Cheung Sau Lin v. Tsui Wah Efford Management Ltd
Read the full judgment text of HCPI 505/2017 on BabelCite. This High Court CFI judgment was delivered on 9 August 2019.
1. An accident occurred to the plaintiff on 22 August 2014 while she was employed by the defendant (“Accident”). By consent, interlocutory judgment was entered against the defendant on 16 June 2017. This is the assessment of damages to be awarded to the plaintiff for personal injuries sustained as a result of the Accident.
Cited by 9 cases · Cites 11 cases
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HCPI 505/2017 [2019] HKCFI 1960 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 505 OF 2017 _________________________
Before: Master Chow of the High Court (In Court) Date of Hearing: 24-26 June 2019 Date of Judgment: 9 August 2019 __________________________ ASSESSMENT OF DAMAGES __________________________ 1.An accident occurred to the plaintiff on 22 August 2014 while she was employed by the defendant (“Accident”). By consent, interlocutory judgment was entered against the defendant on 16 June 2017. This is the assessment of damages to be awarded to the plaintiff for personal injuries sustained as a result of the Accident. 2.The plaintiff was born on 4 February 1968 and was 46 years old at the time of the Accident. She was born in China and had completed primary school education. She is married with three children and she lives with her husband and their children. The plaintiff was working as a waitress at the Tsui Wah Restaurant of the defendant located at Shop No. 101, 1/F, Fu Tung Plaza, 6 Fu Tung Street, Tung Chung, New Territories (“Workplace”) at the time of the Accident and she had worked for the defendant since March 2014. 3.A witness statement was made by the plaintiff on 20 December 2017. This was adopted by her at the hearing as evidence in chief. 劉婉華 (“Madam Lau”), the Senior Human Resources Manager of the defendant at the time of the Accident, appeared as witness on behalf of the defendant and she adopted the witness statement she made on 31 December 2017 in relation to the plaintiff’s connected claim for employees’ compensation in DCEC 2438/2014 (“DCEC case”) as her evidence in chief. Madam Lau used to work for the defendant but she has since left their employment. The testimony of Madam Lau mainly deals with the pre-accident salary of the plaintiff. 4.Other evidence takes the form of two MRI reports and the medical records of the treatments and therapies received by the plaintiff in the public and private sectors. In addition, there are two joint medical reports by Dr Tio Man Kwun Peter and Dr Chun Siu Yeung, orthropaedics experts appointed by the plaintiff and the defendant respectively, as well as two joint psychiatric reports by Dr Henry W M Kwok and Dr Peter W T Yu, psychiatry experts appointed by the plaintiff and the defendant respectively. THE ACCIDENT 5.On 22 August 2014, the plaintiff tripped on a metal frame or tube on the floor at the entrance of the kitchen at the Workplace. She fell forward and landed on both knees and her right hand. The plaintiff suffered from right hand pain and pain on both knees. She rested at the Workplace for the rest of the day and did not seek medical attention or treatment on that day. The plaintiff went home after work hoping that her pain would subside after a night’s rest. MEDICAL TREATMENTS 6.An attendance record dated 11 October 2017 issued by North Lantau Hospital (“NLH”) is in the hearing bundle. As at the date of this document, the plaintiff has sought treatment from NLH on numerous occasions, including visiting its Department of Accident and Emergency (“A&E”) on 46 occasions, its Department of Orthopaedics and Traumatology (“OTD”) on 8 occasions, its Department of Physiotherapy (“PD”) on 72 occasions, its Department of Occupational Therapy (OD”) on 146 occasions, and its Department of Psychiatry Unit (“PsyD”) on 13 occasions. The plaintiff has also sought treatment from Princess Margaret Hospital (“PMH”) and Chinese medical practitioners on a number of occasions. 7.The plaintiff also attended the Psychosomatic Clinic of Kwai Chung Hospital on 17 November 2015 for depression. She was diagnosed to have adjustment disorder, depressive reaction. Her treatment by the psychiatrists there is still continuing. 8.The plaintiff first attended A&E for the injury she sustained in the Accident on 23 August 2014. Physical examination revealed right wrist tenderness and mild bruising on both knees. There was no joint effusion or laxity noted over her knees. X-ray of right wrist was done and found to be unremarkable. The provisional diagnosis was bilateral knees and right wrist injury. The plaintiff was given analgesic and sick leave. In the various medical reports of the treating doctors of different departments and of different hospitals, the findings of no swelling or deformity of the right wrist, and no inflammation, no effusion, full or almost full ranges of movement of both knees, no ligamentous laxity and negative Lachman tests had been consistent. 9.The plaintiff has had three rounds of physiotherapy treatment. She was first referred to physiotherapy by A&E on 13 September 2014 and treatment commenced on 6 January 2015 at NLH. The plaintiff received 30 treatment sessions that included electrotherapy, mobilization and strengthening exercises of bilateral knee. She was discharged on 23 December 2015 due to static condition, but was referred to physiotherapy a second time by the OTD on 8 January 2016. Treatment started again on 16 February 2016 and she had a total of 26 sessions of treatment that included pain relief and grip power strengthening exercise of the right hand. The plaintiff was discharged on 7 November 2016 due to her condition having plateaued. The third time the plaintiff was referred to physiotherapy was on 28 December 2016 by OTD for bilateral knee pain. She was also referred to physiotherapy by the Anesthesia Department of PMH for chronic wrist and knee pain on 5 September 2017. As of 29 September 2017, the date of the medical report of the PD, the plaintiff was still under the care of the physiotherapists and had by then received 18 sessions of treatment that included electrotherapy, heat treatment, balance training, wrist pain management and strengthening exercise. 