Yam Yuen Kwan Eugenia v. Convoy Financial Services Ltd

HCPI 1173/2015

[2019] HKCFI 2461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1173 OF 2015

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.This is an assessment of damages. 

Background

2.The plaintiff was born on 5 October 1985.  She received her education in Hong Kong and graduated from university.  She started working with the defendant as a consultancy development assistant in about mid-2011.  On 21 January 2013, she met the present accident (the “office accident”) when she tripped and fell. She hit upon a chair and did not fell onto the ground.   

3.Because of the office accident, the plaintiff commenced 2 sets of proceedings, DCEC 1212/2014 and the present one.  The former was settled by parties at $465,918.17.  Regarding the latter, the defendant conceded liability leaving damages to be assessed. 

4.In the meantime, on 28 April 2015, the plaintiff, as a bus passenger further met a traffic accident (the “traffic accident”) when the bus collided with a taxi.  She suffered head neck and back injury from the traffic accident. 

Hospital medical evidence

5.After the office accident, the plaintiff went to the Accident & Emergency (“A & E”) Department of Pamela Youde Nethersole Eastern Hospital.  The report^[1] said that:

“…

On physical examination, she was conscious with stable blood pressure. There were areas of tenderness over both upper and lower back region. X-ray of spine was took and she was admitted to Orthopaedic ward for further treatment…”

6.The Orthopaedics & Traumatology (“O & T”) Department reported^[2]:

“…

Physical examination showed diffuse thoracic and lumbar tenderness. Lower limb power was grade 2/5, sensation diminished was over right leg and left thigh. Upper limb and lower limb jerks were normal. Plantar reflex was downgoing. The anal tone and perianal sensation were normal. CT brain was normal. MRI of the whole spin on 22 January 2013 was normal. Neurology and psychiatry colleague assessment showed no abnormality. Blood test including blood count, renal function test, liver function test, creatinine kinase, calcium, phosphate, thyroid function test, C-reactive protein and erythrocyte sedimentation rate were normal...”   

7.Further O & T report stated^[3]:

“…

She was regularly followed up in our Out-Patient Clinic. On the latest follow up on 7 August 2015, she still got residual back pain. CT guided biopsy of L4/5 disc was arranged but patient defaulted…”    

8.In the meantime, the plaintiff was referred to the Occupational Therapy Department.  It reported^[4]:

“ Ms. Yam attended initial work assessment at our department on 30 May 2013, which was about 4 months after her injury. On initial assessment, she complained of pain over her lower back region. Numbness was reported over her left buttock and lower limb. Decreased light touch sensation was reported over right lower limb. The range of truck forward was poor… The activity tolerance was poor. She was able to stand for 15.0 minutes, walk for 30.0 minutes, sit for 45.0 minutes and she was unable to perform a squat during assessment. She was recommended to start a course of work hardening program.

Work assessment was repeated on 24 June 2013, which was after 3 sessions of work hardening program. Increased low back pain severity was reported … Numbness with decreased light touch sensation was reported over bilateral lower limbs… Work plan was discussed with Ms. Yam but she had no concrete work plan at that moment. The work hardening program was suspended as she reported significant increase in low back pain. She was advised to have gentle mobilization and stretching exercise by herself…

Updated work assessment was done on 31 July 2013. Persisted low back pain was reported. Similar numbness with decreased light touch sensation was reported over bilateral lower limbs. The range of truck forward flexion was still poor… The activity tolerance was remained similar. She was able to stand for 30.0 minutes, walk for 30.0 minutes, sit for 60.0 minutes and she was still unable to perform a squat during assessment. Work plan discussion was done. Ms. Yam reported that her company would arrange modified duties with clerical tasks only for her and she was willing to try. She was then discharged from our department.”       

9.Further, the Department of Psychiatry said in its reports^[5] that:

“ In conclusion, Miss Yam is diagnosed to have Moderate depressive episode, which was precipitated by her back injury during work in January 2013. Her persistent low back pain and lower limb numbness and weakness after the back injury resulted in significant disability, which perpetuated her depressive illness. Further treatment by the Orthopaedic team and Pain team is necessary to optimize her pain control, which can also help in improving her mood. At this stage, she needs to continue psychiatric follow-up and treatment in order to further optimize her mental state…”

“…

She first presented to psychiatric service on 25^th January 2013 when she was assessed by consultation liaison psychiatrist as she was referred by orthopaedic surgeon for suspected psychological cause of lower limb weakness. She was admitted to the orthopaedic ward of Pamela Youde Nethersole Eastern Hospital (PYNEH) from 21^st January 2013 to 3^rd February 2013 for back contusion with lower limb weakness after the alleged injury-on-duty. There were no known organic causes for her lower limb weakness identified after investigations. On mental state examinations, she was calm with stable and euthymic mood. Her speech was coherent and relevant. There was no active psychotic feature. She had no suicide idea. She was impressed not to have any active pshychotic problem at that time. She did not need any psychiatric medications.

