Lai Sin Yan Elsie v. Tata Communications (Hong Kong) Ltd
Read the full judgment text of HCPI 1092/2015 on BabelCite. This High Court CFI judgment was delivered on 15 November 2019.
1. This is an action for damages for personal injuries sustained by the plaintiff in a “teambuilding” event for the Tata Communications Group of companies that was held in Singapore on 18 October 2012 at the Marina Country Club. The plaintiff, who was born on 29 October 1973, was almost 39 years old then. She is now ages 46.
Cited by 2 cases · Cites 3 cases
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HCPI 1092/2015 [2019] HKCFI 2815 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 1092 OF 2015 _____________________________ BETWEEN
______________________________ Before: The Honourable Mr Justice Bharwaney in Court Dates of Hearing: 1 and 4-7 March 2019 Dates of Written Submissions: 8 and 25 April 2019 Date of Judgment: 15 November 2019 ________________ J U D G M E N T ________________ 1.This is an action for damages for personal injuries sustained by the plaintiff in a “teambuilding” event for the Tata Communications Group of companies that was held in Singapore on 18 October 2012 at the Marina Country Club. The plaintiff, who was born on 29 October 1973, was almost 39 years old then. She is now ages 46. 2.The defendant (“Tata HK”) is a company incorporated in and having its place of business in Hong Kong. Tata HK is part of an international group of companies known as the Tata Communications Group, and is a subsidiary of Tata Communications International Pte Ltd (“Tata Singapore”) which is a company incorporated in Singapore. The Tata Communications Group (“the Group”) consists of subsidiary companies throughout the world. In Asia, there are Tata subsidiary companies in, amongst other places, Australia, Malaysia, Philippines and Thailand, as well as Tata HK in Hong Kong and Tata Singapore in Singapore[1]. 3.Tata Singapore, acts as the Asian regional headquarters of the Asian companies within the Group[2]. The business of the Group is the sale and servicing of high quality network connectivity services. Each of the Group’s companies in the Asian countries listed above employ their own sales personnel and, within the Group, the sales personnel are collectively referred to as Global Enterprise Solutions (“GES”)[3]. 4.By a contract of employment dated 29 March 2012 the plaintiff, who holds a bachelor of arts degree in computer engineering and telecommunications[4], was employed by Tata HK as a Regional Sales Manager commencing on 2 April 2012 with an annual base salary of HK$480,000 plus “on-target commission”[5]. The plaintiff reported to Mr Rajiv Verma (“Verma”) who was a vice-president of sales employed by Tata Singapore and stationed in Singapore. Various of the sales personnel employed by the various Asian companies within the Group also reported to Verma while others reported to Mr. Emmanuel Lapierre (“Lapierre”), another vice-president of sales who was also employed by Tata Singapore. 5.In late September/early October 2012, Tata Singapore decided to organise and hold a three day “Mercuri Value Selling Programme” workshop/conference and a one day “GES Teambuilding” event (“the Teambuilding”)[6]. The Teambuilding was supervised and run by Playlor Pte Ltd (“Playlor”), who were engaged by Tata Singapore as an external event provider to plan the games, to provide instructors to instruct and manage the teams and the participants, and to run the games[7]. Various members of the GES team employed by various of the Group’s Asian companies were required to attend and participate in both the workshop/conference and the Teambuilding[8]. 6.The plaintiff was one of eight employees of Tata HK who were required to attend the events in Singapore which took place from 15 to 18 October 2012, with the Teambuilding taking place on 18 October 2012 at the Marina Country Club[9]. All the participants were grouped into teams. The plaintiff’s group was led by Verma (“Verma’s Team”) and included Mr Siu Chi Ho (“Siu”)[10]. 7.The Teambuilding consisted of various team games[11] designed to promote teamwork in coming up with solutions and to encourage active involvement and participation by all team members. The Teambuilding was also meant to be fun. One of the games played was called “Mini-Legs” where the team had to achieve a minimum number of feet on the ground (the number being set by an instructor) and hold that solution for 3 seconds. The game became progressively more difficult as the number of feet in a team of 10 members permitted to be on the ground became lesser and lesser. 