10.The reports of the OD show that the plaintiff was first referred to occupational therapy by the General Out-patient Clinic of NLH for work rehabilitation on 19 November 2014 and for a second time by A&E on 18 December 2015. During the therapy sessions, interventions included lower limb functional training, work hardening program and work rehabilitation. At least 4 work rehabilitation assessments had been carried out by the OD, on 4 January 2016, 26 February 2016, 20 December 2016 and 13 June 2017. Every time it was found that the capacity of the plaintiff did not match her work demand, with significant degree of limitation. 11.Apart from the doctors in the public sector, the plaintiff also consulted Dr Lau Sing Ki Kenric, a private orthopaedic doctor from 16 February 2015 to 11 May 2015. Dr Lau suggested surgery and his notes recorded the plaintiff’s refusal to have surgery in the private sector. 12.The plaintiff has MRI done twice, first in Mainland China and later in Hong Kong. The earlier one was carried out in March 2015 while the later one was carried out in August 2015. The first MRI showed bilateral knees medial meniscus posterior horn and lateral meniscus anterior horn grade 2 signal change. The radiologist noted the need of clinical correlation for such signals, and the impression that the plaintiff had bilateral knees osteoarthritis. No abnormal signals for the ligaments or the soft tissues were detected. The later MRI revealed low-grade partial tear in the anterior cruciate ligaments and the upper insertions of both the medial and the lateral collateral ligaments, with no other significant abnormality in the right knee and no significant osteochondral lesion. 13.The plaintiff was referred by the Department of Family Medicine of NTH to the Department of Psychiatry on 6 June 2015 for low mood, inability to sleep and her negative thoughts about her pain, finance and other situations. In a letter from a doctor of the Department of Medicine of NTH to urge for the advancement of her psychiatric appointment, other symptoms were mentioned, including frequent crying and vague suicidal idea. The plaintiff was first seen by a psychiatrist on 17 November 2015 and the medical records show that such consultation is still continuing. EXPERTS’ REPORTS 14.The plaintiff was examined by Dr Chun and Dr Tio on 29 September 2017. Two reports were prepared by these experts, one dated 10 October 2017 (“1st JMR”) and the other dated 11 October 2018 (“2nd JMR”), collectively referred to as the “JMRs”. These two experts have gone through the records kept by the treating doctors and therapists, and the history of the plaintiff having consulted various doctors, including psychiatrist and clinical psychologists, as well as attended physiotherapy, occupational therapy and acupuncture. They had also considered the reports of the two MRI examinations undergone by the plaintiff. 15.The then current complaints of the plaintiff were noted by the orthropaedics experts in the JMRs, including bilateral knee pain that was continuous and nonstop with intensity fluctuating from 6-8/10, anterior thigh pain down to the upper leg bilaterally that occurred intermittently and triggered by factors that the plaintiff did not know, ulnar half of the right palm pain, also continuous and nonstop, which was a numbing pain from grade 1-2 to grade 3-4, with pain increasing if she was not careful in pressing the palm or when wringing a towel. The plaintiff was using a stick to walk which she said was instructed by physiotherapists. As for her mood, the plaintiff was feeling very sad or bad and suffered from insomnia 5 times a week with nightmares. Apart from the pain, the plaintiff was worried about whether she could work and how much longer she had to consult doctors and the money she had to spend for the purpose. 16.The reports of the treating doctors and therapists of the plaintiff, as well as the results of the MRIs, are set out in the JMRs. The two orthopedics experts also recorded their findings upon the physical examination conducted. The two experts agreed on those findings. They then set out their respective opinions in terms of diagnosis, causation, prognosis, effect on ability of work and the sick leave that should be granted. I shall go into these in greater detail below. 17.The plaintiff was jointly examined by the two psychiatry experts on 19 October 2017. Two reports were prepared, one dated 6 April 2018 and the other dated 29 October 2018, collectively referred to as the “JPRs”. They set out the physical and mental symptoms reported by the plaintiff, the treatments received by her, and the gist of the 1st JMR. 18.At the time of the joint examination by the psychiatry experts, the complaints of the plaintiff included persistent pain over both knees and right hand and the need to take analgesics, more absent-mindedness, low mood and irritable mood which was affected by pain and sleep problem, ability to sleep for about 4 hours only, with improvement after taking psychiatric medication, nightmares had become less frightening. In addition, the sex life and social life of the plaintiff had been affected and she had not resumed working. 19.The psychiatry experts agreed that the plaintiff had adjustment disorder with depressed mood and there were no pre-existing conditions. They however differed greatly on diagnosis, causation, degree of disability, prognosis, further treatment, work capacity and appropriate sick leave. I will go into greater detail of the contents of the JPRs in the discussions below. WORK SINCE THE ACCIDENT 20.The certificates produced by the plaintiff show that she had been given uninterrupted sick leave from 24 August 2014 to 2 April 2019, about 4½years. Except for having tried to return to work with the defendant for one day, the plaintiff had not worked during the entire period. She has also not made any effort in finding work all through this period and up to trial, whether on a full-time or part-time basis. It is clearly the view of the plaintiff that the fact that she was granted sick leave means that she had been unfit to work because of her physical and/or mental conditions. 