She presented to psychiatric service again on 20^th August 2013 when she was referred to Psychiatric Out-patient Clinic (POC), PYNEH by the Department of Orthopaedics and Tramatology, PYNEH for low mood. She presented with depressed mood, poor energy, loss of interest and motivation, insomnia and poor appetite. She was diagnosed to have moderate depressive episode. She was prescribed with antidepressant and was arranged to have follow-up at POC, PYNEH...”

10.After the traffic accident, the plaintiff was also referred for physiotherapy.  It said[6]:

“ She attended the first treatment on 17 July 2015. She came with neck collar and walked with stick. On assessment, she complained of multiple pain and numbness all over her neck, back, right upper and lower limb. There was decrease in range of motion of her neck. The lumbar spine movement was limited by pain. Four limbs muscle power was markedly decreased. Interferential therapy, neck, back, four limbs mobilization exercise, stretching exercise, ambulatory training, balance training and gaze stabilization exercise were all included in her treatment program.

There was irregular attendance of physiotherapy sessions with slow progress and fair treatment response. Ms. Yam defaulted physiotherapy after her last attended treatment on 16 October 2015 (5th treatment session) …”

Mutual agreement to terminate employment

11.In fact, sometime after the traffic accident, parties also came up with an agreement to terminate the employment.

“…

Referring to your email dated 8 June 2015, we regret to hear about your recent car accident in April 2015. As you said that you are unable to perform your usual duties as employed, Convoy Financial Services Limited and Yam Yuen Kwan Eugenia have reached a mutual agreement that the employment contract between aforesaid parties will be terminated with effect from 16 June 2015...”

Assessment

12.At the assessment, both parties were represented by Counsel, Mr Lawrence Law for the plaintiff and Mr Asok K Sakhrani, for the defendant. 

Reliability of the plaintiff 

13.Three witnesses gave their oral testimony in the assessment, one factual and 2 experts, namely, the plaintiff herself, Dr Miu (O & T expert for the plaintiff) and Dr Lee (O & T expert for the defendant). 

14.Reliability of the plaintiff is important in the assessment.  Both counsel made a number of remarks over her evidence. 

15.Mr Law said^[7] that she gave her evidence in a direct straightforward manner.  She was not shaken during cross-examination.  She told the doctors according to her condition at the time.  The plaintiff behaved like what one would expect of a reasonable person with such symptoms and disabilities.  She was a patient who truthfully believed that she was suffering from pain (even if the pain had no physical explanation and thus a “psychosomatic” pain).  She had taken every active action to seek medical help.  

16.Mr Sakhrani disagreed and said^[8] that the primary problem with the plaintiff’s pleaded case was that it contradicted the mechanism and nature of injury reported at the AED.  The significant feature was that her whole case was based on her complaints only.  Additionally, her evidence suggested her complaints after the office and traffic accidents were unreliable, as seen by the multiple complaints of other supposed impairments, none of which were proved on testing.  

17.Upon consideration, I prefer the submissions of Mr Sakhrani.  

18.There is no doubt that the evidence of the plaintiff contradicts with the contemporaneous hospital medical records. Under cross-examination, the plaintiff was proved to be unreliable.  Her explanations at the witness box are unsatisfactory and not accepted by me.  As pointed by Mr Sakhrani in his First Final Submission,  

“19. The Sevenrity of the Initial Injury: Firstly, it is significant that no bruises were found at the AED although the accident allegedly caused such a lengthy period of disability. Significantly, in xx, Dr Miu also conceded that if there was a serious contusion, this would show as swelling in the MRI. He also accepted in xx that commonly if there is a severe soft tissue injury one expects to see some objective signs like muscle wasting. All these were negative in our case. When it was then put to him in xx that in fact there was no severe contusion injury suffered, he agreed. This contradicted his whole written opinions in the JMRs that she suffered a severe contusion injury.