8.That evening, following her return to the hotel, the plaintiff experienced pain in her buttocks and back and was helped by a work colleague, Siu, to go to the Raffles Hospital where an MRI scan was carried out. That scan “showed lumbar spondylosis, most marked at the L5/S1 level where a left posterolateral protrusion possibly impinged on the left S1 nerve root”[12]. The attending doctor recorded that the plaintiff had presented with low back pain and “tenderness over the lower lumbar region of her spine”[13]. 9.The plaintiff returned to Hong Kong on 19 October 2012 and has never returned to work. 10.The issue of liability turns on how the Mini-Legs game was played by Verma’s team and whether, and how, the plaintiff became injured in the course of playing that game. The plaintiff alleged that Verma and Tata HK were negligent and/or Tata HK was vicariously liable for Verma’s negligence even though he was an employee of Tata Singaore The Plaintiff’s Evidence 11.During the course of the plaintiff’s evidence, I formed the impression that the plaintiff was intelligent and articulate. The plaintiff’s evidence[14] about the game of Mini-Legs was that the initial rounds were completed with ease. The game was played in the Marina Club complex as shown in photograph at B/280. The green surface on the ground shown in the photograph was astro turf[15]. The number of feet allowed on the ground kept reducing until the number was reduced to 6 feet. After some discussion, Verma decided to adopt the method of stacking members into a 2-level pyramid: with 6 members at the base forming a circle and each putting their hands on the shoulders of the members next to him/her and then bending their upper bodies slightly forward, while the remaining members would climb on their backs; then each of the 6 base members would lift one of their legs off the ground and keep it off the ground for 3 seconds to complete the challenge. 12.The plaintiff, one of 2 females on the team, was asked by Verma to be one of the members to climb to the upper level. She strongly opposed the method. However, she followed Verma’s instructions unwillingly and climbed onto the back of Siu. Some of the members at the base level did not have sufficient strength and lost their balance with the result that the human pyramid tilted and fell to one side in less than 2 seconds. The plaintiff fell and landed on her buttocks. Her upper limbs also hit the ground. She felt pain over her buttocks, coccyx and both arms. 13.After the first failure, Verma decided to adopt a 3-level pyramid method: with either 4 or 5 members at the base and several at the second level. In the course of her cross examination, she confirmed that, as there were only 9 members on the team and not 10 members, there were 4, and not 5, members at the base of the 3-tier pyramid[16]. 3 persons were on the second tier and 2 were on the third tier. Verma instructed the plaintiff and her female colleague, Ms Ann Koh, to climb to the highest level[17]. The plaintiff once again strongly opposed the method but, upon his insistence, again followed his instructions unwillingly. She did not, at that time, think her injury from the first fall was serious and she bore the pain and climbed up. When the plaintiff had just climbed up to the top level, the base members again lost their balance and the plaintiff fell down again. Her buttocks landed on the ground first, followed by her arms hitting against the ground. 14.Verma immediately urged the team to try again. Again, when the plaintiff had just climbed up to the top level, the lower levels did not have enough strength and lost balance. She fell to the ground a third time, landing on her buttocks followed by her arms hitting against the ground. At this point in time, the Playlor instructor announced that Verma’s Team had failed and were not required to play Mini-Legs again. 15.As she was suffering from pain over her buttocks, coccyx and arms, the plaintiff requested a rest from the other games and participated in them only minimally. At lunch time she took some painkillers. She took the bus with others back to the hotel and arrived at about 4:00 pm. She took a nap. At 6:00 pm, when she woke up, the plaintiff felt numbness over her lower body and pain over multiple sites at her back and upper body. She immediately telephoned Siu for help. Siu contacted the hotel manager who arranged the hotel doctor to see the plaintiff. Upon the recommendation of the hotel doctor, the plaintiff was taken to Raffles Hospital for treatment. 16.I will return to the plaintiff’s evidence after I have discussed the evidence of Ms Ho Sau Lan (“Ho”) and Siu. Evidence of Ho Sau Lan 17.Ho was the human resources director of Tata Singapore with responsibility for Tata HK at the relevant time, being also the human resources director of Tata HK. She left the employ of Tata Singapore in June 2017 and is now the senior human resources leader in Arthur J Gallagher, insurance brokers. She gave evidence that:
18.I find that the resulting Playlor’s contract did deal with safety. The contract[22] provided that:
19.In the course of her evidence, Ho made the point that the games were to be fun and enjoyable but that safety was a major consideration. She agreed in the course of her cross examination that there was an inherent risk that those being held up during Mini-Legs might fall[27] but she disagreed that a reasonable employer would consider that Mini-Legs was an unsafe game[28]. 20.I find Ho to be a credible witness and I accept her evidence. I find that Playlor was contractually engaged to run the chosen games safely under the supervision of Playlor’s instructors. The Evidence of Siu Chi Ho 21.Siu, who was still employed (as Associate Director, Global Account Sales) by Tata HK at the time of trial, gave evidence about what happened when Verma’s Team played “Mini-Legs”. The plaintiff submitted that he was an honest, reliable and credible witness and that I should accept his evidence. 22.However, I have decided that I cannot place any weight on his evidence. 23.Siu signed his witness statement on 29 March 2016[29]. Ho signed her supplemental witness statement[30] on 9 January 2017. This exhibited the earlier statement that Siu had made to Tata HK on 25 February 2016[31]. That statement of 25 February 2016, in material respects, was inconsistent with Siu’s witness statement of 29 March 2016. 24.The circumstances as to the making of Siu’s statement of 25 February 2016 was explained by Ho[32]. In cross-examination, Siu accepted that, in all material respects, what was set out in Ho’s supplemental witness statement was true and correct[33]. After his video teleconference with Mr Sujoy Thakurta (“Sujoy”), senior legal counsel of Tata Singapore and Ho, Sujoy prepared a draft statement for Siu to consider and sign. Siu accepted that he had been sent a draft, that they corresponded on its contents, and that his comments were reduced to the final version which he agreed and signed[34]. He did make alterations, as a straightforward comparison between the draft[35] and the amended statement he signed on 25 February 2016[36] shows. These amendments are shown in the document that I have recreated below with tracked changes in red:
25.On 29 March 2016, he signed a witness statement prepared by the plaintiff’s solicitors stating, amongst other things, the following:[37]
26.The fundamental differences between the statement of 25 February 2016 and the witness statement of 29 March 2016 are:
27.Siu’s failure to state in his statement of 25 February 2016 that he saw the plaintiff on the ground and believed that she had fallen makes that document an untrue statement because anyone reading it would understand it to mean that, according to Mr Siu, the plaintiff had not fallen. 28.On 26 April 2017 Siu made his supplemental witness statement[38] seeking to explain away his statement to Tata HK[39]. He explained the inconsistency in his supplemental statement in these terms:[40]
I am wholly unable to accept these so-called explanations which are illogical and beggar belief. 29.His so-called explanation in §9 of his supplemental witness statement that he had stated, in his statement of 25 February 2016, that “I do not recall her falling or anyone else saying that she had fallen” because he did not witness her fall, is a non sequitur. In §12 of his witness statement dated 29 March 2016 he said that he found the plaintiff “fallen onto the ground” and that he “helped her up.” This statement made about a month afterwards is wholly inconsistent with his statement of 25 February 2016 that “I do not recall her falling”. Further, the assertion that he did not have time to communicate with his team members that the plaintiff had fallen is wholly unconnected with his statement of 25 February 2016 that “I do not recall… anyone else saying that she had fallen.” 30.Siu’s assertion in the supplemental statement, that he did not see any sign of injury at the time he found the plaintiff fallen on the ground and when he helped her up, does not provide an explanation of why he said, in his statement of 25 February 2016, that “I am sure that she did not exhibit any signs of injury”, particularly as he had also asserted, in his supplemental witness statement, that because of time restraint, he did not properly inquire about her condition. 