21.In addition, when cross-examined, the plaintiff has repeatedly mentioned her belief that no one would employ someone that needs to walk with the aid of a stick or has such medical or mental conditions as hers. She also referred to her limited education and lack of language skills in English and Putonghua as being the reasons for her perceived inability to find any job. She had no answer to offer when the fact that even more severely handicapped people are able to find work was put to her, and reiterated that she felt being stared at by people for walking with a stick. When her attention was drawn to the opinion of all the orthopaedics and psychiatry experts that she would be able to work, the plaintiff said she did not understand how they carried out their assessment. EMPLOYEES’ COMPENSATION CASE 22.The DCEC case was dismissed by HH Harold Leung on 7 August 2018. The learned judge found, inter alia, that there was no reasonable cause for the failure of the plaintiff to undergo an examination by a medical practitioner named by the defendant under section 16 of the Employees’ Compensation Ordinance. There has been no appeal of the decision in the DCEC case. There is no dispute that the plaintiff had received advance payment in the sum of HK$33,852 from the defendant before the dismissal of her employees’ compensation claim. EXTENT OF THE INJURY 23.At the hearing, the plaintiff walked with the aid of a stick. She confirmed that her conditions were the same as when she was examined by the two orthopaedics experts, that she had continuous nonstop pain in both her knees and her right hand. She disagrees with the opinions of the experts and the medical records where they are not supportive of her case, sometimes accusing the people involved to have framed her. In her view, the fact that the treating doctors continue to ask her to go back for consultation shows that she is still suffering from those symptoms. 24.Both orthopaedics experts agreed that the plaintiff suffered from contusion of both knees and right wrist and there was no fracture of bones, but otherwise their views on diagnosis, causation and prognosis are quite different. In gist, Dr Chun took the view that the plaintiff had reached maximal medical improvement, that she had long recovered from the injury (at most within 6 weeks) and had since been exaggerating her symptoms. To him, the non-specific degenerative changes are not consistent with the mechanism of the injury, but are part and parcel of the osteoarthritic knee change, something developmental and pre-existing, and there is a strong possibility that the plaintiff will have knee pain in association with the osteoarthritic features of the knees at any time in any event. 25.Dr Tio opined that the symptoms of the plaintiff could be caused partially by pre-existing degeneration and partially by the Accident and it would not be possible to attribute the exact contribution from those conditions. However, referring to her ability to carry on her duty without any problem before the injury, Dr Tio said the plaintiff should not have developed her current knee symptoms in 10 years’ time if there was not such an accident. Given that the contribution of the two possible causes cannot be worked out, Dr Tio had actually provided no scientific basis for this estimate of 10 years. 26.In addition to pointing out that there was no objective evidence of ligamental or meniscal injury, to illustrate his view about exaggeration, Dr Chun cited many examples of features presented by the plaintiff during the examination which he found to be inconsistent with the normal course of post contusion injury. Dr Tio responded on one such example by saying that the feature could be genuine and that is the keeping of the knees flexed at 40 degrees bilaterally on examination couch and during x-ray. I share Dr Chun’s doubt on the genuineness of such feature. The knees were at rest or near at rest when the plaintiff was examined by the orthopaedics experts and she kept them bending at 40 degrees, but she was able to walk before me without any bending of knees or any contortion that would have been brought about by the pain in her knees while walking. 27.Rather than pointing to objective medical findings that can explain the complaints of the plaintiff, Dr Tio was quite prepared to accept her physical conditions as per her complaints. For instance, Dr Tio gave his opinion that most patients with similar injuries could present with intermittent residual pain, stiffness, weakness and reduced endurance. That cannot however explain the continuous nonstop pain complained of. Similarly, the opinion of Dr Tio that the plaintiff had reached a state of maximal medical improvement, and only residual pain in her knees and on and off pain is expected in her right wrist does not support a case of the plaintiff still having nonstop pain of the magnitude she described. 28.The view of Dr Tio about the ability of the plaintiff to resume work and the appropriate sick leave period is also relevant, as that goes directly against the subjective complaints of the plaintiff of chronic pain. Dr Tio opined that the plaintiff would be able to resume light duty after a period of 3 months purely in terms of her orthopaedic conditions. After such period of light duty, the plaintiff might be able to gradually resume her pre-injury duty as a waitress though with reduced capacity and efficiency, with a need to take intermittent breaks of 15 minutes after each 2 hours’ work. With the pain that the plaintiff said she has, I cannot see how she can work as a waitress even with the recommended breaks and rest. Hence, there is no substantive explanation from Dr Tio for the subjective complaints of the plaintiff about continuous nonstop pain of both knees and the right hand. 29.The 2nd JMR dealt mainly with the results of the two MRIs done by the plaintiff of her knees. On the discrepancies noted in the two reports, the two orthopaedics reports agreed that false positive and false negative results from MRI studies are not uncommon, and variations can also arise because of interpretations by different radiologists as well as different machines. 