20. The Plaintiff was led in xx through the hospital notes at [BMRN/58-76 & 79-83] to show that on 22 January 2013 she complained of buttock pain but that over the next week until 29 January 2013 her complaint was either “minimal back pain” or “no c/o back pain”. When the point was first put to her she disagreed but when confronted with the records and the suggestion that her back pain was improving during this time, she said “Partly agreed”. However, she then went on to say that the entry in the middle of the night was made when the nurse did not wake her up (but, with respect to her, the Plaintiff has previous never alleged the entries are false). When it was then put to her that the numbess in her legs became the focus of her complaint during this period in January 2013, she said “Partly agreed” and said doctors prescribed pain killers and therefore the pain subsided (but the record said minimal pain or no pain and not that the pain was managed with analgesics).

21. It is clear that the initial complaint of pain very quickly improved and Dr Miu has not explained why the complaints of pain increased so substantially after improving for 10 days. In fact, the improvement seemed almost immediate because on 23 January 2013 the nurse’s entry was “Patient refused all medication including analgesics. Keep bed-resting. Blood taken & pending result # m,” (emphasis added) [BMRN/62]. When confronted with this, she said she only refused the injection but not the pain killers – this is, once again, plainly not consistent with the record.”

19.I also agree that the alleged neck pain caused by the office accident points the plaintiff in particular to be an unreliable witness. 

“25. Her evidence in respect of the alleged neck pain arising from the accident bears the hallmarks of an unreliable witness:

(a) she avoided the question that in the ward there was no record of any complaint of neck pain and when pressed she said she told the doctor of discomfort in the neck (illustrated in court by pointing) – although there is no such clinical note;

(b) later, when it was put to her that she did not complain about neck pain after the accident, she conceded that she did not sustain a neck injury but that after she maintained the same position for a period of time, she developed discomfort and neck pain;

(c) when it was put to her again that she made no complaint of neck pain, she said “Partially Agree” – then her attention was drawn to the physiotherapy report [B/242] that on 6^th March 2013 there was no record of neck pain, she said, “On this, I agree”;

(d) it is admitted the first complaint of neck pain was 27^th March 2013, about two months later;

(e) the whole of her first w/s said nothing about neck injury/pain; but

(f) she told the orthopaedic experts: “She recalls that the neck pain happened immediately after the subject accident.” (emphasis added)”[9]

20.The attempt by Mr Law to save his client’s credibility by bringing blame on inaccuracy of the medical records is not working. They were made contemporaneously by independent professionals. They have always been there.  If they are not accurate and have mismatch with the case of the plaintiff, it is for her or her legal representative to take appropriate steps to rectify the same long before the assessment.  The relevant medical officers/experts might agree or disagree.  However, as the medical records stood before this court, there were lots of inconsistencies as compared to evidence of the plaintiff.

21.I would also go further to suggest that the usual reply of the plaintiff of “partly agreed” to the questions put to her under cross-examination is particularly detrimental to her case.  When she being confronted with some indisputable facts at cross-examination, it was her only way out.  However, she was then only hiding from the questions or the truth.  She was simply not directly answering the question.  

22.Of course, one also does not forget the very fact that the plaintiff did make a number of or multiple complaints about her condition after the office accident.  However, despite tests being done, they could not be proved objectively.  They all pointed to the facts that the plaintiff was malingering.  

“23. The Genuineness of her Multiple Complaints: She made multiple complaints that required the hospital to conduct many tests, but all proved negative. In fact, this similar pattern of excessive complaints appeared after the traffic accident, when once again the test results were mainly negative. She was given every opportunity in xx to explain but failed to. It is respectfully submitted that she was not a reliable complainant:

(a) she complained of impaired sensation in the lower limbs after the office accident which could not be explained by the MRI findings and this caused the doctors to say there was a non-organic cause and refer for a psychiatric consultation [BMRN/51];

(b) she complained of very severe reduction in muscle power in the lower limbs of 2/5 but there was no explanation of this in the absence of nerve root compression [BMRN/60];

(c) the psychiatrist provided no explanation for her complaints, and said “No active psychiatric problem at the moment” [B/259];

(d) the areas of impaired sensation shown in the Sensory Chart was unsupported by the MRI and inexplicably extended considerably between 22 January 2013 [BMRN/90] and 6 February 2013 [BMRN/99], and even Dr Miu did not attempt to explain this in his reports and oral evidence;

