She continued to see her psychiatrist who refused to give her effective painkillers despite her requests and complaints of neck pain but yet had, on her request, continued to grant her sick leaves. Further, the plaintiff did not consult any other doctors for treatment of this severe pain during this period because she “did not know the medical system”.

62.This is simply absurd.

63.As I have stated several times before, although the feeling of pain may be subjective, “pain behavior” can certainly be tested: a reasonable patient would be expected to do his utmost to cure his pain, especially pain severe enough to cause sleepless nights. The last thing one would expect a reasonable patient to do was to return to see the same doctors and being prescribed the same medications which all along failed to cure such pain whilst at the same time, obtaining sick leave certificates from the doctor repeatedly.

64.Such behaviors raise a strong suspicion that the patient was more interested in seeking sick leaves than in curing any illnesses. And the inference must therefore be that the patient could not be suffering from any significant symptom: she must have largely recovered and any residual symptoms would not be anything she was concerned about.

65.I therefore agree with Dr Lam’s opinion that the plaintiff had suffered a neck sprain with soft tissue involvement and no neurological deficit, and Dr Wong must have done a good job because the plaintiff has largely if not fully recovered around the time of the last consultation on 19 November 2011. Her behaviour subsequent to this date showed that she was far more concerned with seeking sick leaves than for any cure of her alleged severe symptoms

66.In view of this, we need not be concerned with any speculation as to possible injuries caused by the Second Accident (of course, the fact that the plaintiff did not see a doctor after the Second Accident might be due to many reasons other than that “she was not injured”, since she also did not see a doctor for effective pain management during the 7 months when she claimed that she had severe symptoms!), the interpretation of the MRIs or the indication of the operation.

67.Further, I accept that the neurological deficit signs were inconsistent and had presented some 15 months after the Accident. Even if these were real, it was likely that this was caused by natural progression of degeneration. Although degeneration is uncommon statistically in younger patients, it must have occurred in this case (assuming that the neurological deficits were indeed real).

Psychiatric expert opinion

68.The psychiatric experts were not called because there was no significant disputes: both agreed that the plaintiff had “Adjustment Disorder with Mixed Anxiety and Depressed Mood” with some symptoms of “Post-traumatic Stress Disorder” but not satisfying the diagnostic criteria of such.

69.Nevertheless, given that the court has found that the plaintiff is not a credible witness, much of the psychiatric experts’ opinions must be viewed with some caution: much, if not all, of usual psychiatric diagnostic process is based on “subjective” complaints by the patient.

70.There were dispute in the role that the Second Accident played in causation. Dr Jimmy Dong (“Dr Dong”) opined that “her mental state was not affected” by the Second Accident but Dr Benjamin Lai (“Dr Lai”) opined that any symptoms of PSTD “would be more likely be related to the Second Accident”.

71.I think that Dr Dong’s opinion flies in the face of common sense. According to him, an accident caused by a car reversing 2 metres and hitting a van have caused all the plaintiff’s psychiatric illness, whilst witnessing a fatal head-on collision as a coach passenger seeing the oncoming car flipping twice, with the coach losing control and hitting trees and posts for 1 – 2 minutes (and feeling “life and death” all this time) did not contribute to any of her psychiatric illness!

72.Nevertheless, Dr Dong opined under “Prognosis” that “the recovery of Adjustment Disorder depends largely on the resolution of the stressors. In Ms Chung’s case, this is the resolution of her physical injuries from the accident. Without such, the complete recovery of her mental condition would be difficult.” (see Page 304 to 305 of the Trial Bundle)

73.As the court finds that the plaintiff has recovered significantly if not fully from her physical injuries (caused by the Accident) by 19 November 2011, even with Dr Dong’s opinion, she would have recovered from her Adjustment Disorder by then.

PSLA

74.I find that the plaintiff has suffered from a neck sprain with soft tissue injury (or a “whiplash” injury) with no neurological deficit and with perhaps some Adjustment Disorder. She had recovered significantly if not fully in about 2 months.

75.As such, the plaintiff’s claim for HK$350,000 (revised to HK$400,000 in the Opening Submission) is clearly excessive.

76.I considered that an award of HK$100,000 is reasonable under the circumstances after considering various cases including Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited (HCPI 473/2006) and Wong Kwong San v Lee Choi Wan (HCPI 700/2010) and Li Ting Fai v Woo Chi Keung (DCPI 807/2007).

PRE-TRIAL LOSS OF EARNINGS & MPF

77.It is trite that the court is not bound by mere issuance of sick leave certificates (Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited (HCPI 473/2006)).

78.As I find that the plaintiff has largely if not fully recovered by 19 November 2011, I would award loss of earnings from 14 September to 19 November 2011, or a total of 66 days. In fact, this would have been generous given that, by granting sick leave only on the day of attendance, Dr Wong must have been of the view that she had recovered and did not need sick leave in the following days. Dr Wong was doing that even before the last day of consultation on 19 November 2011.

79.There is no dispute that the plaintiff earned an average income of HK$10,806.25 per month at the time of the Accident.

80.Thus the award under this head should be HK$10,806.25/30 x 66 = HK$23,773.75

POST‑TRIAL LOSS OF EARNINGS & MPF

81.There should be no award under this head of claim. Any sick leave obtained for any subsequent findings like neurological deficit, psychiatric problems and the cervical spine operation, whether properly indicated or not, were not caused by the Accident.

LOSS OF EARNING CAPACITY

82.The plaintiff has recovered largely if not fully from the Accident. I am not satisfied that there is any convincing evidence that the Accident has caused any of loss of earning capacity or disadvantage in the open labour market so there should be no award under this head of claim.

SPECIAL DAMAGES

83.The parties have agreed that the award under this head of claim which past medical, travel and other expenses should be HK$30,000. I will not disturb this agreement.

SUMMARY

84.In summary, I would award the following: -

HK$

PSLA
100,000.00

Pre‑Trial Loss of Earnings
23,773.75

Loss of Earnings Capacity
0

Post‑Trial Loss of Earnings
0

Special Damages
30,000

Total
153,773.75
(plus interest)

_____________

85.Interest will be awarded at 2% per annum on general damages from date of service of the writ and half interest rate on special damages from the date of the Accident.

COSTS

86.I would also give an order nisi for the costs of the action to be paid by the defendant to the plaintiff to be taxed if not agreed in the District Court scale with certificate for counsel. The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.