30.On the assessment of the MRIs results, I find the opinion of Dr Chun to be helpful. Not only did he identify the discrepancies between the two sets of results, he also provided an analysis of how these changes can be accounted for from a medical point of view, in addition to the possibility of variations being caused by different machines and interpretations by different radiologists. He mentioned that the missing of change of signal intensity, and hence the indication of injury to the 4 ligaments (anterior and posterior cruciate, medial and lateral collateral ligaments), is unlikely. Hence, the absence of signal change with all the 4 ligaments as observed in the first MRI means that there was no sprain or partial tear. The signal change detected in the second MRI on the anterior cruciate ligament and collateral ligaments, if indeed real, could not therefore have been caused by the Accident. 31.There are two other signal changes at the anterior and posterior horns of the menisci detected in the earlier MRI but not in the later MRI. Dr Chun explained that, if the changes detected were real, they were due to myxoid degeneration and not a meniscal tear. 32.Dr Tio did not carry out any similar exercise. According to him, one could only be confident to tell from the MRIs that there was no significant ligament tear with some meniscal degeneration that was compatible to the age of the plaintiff. He then stated that it would be more likely that her current knee problems should be related to the accident rather than due to mild degree of pre-existing degeneration which could be asymptomatic. 33.The detection of signal change showing ligament tear in the later MRI is of some significance. That is an objective finding that may pertain to the knee pain of the plaintiff, but Dr Tio did not address the matter specifically. The inorganic causes mentioned in paragraph 29 above comprise all the explanation he gave, despite the view of Dr Chun that change of signal intensity is not easy to miss. 34.In light of the above analysis, I find the opinion of Dr Chun to be more supported by objective findings and reasoned analyses, while that of Dr Tio tends to have relied heavily on the subjective complaints of the plaintiff. I therefore prefer the opinion of Dr Chun, to the extent it differs from the opinion of Dr Tio. This means that the pain the plaintiff complained of cannot be explained from the orthopaedics perspective. 35.Since both orothopaedics experts recognized the possibility of the symptoms of the plaintiff being compounded by psychiatric or psycho-social conditions, the JPRs have to be considered in detail. The symptoms reported by the plaintiff, her psychosocial functioning as well as the mental state examination carried out by the two psychiatry experts were noted in the JPRs. Although both psychiatry experts agreed on the diagnosis of adjustment disorder with depressed mood and that the plaintiff did not have any pre-existing mental disorder, they failed to agree on the other matters covered by the JPRs. 36.Dr Kwok opined that the development of the psychiatric disorder was wholly a result of the Accident. In his opinion, the stressor is the aftermath of the Accident and her emotional turmoil is reactive to the persistent pain, her functional impairment and inability to return to her job. Dr Kwok described the situation as a vicious cycle, with the physical and mental conditions of the plaintiff causing the exacerbation of each other. 37.Dr Kwok took the view that the disorder of the plaintiff has become chronic, when the disturbance has lasted over 6 months, and it being unlikely that she would have any significant improvement of her psychiatric problems in the near or medium term future with further treatment. The symptoms of the plaintiff are, in the opinion of Dr Kwok, manageable and her psychiatric disorder is of mild severity. Whether the plaintiff would have her residual psychiatric symptoms cleared up depends on the progression of her pain symptoms, her employment, the settlement of her compensation and support from her family. 38.As for Dr Yu, he basically considered the plaintiff to be exaggerating her physical and mental conditions, it being his view that the plaintiff has recovered or had minimal symptoms. Dr Yu was of the view that the development of mental symptoms subsequent to the Accident was attributable to the Accident, but their persistence was attributable to the compensation litigation. With the prognosis, Dr Yu opined that it depends entirely on the outcome of the compensation litigation, with the plaintiff suffering great frustrations if it is not in her favour or instead she may be able to come to terms with it and move on. 39.Dr Yu explained in great detail the analysis he had carried out before coming to such conclusion. I note, on the other hand, the different views of Dr Kwok on all the matters commented upon by Dr Yu, and his observation that the view of Dr Yu is over-simplistic or likely speculation. However, having considered the further elaboration by Dr Kwok and Dr Yu, I find Dr Yu to be more critically analytical while Dr Kwok, like Dr Tio, had a tendency of relying on the subjective complaints of the plaintiff. 40.For instance, the lack of response to the treatments by the doctors and therapists is one of the main reasons relied on by Dr Yu for coming to the view that the plaintiff was exaggerating. Dr Yu referred to a number of the findings of both Dr Chun and Dr Tio in the JMRs when he explained why he casted doubt on the genuineness of the physical symptoms of the plaintiff, and why they do not support the persistence of pain of such degree as was reported. 