(e) she complained of fever in the recent 2-3 months before the office accident and this caused the doctors to do an extensive sepsis workup [BMRN/60&65], but all along she had no fever (there are numerous references in the hospital notes to “afebrile” [BMRN/61] and all the blood tests were normal [B/246]). When asked about this in xx, she said actually she was told she had tonsillitis and only had mild fever for few days, and she had stopped medication before accident – this is, again, contradictory to hospital’s Progress Note [BMRN/65];

(f) she complained of incontinence of urine but on examination “no leakage seen at bedside” and there was “No active urological intervention” [BMRN/77];

(g) because of her complaints she was given bilateral drop foot splints [BMRN/64] but Dr Miu never explained why these were necessary for low back pain in the absence of nerve injury. When asked about this, the Plaintiff said in xx that these were not made because of her complaints but were suggested by the doctor and she had no idea what the foot splints were for. With respect, this is not credible…”[10]

23.Both counsel also had a dispute as to whether the plaintiff had shown the same pattern of complaints after the traffic accident with no medical indication to explain.  In this respect, I take the view that it is not necessary for me to make any findings.  Not only that I have already had sufficient information and rulings to arrive at a conclusion that the plaintiff is not reliable witness, both the liability and quantum if the traffic accident are also not issues before this court, it is therefore not appropriate for me to make any comment or findings thereof.  Hence, it remains a neutral factor in the present assessment and to be decided in future in appropriate forum, if applicable.  

Orthopaedic expert evidence

24.Having found that the plaintiff is not a reliable witness and rejected that she has been suffering as serious as she claims to be, I then proceed to decide on the differences between the expert evidence. 

25.I will start with the orthopaedic expert evidence as I had the benefit of the attendance of both Dr Miu and Dr Lee at the assessment.  

26.Two joint reports were prepared Dr Miu and Dr Lee, dated 5 October 2014 and 25 September 2017.  To assist the court to identify their differences between the 2 experts, Amended List of Disputed Issues was ordered to be prepared (see Appendix hereto). 

27.Mr Law reminded me of the approach to be adopted in assessing expert evidence stated in the case of Loveday v Renton [1989] 1 med LR 117 (at 125) and adopted in Wong Siu Wa v Win Sino Engineering Limited HCPI 571/2016 at paragraph 154. 

“154. In assessing the expert evidence, I would respectfully adopt the approach of Stuart-Smith in Loveday v Renton [1989] 1 Med LR 117 (at 125), wherein it was explained that:

(a)  The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b)  The court has to evaluate the witness and the soundness of his opinion.

(c)  Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d)  The weight to be given to the opinion of an expert depends on:

(1)  the internal consistency and logic of his evidence;

(2)  the care with which he had considered the subject and presented his evidence;

(3)  his precision and accuracy of thought as demonstrated by his answers;

(4)  how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(5)  whether or not a witness is biased or lacks independence.”

I heard no objection from Mr Sakhrani to the above legal proposition.  I accept and will follow them in the present assessment. 

28.For the following reasons, I have decided to prefer the opinions of Dr Lee than those of Dr Miu.  

29.Dr Lee honestly made a number concessions during cross examination. As pointed out by Mr Sakhrani in his First Final Submission,   

“30. There were numerous problem areas in Dr Miu’s evidence: At the beginning of his xx, Dr Miu agreed that it was his duty to look at the case critically, to see whether or not there were genuine complaints and genuine disability, as compared to treating doctors who might accept complaints at face value. Yet, as stated above, he conceded that he had reached his conclusions on the subjective signs and symptoms stated by the Plaintiff. When asked where in the two reports he had critically analysed the case other than simply adopting the subjective signs and symptoms, he could not point to anywhere in his two reports. He pointed to §66, the subjective signs and symptoms, which he conceded was the ‘high point’ of his analysis.

31. Whilst in-chief Dr Miu said it is generally accepted that positive Waddell signs are not malingering, in xx he backtracked on this and conceded that positive Waddell signs, a non-organic component, may be due to malingering or magnification, and that the magnification may be innocent or not innocent exaggeration. He further agreed in xx that in the case of a patient with history of unreliable reporting/complaints, one is entitled to suspect that positive Waddell signs indicate exaggeration. Finally, he conceded that positive Waddell signs may be evidence of malingering.