41.On her physical conditions in particular, Dr Yu referred to the opinion of Dr Chun that the plaintiff does not need any stick to aid in walking, which although not specifically commented upon by Dr Tio, is supported by the view of Dr Tio that the plaintiff can resume work as a waitress, albeit with an initial period of light duty only as adjustment. Dr Kwok, on the other hand, merely said that there was no reason for a patient not to follow the advice of a professional physiotherapist, which the plaintiff said was the reason she used a walking stick. 42.Referring to the aim of a physiotherapist as being the mobilization of a patient with musculoskeletal injuries, Dr Yu questioned the account of the plaintiff of the physiotherapists advising her to use a stick. In answer, Dr Kwok pointed to the medical record of a consultation with a doctor of the Department of Orthopaedics & Traumatology of PMH as indicating that the plaintiff does need a stick to aid walking. This medical record of PMH would naturally be based on the subjective complaints of the plaintiff. 43.Dr Yu explicitly mentioned that the plaintiff had not reported her mental symptoms truthfully and accurately and responded directly to the challenge of Dr Kwok that there was no logical basis for this statement. The memory difficulties complained by the plaintiff is, as pointed out by Dr Yu, not supported by the outcome of the assessment on cognitive functions done at the joint examination. More importantly, there were no psychiatric out-patient records of reported or observed mental slowness. 44.The nature of the nightmares reported by the plaintiff was one of the matters where there was a lot of crossfire between the two psychiatry experts. Dr Yu pointed to the nightmares of the plaintiff stepping onto a rod and falling with resultant limb deformity and bone exposure, then pointed out that the Accident was not a traumatic event as the plaintiff was not exposed to actual or threatened serious injury. There was some effort on the part of Dr Kwok to justify the reporting of nightmares by his statement that some nightmares with content related to the accident are very common. That does not explain why the content of the nightmares was out of proportion with the seriousness of the injury. 45.The reporting of flashback of the Accident was, according to Dr Yu, intrusive symptoms that are unique to a mental disorder called Posttraumatic Stress Disorder (PTSD). Dr Yu even went further to explicitly say that the attending psychiatrists had ignored such symptoms as the plaintiff was not expected to suffer them. Dr Kwok disagreed and stated that flashback may occur in acute stress disorder, obsessive-compulsive disorder, PTSD as well as in people suffering from manic depression, depression, near-death experiences, epileptic seizures and drug abuse. Dr Kwok might well have given examples of other disorders where patients can experience flashback, but these disorders are not what he and Dr Yu diagnosed the plaintiff as suffering from. 46.In addition to the above, I had the opportunity to observe the demeanor of the plaintiff myself. On the first day of trial, the plaintiff presented a letter from her treating psychiatrist dated 21 June 2019, certifying that she had recent emotional crisis and was mentally unfit to attend the trial as scheduled. I asked the plaintiff to see if her conditions would improve after taking medicine and having some rest and to return the next day. The plaintiff did not indicate any problem with handling the trial when she came back on the second day. At times there were short outbursts from the plaintiff, but she would then, sometimes after a short adjournment but sometimes without any break, be able to continue without any difficulty. Apart from such outbursts, the plaintiff was alert and focused all through the hearing and showed a clear understanding of the questions put to her and what was going on. She was also able to prepare closing submissions in her own handwriting to set forth her points within a rather short time frame, quite an accomplishment for a lay person of her educational level. The submissions she made were coherent and sensibly formulated. There is no indication whatsoever that the plaintiff’s alleged conditions had inhibited her attendance at the trial. 47.For the reasons set forth above, I prefer the opinion of Dr Yu over that of Dr Kwok. 48.A point repeatedly emphasized by the plaintiff, while she was testifying as well as when she was presenting her case, is that how could she be not suffering from the pain and problems she was complaining of when the doctors were prepared to grant her sick leave. As submitted by the defendant, the court is not bound by the sick leave certificates that have been granted to the plaintiff. The following passage from the judgment of Rogers VP in the case of Choy Wai Chung v Chun Wo Construction & Engineering Company Limited, CACV 172/2004, 15 July 2005 is worth noting:
Hence, sick leave certificates have to be evaluated in the light of all the available evidence including the medical evidence before the court. 49.Another challenge by the defendant relating to the sick leave certificates obtained by the plaintiff is that she went to see the doctors when the sick leave periods covered by such certificates were up or almost up. When the plaintiff was cross-examined on this, she said she did not visit the doctors for getting sick leave certificates only, she also consulted them and obtained medication. When further asked why she kept on getting the medicines which had not been able to relieve her, the plaintiff said she wanted to save money and so went to the doctors only when the sick leave period was going to expire. To the question of whether she had told the doctors that the medication was of little use to her, the plaintiff said she dared not challenge the doctors. 50.The following observations of the court in Li Cheuk Lam v Cheung Sun Tai, HCPI 1102/2015, 13 October 2017 on a similar scenario are applicable in the present case:
51.The plaintiff did not agree to the suggestion of Ms Kwok, counsel for the defendant, that she went to see the doctors for the purpose of getting sick leave certificates. When Ms Kwok specifically referred the plaintiff to the notes of her treating doctors recording her being worried of inability to apply for several weeks of sick leave and her being relieved when sick leave was granted, the plaintiff denied ever having told the doctors so. 52.The answers the plaintiff gave to the questions about her pattern of obtaining sick leave certificates are disingenuous. As pointed out by the defendant, going back to the doctors hundreds of time for ineffective treatment defies common sense. It is apparent that the plaintiff was more concerned with seeking sick leave than getting genuine medical treatment. This leads to serious doubts on her credibility about the pain she still has. 53.The grant of incessant sick leaves by the treating doctors is also not supported by the four experts. Dr Yu took the view no sick leave should be granted, while the period of sick leave considered appropriate by Dr Chun, Dr Tio and Dr Kwok is 6 weeks, 12 months and the period from June 2015 to February 2016 respectively. There is no objective evidence at all that the plaintiff had to take leave, whether because of her physical or mental conditions, for the very long period that she had stayed away from work. 54.The caveat noted by the court in 莫錦平對葉家啟及另一人 HCPI 546/2014, 5 October 2016 is equally applicable in the present case. In paragraph 58 of the judgment of the case, it is said that
55.The hearsay nature of the records of the treating doctors and therapists has long been recognized by court. The following discussions in Gurung Kamala v Hong Wei Limited DCPI 1660/2010, 26 March 2012 are illuminating:
56.Such nature of the role of the treating doctor is also confirmed by what Dr Yu said in the JPRs when he explained why he believed the plaintiff had misled the public clinic psychiatrist(s): “In a treatment situation the psychiatrist does not doubt the veracity of the patient’s symptoms. This is posited on the shared goals of the patient’s desire to get well and the psychiatrist’s commitment to help the patient to get well. Thus, a malingerer could mislead the public sector doctors…”. 57.I note Dr Kwok’s disbelief that Dr Fong, the treating psychiatrist of the plaintiff, an associate consultant at PMH, would be fooled or misled by the plaintiff. I have to bear in mind though that, unlike the experts retained in this case who have pledged to be impartial and independent, the role of Dr Fong would naturally be affected by the ‘shared goals’ referred to by Dr Yu. 58.The specific incidents referred to above are illustrative of the quality of the testimony of the plaintiff, which I find to be not credible in general. The plaintiff was evasive and often responded by saying “I don’t know how to answer”. I am not prepared to accept the plaintiff’s testimony about her physical and mental conditions. 59.Having considered all the evidence before me as a whole, I find the plaintiff to have failed to show that she had suffered any injury other than the minor contusion to her right hand and her knees. As for her mental conditions, I find the plaintiff to have adjustment disorder with depressed mood but at most she only has minimal symptoms, meaning that, in the words of Dr Yu, symptoms rarely occur, are of a very mild intensity and of brief duration, and lead to no functional impairment. The chronic nonstop pain of her right hand and two knees, as well as the mental symptoms she complains of, are merely exaggerations by the plaintiff. I also find that there had been recovery of her injuries after 6 weeks, if not earlier. ABILITY TO RESUME PRE‑ACCIDENT WORK 60.The plaintiff places great emphasis on the recommendation in the reports of the OD of her work capacity as “not matching job demands, with significant degree of limitation”. In the first place, all such reports of OD record the essential job tasks of a waitress, as narrated to the therapists by the plaintiff. There has been no matching of work capacity with the task requirements of other jobs. Furthermore, in view of the subjective nature of the complaints which formed the basis of the assessment of the occupational therapist, the forensic evidence of the experts on this is therefore more relevant. 61.All four experts opined that the plaintiff is able to resume work. Dr Chun, Dr Yu and Dr Tio expressed the view that she is able to work as a waitress, without limitation in the opinion of Dr Chun and Dr Yu, but periodic breaks would be required in the opinion of Dr Tio. It is the opinion of Dr Kwok that she can take on more sedentary job, such as a telephone operator, but not work as a waitress, and initially on a part-time basis and switching to full-time after at least half a year. The alleged inability of the plaintiff to find any employment is not supported by any objective conditions. 62.It is my finding as a result of the Accident, the plaintiff suffered only minor contusion to the right hand and her two knees, and adjustment disorder with depressed mood. I also find the plaintiff to have recovered fully from her physical injuries and only have had minimal mental symptoms after 6 weeks from the Accident. The plaintiff has therefore been fully capable of returning to her previous employment since then and that she will not be affected by the injury she had from the Accident in fulfilling the duties under that job. 63.In light of such finding, there is no need to deal with the defendant’s submissions on the failure of the plaintiff to mitigate her loss. Nonetheless, for the sake of completeness, I will briefly address the point here. Quoting from paragraph 9-004 of McGregor on Damages 20th ed., the term “mitigation” means that “…the claimant must take all reasonable steps to mitigate his or her loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which he or she failed, through unreasonable action or inaction, to avoid. Put shortly, the claimant cannot recover for reasonably avoidable loss.” 64.Granted that a tortfeasor has to take his victims as he finds them, I do not accept the defendant is not answerable for the plaintiff’s failure to find employment owing solely to limitations in her education and language skills. However, the perceived inability to find employment owing to her physical and/or mental conditions, had they been genuine, is only the subjective belief of the plaintiff. Not only the truth of such belief has not been tested by attempts to look for lighter work or shorter part-time work, but it is also countered by the objective fact that people with more severe disability are indeed members of the local labour force. 65.Indeed, as submitted by the defendant, the ability to return to employment is based on objective findings instead of the plaintiff’s subjective wish. In admitting to not having made any attempts to find employment at all, there is no evidence of the plaintiff taking any reasonable action to avoid the loss that she is now seeking to recover from the defendant. Hence, even if I were to find otherwise, I would have found the plaintiff to have failed squarely in her duty to mitigate her loss. PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”) 66.Five cases were referred to by the defendant in relation to the plaintiff’s claim for PSLA, Lo Yin Fong v Maxim’s Caterers Ltd DCPI 1424/2009, 15 March 2011, Tam Wai Chun v Choi Siu Kwong DCPI 2647/2007, 6 October 2008, Cheung Yiu Kwong v Yu Wing Hong DCPI 158/2007, 26 June 2008, Sulakhan Singh v Federal Securities Limited DCPI 231/2007, 6 June 2008 and Li Cheuk Lam v Chung Sun Tai HCPI 1102/2015, 13 October 2017. The awards for PSLA in those cases range from HK$50,000 to HK$90,000. The plaintiff claims PSLA in the amount of HK$450,000. Ms Kwok submitted that the award for PSLA should not be more than HK$70,000 - HK$100,000. 67.The assessment of HK$50,000 for PSLA in the Lo Yin Fong Kin case was based on the pain over the knees, right hip and both shoulders sustained by the claimant after having slipped and fallen. The court considered the injuries of the claimant to be mild and took note of the fact that she had been able to return to her former work. 68.The claimant in the Tam Wai Chun case was hit by a car and was hospitalized for a few days for her left knee injury. She was subsequently put on a knee brace and received physiotherapy. The pain still affected the claimant at the time of the trial and both experts opined that she still felt pain in her left leg in the range of 0-8/10. The court assessed PSLA at HK$80,000. 69.The court awarded HK$90,000 in the case of Cheung Yiu Kwong. The claimant in that case was injured in a traffic accident, and was found to have injured his left knee, with tenderness, swelling and a 2- cm laceration, but no effusion or fracture. He was discharged after the wound was sutured. Days later, he complained of neck and right shoulder pain but the condition became better after treatment, with his knee pain being the main complaint at the time of trial. 70.The claimant, a security guard, in the Sulakhan Singh case had a slip and fall accident and was awarded HK$60,000 for PSLA. Whilst taking into account the pre-existing degenerative changes on his right knee, the award was made on the basis of the soft tissue injuries to his right knee and lower back from which he had recovered. 71.The Li Cheuk Lam case is also about personal injury arising out of a road traffic accident. There was double impact as the claimant’s container truck was hit from behind, causing his vehicle to hit the vehicle in front. On the basis of his having suffered a soft tissue injury or contusion of his right knee (with pain, slight swelling, redness, decreased range of knee extension and flexion and uncomplicated by any open wounds, bony or ligament injuries) and from which he had fully recovered in less than 3 months’ time, HK$70,000 was awarded for PSLA. 72.All the cases referred to can only offer guidance, as there are bound to be differences in terms of the injuries sustained, the treatments undergone, the extent of residual pain, and the effect of the injury on the claimant’s life, from case to case. It is my finding that the plaintiff has only shown to have suffered contusion of her right hand and both knees and adjustment disorder with depressed mood as a result of the Accident and that at most 6 weeks later, she had recovered fully from her physical injuries and has only minimal mental symptoms. Having considered all these matters as well as inflation, I award HK$70,000 as damages for PSLA. PRE‑TRIAL LOSS OF EARNINGS AND MPF 73.Despite the claim of HK$14,000 as her pre-accident monthly salary in the Revised Statement of Damages (“RSOD”), the plaintiff confirmed at the hearing that the figure she adopts should be $13,950. This is based on the amount stipulated by the defendant in the Form 2 filed, being the monthly salary of the plaintiff for July 2014, the month immediately prior to the occurrence of the Accident. The defendant’s case is that the average monthly earnings of the plaintiff at the time of the Accident should be HK$12,040, being the average of the earnings for March-July 2014, the five full months for which the plaintiff had worked for the defendant prior to the Accident. Madam Lau did testify to the earnings of the plaintiff for each of these months and the records of the defendant on such earnings have been produced. 74.According to the employment agreement made between the plaintiff and the defendant, the plaintiff was to be paid a basic salary plus overtime and other allowance. The actual take-home pay thus varied from month to month. For the purpose of calculation of the monthly earnings of an employee under the Employees’ Compensation Ordinance, the formula set out in section 11 of that Ordinance is applicable. Applying that formula, the monthly earnings of the plaintiff at the time of the Accident would be HK$13,950. For the purpose of the present assessment, that section 11 is not applicable. I accept the defendant’s case that the average for the previous 12 month’s period should be adopted and since the plaintiff had worked for the defendant under a year, the average for March-July 2014 is to be adopted. 