32. Questioned in xx, Dr Miu conceded that where a person complains of very significant back pain resulting in reduced ability of walking and can’t sit for long, it is probable to have some muscle wasting over years – yet none was seen here. He conceded the absence of muscle wasting in these circumstances was another factor to suspect unreliability of the complainant. It is a wonder that he failed to make this obvious point in the joint report, as it went to the heart of his conclusions.

33. When Dr Lee’s view at §65 of JMR [A/175] was put to him, particularly, “… the prognosis of contusion injury to the back without any structural injury should be good”, Dr Miu agreed with this. This was significant backtracking from his own position at §64 that the prognosis was only “fair”. With the learned Master’s assistance, he also agreed with the sentence in §64 except the word “high”: “It is likely that her symptoms are subjective and there is high likelihood of symptoms magnification.” Without reservation he agreed with the following sentence: “Based on the findings of absence of muscle spasm, the residual back pain should be mild and should not interfere with function.” (emphasis added).

34. This last concession was fundamental, it breaks down the Plaintiff’s whole case that she is dependent on walking aids, cannot sit, stand or walk for long, cannot do any work, etc.

35. Having regard to the extract from Zahid, above, particularly the expert: “must conduct a forensic examination and critically weigh the objective facts before offering his opinion to the court…”, it is noteworthy that Dr Miu conceded in xx that the objective evidence in the JOEE shows that the Plaintiff’s recovery was satisfactory, and that only the subjective signs and symptoms supported his conclusions. It is submitted Dr Miu made no analysis or attempt to resolve the inconsistency between the objective and subjective facts.

36. In xx, he also conceded that the 20^° flexion in tests of ROM [A/213] suggested a severe degree of reduction of ROM and he also said one reason for such severe degree of reduction of motion is muscle spasm, although none was found in our case (other reasons would be severe pain, but commonly that is associated with muscle spasm – Dr Miu conceded that the Plaintiff’s pain was likely mild, see above, and this contradicts the severe reduction in flexion). Dr Miu agreed with the proposition that such a severe degree of reduction of ROM is not compatible with the absence of muscle spasm. In relation to this incompatibility, Dr Miu agreed that lack of cooperation is one possible cause. He also accepted that the inconsistency between the SLR test and the Flip test might possibly be due to lack of cooperation. The point is, there is nothing in the 3 JMRs where Dr Miu has stated and dealt with all these matters which suggest the objective and even subjective signs are incompatible with the complaints, and indicate lack of cooperation. Instead, Dr Miu has relied totally on the subjective signs and symptoms, when he must have known that this was not sufficient.

37. It is not submitted that subjective signs and symptoms should be ignored, simply that one cannot solely look at them and not have regard to the objective signs and attempt to rationalise the two in the context of all the medical evidence. Plainly, Dr Miu failed to do so.

38.       …”

30.Mr Law took a different view.  He told me to accept the case of Dr Miu because:

“ 15.  It is respectfully submitted that by the scrutiny of the aforesaid approach in assessing Dr Lee’s evidence and by the experiences of the court in relation to the meaning of the presence of the Waddell’s signs, the bold assertion by Dr Lee, without citing any medical literature to support, that presence of the Waddell’s signs means the plaintiff has symptoms magnification or exaggeration must be rejected and this cast very much doubt on the credibility and weight of the totality of his evidence. Accordingly, Dr Miu’s evidence should be preferred where there is a divergence of opinion between Dr Miu’s evidence and that of Dr Lee in particular when Dr Lee says under cross-examination that the residual back pain was due solely from the pre-existing degeneration, which evidence must be rejected. (It is worthwhile to note that the D’s case suggested to Dr Miu under cross-examination is that presence of the Waddell’s sings does not authoritatively mean symptoms malingering or exaggeration and it can be innocent or deliberate symptoms exaggeration to which suggestion Dr Miu agrees. Thus, the D’s case put is different from the bold assertion by Dr Lee).

16.  Dr Miu and Dr Lee both agree that a patient can complain back pain without physical or organic causes.  When it is suggested to Dr Miu under cross-examination that with the level of recovery during the first examination of P, the back pain should be mild, Dr Miu disagrees and says that the subjective signs and symptoms go together and the subjective signs need to be considered.  Dr Lee agrees that the P can always report symptoms for back pain or subjective pain; and that a patient can still complain back pain for a long time.” 