75.Having found the plaintiff to have recovered and able to return to her employment with the defendant after at most 6 weeks from the Accident, the appropriate sick leave period should be 6 weeks. No damages should be awarded for pre-trial loss of earnings beyond that point. Damages under this head should therefore be $17,698.80 ($12,040 x 42÷30 x 1.05). POST‑TRIAL LOSS OF EARNINGS AND MPF 76.In light of the findings above on the extent of her injury and her ability to resume work, there would be no loss of earnings post trial. No award is made under this head. LOSS OF EARNING CAPACITY 77.As noted in Kings Light Industrial Limited v Lo Wai Keung CACV 80/1992, 21 December 1992, damages for loss of earning capacity is to be awarded where the claimant faces a risk of losing his employment at some future point of time during the claimant’s working life. Such award is to compensate the claimant for financial loss because of his disadvantage in the labour market. 78.The claim of the plaintiff under this head is HK$84,000, pitching this on her need to take more short breaks, rendering her more inefficient, unproductive and less competitive than other fit and healthy women of her age. On the basis of the greater difficulty for the plaintiff to find a new job and the higher risk of losing employment, the estimate of 6 months’ earnings (HK$14,000 x 6) is put forward in the RSOD. 79.The assessment of loss of earning capacity by Dr Chun and Dr Yu was 0.5% and 0% respectively. Dr Chun had qualified his assessment as being made on the basis of the possible but unlikely mild residual pain upon very heavy exertion of the right wrist and very prolonged ambulation for the knees. 80.With the job demands of a waitress, exertion of the right wrist is definitely required, but very heavy exertion of the right wrist is not expected. The same goes for ambulation for the knees, prolonged ambulation, but not very prolonged ambulation, would be required only around meal times but when the restaurant is not as busy, the waiting staff would be able to rest. There is thus no objective basis to justify an award for loss of earning capacity. FUTURE MEDICAL EXPENSES 81.At trial, the plaintiff repeatedly referred to her intention to have an operation done for her knees, something recommended by Dr Lai, the private orthopaedics practitioner she consulted, once she has the money for it. This claim is actually not included in the RSOD, but for the sake of completeness, I will deal with it here as well. 82.Both orthopaedics experts expressed the opinion that the plaintiff has reached maximum medical improvement and that she would not benefit from further treatment on the orthopaedics side. Hence, there is no basis for making any award for the intended surgery. 83.There is still the claim of HK$33,600 in the RSOD for future expenses for psychiatric treatments, based on the further psychiatric treatments recommended by Dr Kwok and the costs of such treatments in the private sector. Dr Kwok did so indicate in the JPRs, stating that the plaintiff should benefit from receiving further psychiatric treatment for at least 9-12 months after the settlement of this litigation, and also the costs for each consultation of a psychiatrist in private practice being around HK$1,500 to HK$2,000, plus cost of prescription of $200 per week, whereas the costs of psychiatric treatment in the public sector is about HK$100 - HK$150 per consultation with medication included. The defendant offers HK$1,500 for this item. I note that Dr Kwok actually suggested further psychiatric treatment in the public sector for the sake of continuity. In any event, in light of the above finding, I see no basis to award any sum under this head. SPECIAL DAMAGES 84.The plaintiff claims HK$38,828 for medical expenses, HK$5,000 for travelling expenses, HK$5,000 for over-the counter medications and medical supplies, and HK$10,000 for tonic food. Except for the medical expenses, no receipts have been produced for these items. 85.With the medical expenses, since I find the plaintiff to have fully recovered after 6 weeks from the Accident, such expenses as may have been incurred up to 4 October 2014 are recoverable. According to the schedule of medical receipts, there were 12 consultations during this period and the total amount comes up to HK$1,300. 86.The defendant offers payment of HK$2,000 for travelling expenses, HK$2,000 for non-prescribed medication, and $5,000 for tonic food. The offer of the defendant for non-prescribed medication at HK$2,000 was accepted by the plaintiff when she testified. For the remaining items under this head, in light of the above findings, the offers of the defendant are generous. I award the sum of HK$1,000 for travelling expenses and HK$1,000 for tonic food. 87.The total award for special damages is therefore HK$5,300. DEDUCTIONS 88.The plaintiff has received a sum of HK$33,852 as advance payment for her claim for employees’ compensation. This sum should be deducted from the damages awarded in this action. SUMMARY 89.The following table sums up the computation of the damages assessed to be payable by the defendant to the plaintiff:
90.Interest at 2% per annum is to be awarded on the award for PSLA from the date of service of writ and at half the judgment rate on the award for pre-trial loss of earnings from the date of Accident. COSTS 91.The defendant seeks costs for the first day hearing because of the plaintiff claiming that she had a mental crisis and cannot proceed with the hearing as scheduled. I agree that actually no adjournment was necessary and the plaintiff should bear the costs. On a nisi basis, I award
The plaintiff, present in person Ms Vanessa Kwok, instructed by Au & Associates, for the defendant | ||||||||||||||||||||||||||||||
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