31.I disagree with Mr Law.  It appears that he did not capture the expert’s evidence correctly.  On the Waddell test, Dr Lee was clear.  Positive signs indicated that one was attempting to present the pain was worse than what it really was.  Further, Dr Miu did make some concessions in his evidence, the clearest example being the one when I sought clarification from him as recorded by Mr Sakhrani in paragraph 33 of his First Final Submission. 

32.I should also mention that in arriving at the above ruling, I have expressly decided not to take into account of the submissions by Mr Sakhrani that Dr Miu’s evidence was rejected because he relied solely on the subjective signs and symptoms and ignored the objective signs in early cases of Poon Chi Yan v JSI Logistics (Hong Kong) Ltd, unrep, DCEC 40/2014, paragraphs 99 - 110 and Lai Lin Chi v AS Watson Group (HK) Ltd, unrep. HCPI 860/2013, paragraphs 12 - 18. Each case depends on its own facts and the evidence of an expert being rejected in one case does not mean that his evidence will always be rejected.     

Psychiatric expert evidence

33.There is one joint psychiatric expert report prepared and dated 5 January 2017.  Dr Tam for the plaintiff, and Dr Chung for the defendant.  The experts agreed that the plaintiff suffered from adjustment disorder with depressed mood.  However, they disagreed on the extent of the psychiatric injury, work capacity and recommendation on treatment.  

34.Given the fact that I have found the plaintiff unreliable and prefer the orthorpaedic expert opinion of Dr Lee, a fortiori, the opinion of Dr Chung is also preferred because those of Dr Tam largely depended on the acceptance of the allegations of the plaintiff and reliance on the opinion of Dr Miu. I have also the following assistance from Mr. Sakhrani from his First Final Submission of the Defendant.

“39.  The Plaintiff’s unreliability in the orthopaedic JMRs must give rise to the possibility of her unreliability in the psychiatric JMR. §27 which deals with her “Current Condition” points to her unreliability: There is no organic basis for the complaints at a., b., and f. which is in any case contradicted by the Mental State Examination findings in the joint psychiatric examination. 

40.  Regrettably, although Dr Tam at §48 refers to her as a “mental wreck which, in her own word, not much different from being a prisoner”, he diagnosed her with an Adjustment Disorder with depressed mood, which is a residual category of stress related mood disorder where the patient does not fulfill the diagnostic criteria of other mood disorders.  Curiously, he did not state whether her condition was mild, moderate or severe and all he said vaguely is that the impairment of daily function was “within the 10% range”, does this mean 2% or 9%?  Clearly, he too accepted her complaints at face value without responding to Dr Chung’s points at §41.  Dr Tam also elected not to respond to Dr Chung’s point at §42 that the impairment levels caused by the mental problems are mild (see the law below). These omissions are significant limitations in Dr Tam’s opinion. 

41.  Dr Tam never questioned the reliability of her complaints, when he should have noted the incident was only a contusion injury without structural damage. 

42.  Worse still, Dr Tam never gave reasons for his conclusions: “I cannot agree that she exaggerated her symptoms at the interview and at hospital follow up consultations.  She lacks the motive.  Her earnest desire is to get better quickly to resume work.” (see §51c. [A/197]).  He made no attempt to reply to Dr Chung’s points at §41.  The legal and evidential burden is on the Plaintiff. 

43.  In any event, the validity of the psychiatric experts’ opinion on the stressors that gave rise to the Adjustment Disorder depend on the Court’s assessment of the genuineness of her complaints and her orthopaedic condition, which is disputed.  Plainly, if her back pain resolved quickly, why did she develop stress related disorder?  ”

Findings on Disputed Issues

35.On balance, regarding the Amended List of Disputed Issues, I therefore find:

(1)  On diagnosis and causation, the plaintiff only suffered from a low-impact or low energy back injury from the office accident.  Her neck pain, if any, is not related to it.  

(2)  On the pre-existing spondylosis, without the office accident, she would develop pain in low back in about 5 to 7 years. 

(3)  As to prognosis, the residual back pain is mild and should not interfere with function.  Such pain is more related to the degeneration in the lumber spine.  

(4)  Regarding symptoms, the plaintiff only exaggerated them.  

(5)  Sick leave of only a total 4 months[11] is appropriate.  

(6)  On working capacity, after the sick leave, the plaintiff is able to return to her pre-injury job without difficulty.

(7)  I agree with Mr. Sakhrani that assessment by way of percentages on impairment of the whole person is not helpful and should be avoided[12] and as such, I have no findings on the differences between the parties notwithstanding that they did put it on the list of disputed issues.   

Quantum

36.With the above, I now move to the figures.  In the Closing Submissions, both counsel revised their cases as follows.

	plaintiff[13]		defendant[14]
(a) PSLA	400,000		72,000
(b) Pre-trial loss of earnings + MPF	621,390		164,000
(c) Future loss of earnings	1,020,600		Nil
(d) Loss of earning capacity	80,000		Nil
(e) Special damages	370,663		25,000
(f) Future medical expenses     and travelling expenses	1,545,296 + int		Nil
	4,037,949 + int		261,000
Less: ECC payment	465,918		465,918
	3,572,031 + int		Nil

37.I will in turn deal with their differences item by item as per the table. 

PSLA

38.As a result of my findings and rulings, the authorities quoted by Mr Law are not useful.  From those cited by Mr Sakhrani, I find 2 cases are of assistance. 

(a)  Ansar Mohammand v Global Legend Transportation Limited, uprep, HCPI 1057/2007 

“64. In Ansar Mohammad, supra, the plaintiff sustained a slip and fall injury for which he was treated at hospital and discharged. He was diagnosed with L2 fracture and left ankle soft tissue injury. He was given physiotherapy. He had pre-existing multi-level degenerative changes in the lumbar spine, worst at L4/L5. The plaintiff continued to complain of low back symptoms although the experts accepted there was evidence to suggest exaggeration of his symptoms. The learned Master found he must have suffered considerable pain initially and that there may well have been injury at the L5/S1 disc area but the video surveillance did not support his complaints. She found his symptoms were likely mild at worst. In July 2010, Master Levy awarded $150,000.”[15]

(b)  Chu Man Chi v Motorola Asia Pacific Limited, unrep, HCPI 150/2011

“ 67. In Chu Man Chi, supra, the plaintiff fell off a stage during a performance at the defendant’s annual conference. She landed on her buttocks and her back, and she reported that twisted her left and right ankles. She thereafter consulted multiple practitioners in different medical disciplines. X-rays and MRI revealed no significant bony injury, and no significant tendon inflammatory or ligamentous injury in both ankles. The orthopaedic experts agreed she had suffered a minor soft tissue contusion and sprain injury to her neck, back and ankles. They opined the symptoms of neck and back pain were mild and they opined she was fit to resume her pre-accident work with slightly reduced capacity, efficiency and endurance. The judge rejected the claim that she had suffered an injury to the back of her head. The judge also rejected the complaint that she had suffered PCD or PTSD. The judge found she was an “outright malingerer”. In his judgment in March 2016, Bharwaney J awarded $150,000 for the contusion and sprain injury to the neck, back and ankles.”[16]

39.With all these, I find a sum of $120,000 appropriate under this head of damages, bearing in mind the factor of inflation. 

Pre-trial loss of earnings

40.I accept that sick leave for a total of 11 months is appropriate, as recommended by Dr Chung (which would include the 3 to 4 months advised by Dr Lee).  Hence, it amounts to $164,010 ($14,200 x 105% x 11 months). 

Future loss of earnings

41.In my assessment, there is not future loss of earnings.  

Loss of earning capacity

42.In my view, there is also no loss of earning capacity.  On balance, I am not satisfied that the plaintiff will suffer any disadvantage in labour market or higher chance of losing job in future.  

Special damages

43.I agree with Mr Sakhrani that a lump sum of $25,000 is reasonable in light of the fact that the claims are only predicted when this court has not found her suffer from the severe and chronic disability.  

Summary

44.To conclude, the defendant need not pay the plaintiff anything as the sums received under the employee compensation has already exceeded the assessed damages herein.  

			$
(a)	PSLA		120,000
(b)	Loss of past earnings and MPF		164,010
(c)	Loss of future earnings		Nil
(d)	Loss of earning capacity		Nil
(e)	Special damages		25,000
			309,010
	Less: Employee compensation received		465,918
			Nil

Interest

45.The payment of interest is not applicable in the present assessment. 

Costs

46.There will be a costs order nisi that the defendant is entitled to costs of the assessment, on party-and-party basis, to be taxed, if not agreed.  The plaintiff’s own costs are to be to taxed in accordance with the Legal Aid Regulations.  

Mr Lawrence Law instructed by Au Yeung, Chan & Ho, for the plaintiff

Mr Ashok K Sakhrani instructed by Munros, for the defendant