31.Siu’s assertion in the supplemental witness statement, that after the day’s games were over, he, as a man suffered from pain in the loins and back and exhaustion of the feet and that this was so even for a woman; therefore, after he heard that the plaintiff had suffered from lumbar pain, he felt it was normal, and that she might not have a problem, can only be described as nonsensical. 32.Although his supplemental witness statement dated 26 April 2017 did not allude to this, in his evidence before me Siu stated that he had told Sujoy and Ho during their video teleconference that he had seen the plaintiff on the ground and that Sujoy responded by stating that this was a serious matter and that he could only speak of what he saw. The suggestion that is implicit in this evidence is that Sujoy was deliberately trying to doctor Siu’s statement to hide the fact that the plaintiff had fallen. I do not believe this evidence. Ho has no recollection of what was said at the video teleconference. I accept her evidence that, if Siu had made such a statement during the video teleconference, it would have been expressed in the draft statement[41]. A serious accusation has been made against Sujoy that he was trying to doctor the evidence as to create an untruthful statement to bolster the defendant’s case. This evidence, if true, ought to have been set out in the supplemental witness statement that was specifically prepared to deal with the inconsistency between his witness statement and his signed statement of 25 February 2016. It is an afterthought. 33.Siu has made 2 wholly inconsistent statements within a month or so of each other and yet maintained that both statements were truthful, as demonstrated by the following exchange:[42]
34.Perhaps those in marketing and sales have a different perception of what constitutes truth. However, faced with these 2 wholly inconsistent statements, made about 1 month apart, one which must, of necessity, contain false statements which, I find, Siu must have known to be false, notwithstanding his denial before me in court, I conclude that I am unable to place any weight on any evidence that Siu has given before me. The Plaintiff’s Evidence 35.I return to the plaintiff’s evidence. Tata HK accepted that the plaintiff had a minor bump or fall at some stage during the Teambuilding on 18 October 2012: the plaintiff did go to hospital that night and did suffer superficial bruising, described by the experts as “superficial (subcutaneous) contusion of the sacro-coccygeal and left buttock region”[43]. However, Tata HK submitted that, it was for the plaintiff to satisfy the court that the “accident” happened in the manner and for the reasons pleaded in her statement of claim and as detailed in her witness statement: if the court concluded that there was some sort of “accident” but was not satisfied that it happened as alleged by the plaintiff, then her claim would fail. 36.It was common ground that the teambuilding event was a “one off” event that was meant to “be fun” as well as being designed to encourage active participation by all members of the team on how to “solve” the challenge represented by each game. As accepted by the plaintiff, all 9 members of Verma’s Team were mature and responsible individuals. Also, as accepted by the plaintiff, throughout all the games, including Mini-Legs, a Playlor instructor was with her team and actively involved, e.g. by calling out the “number of legs on the ground” etc. 37.Tata HK submitted that the plaintiff’s evidence could not be accepted as truthful as it was contrary to common sense, contradicted by the objective photographic evidence, and was full of inconsistencies and contradictions. 38.Tata HK submitted that the plaintiff’s version of events was not only suspect but highly unlikely because:
39.It was far-fetched, Tata HK submitted, that the plaintiff, who was a woman who could work under pressure, had proven leadership skills, and was well used to dealing with and inter-acting with people in very senior positions[44], would have felt obliged or intimidated to comply with Verma’s insistence that she climb twice to the top tier, being just after her first fall from a 2-tier pyramid, and then just after her second fall from the top of a 3 tier pyramid. 40.The defendant also made a strong submission that the plaintiff’s version of events defied common sense: there were at least 3 other “solutions” to the “6 feet on the ground challenge” that were obvious and straightforward:
Tata HK submitted that the 3 tier scenario was not only contrary to common sense but was simply silly. According to the plaintiff, the first attempt failed because “some members at the base did not have sufficient strength and lost their balance”[45]. But if 6 people on the base did not have sufficient strength to hold up the 3 people on the second tier, it was difficult in the extreme to see how anyone could, or would, think that 4 people on the base would be strong enough to support two upper tiers totalling 5 people. 41.Tata HK also submitted that the photographs taken on 18 October 2012[46], which provided objective evidence of the teambuilding event, were highly indicative that the plaintiff’s version was highly unlikely to be true. 42.Tata HK submitted, and I accept, that photograph 12[47] clearly showed Verma’s Team with 6 people on the base holding up the remaining 3 team members. The plaintiff had made no mention of the team seeking to solve the challenge using the obvious method shown by photograph 12. In her evidence in chief, the plaintiff had said that photograph 12 depicted that had occurred before the scenes depicted in photograph 11 and 34[48], which evidence, Tata HK submitted, suggested that the scene in photograph 12 depicted an earlier stage of the game where more than 6 feet were on the ground: however, photograph 12 clearly showed no more than 6 feet on the ground. Tata HK also referred to what the plaintiff had said, under cross-examination, that the method shown on photograph 12 failed and it was after that failure that the human pyramid solution was attempted. At this point in the cross examination of the plaintiff, I had pointed out that photograph 12 showed only 6 feet on the ground and that everybody appeared stable. However, the plaintiff insisted that the attempt shown in photograph 12 failed and that people fell to the ground[49]. 43.Tata HK submitted, and I accept, that it can be seen from photograph 12 that:
44.The defendant submitted further, and I accept, that photograph 12 showed that:
45.Whilst accepting that photograph 12 did not in itself prove that this solution was successful (because a single photograph catches a moment in time rather than 3 seconds) Tata HK submitted that, as the court had pointed out, the photograph did, indeed, show only 6 feet on the ground, and that everybody seemed quite stable. Tata HK also submitted that photograph 12 showed a solution to the challenge that was straightforward and clearly more likely to succeed than a 2 tier, let alone a 3 tier, human pyramid. 46.Tata HK also accepted that that there were earlier attempts that involved a number of people, in one manner or another, on the backs of other team members such as that shown by photograph 34[50]. However, Tata HK submitted that, one only had to compare photograph 12 with photograph 34 to immediately see that this could not be an attempt at “6 feet on the ground”, and that any attempt at a human pyramid was highly unlikely to succeed, hence the change to the method shown in photograph 12. 47.Tata HK also submitted that the plaintiff had been inconsistent and had had given different and grossly exaggerated versions of how Mini-Legs was played. Those versions of events were inconsistent with her witness statement, could not be reconciled with the photographic evidence, and contradicted her oral evidence:
48.I accept Tata HK’s submissions that I have quoted above. I find that the plaintiff did fall to the ground in the course of Mini-Legs once. I find that Verma did adopt a 2 tier method, with 3 persons perched or piggyback riding on the backs of 3 of the 6 persons forming the base, in a manner similar to that shown in photograph 34[58], which shows Will Ng riding piggyback on Rohan Mathur and Ann Ho perched on the back of Verma. I find that the plaintiff did climb onto the back of Siu, with her arms around his neck[59] and that she fell off the back of Siu when, as she described in §§22-25 of her witness statement, some of the members forming the base lost their balance. However, I do not accept her evidence that she fell off Siu’s back directly on the ground and landed on her buttocks. I find that she would have landed first on her feet and then fallen on her buttocks. 49.However, I also find that she grossly exaggerated the manner in which Verma’s Team played the game of Mini-Legs, when she suggested that Verma adopted a 3 tier human pyramid. I disbelieve the plaintiff’s evidence that Verma’s Team adopted a 3 tier human pyramid. If 6 people on the base did not have sufficient strength to hold up the 3 people on the second tier, the plaintiff’s evidence that 4 people on the base would be strong enough to support two upper tiers totalling 5 people is simply unbelievable. I had remarked in the course of her evidence that “[if] 2 tiers does not work, how does 3 tiers work? Is it not more difficult?”[60]. I am unable to accept her counsel’s submission that:
50.I am able to ignore the statement in §47(a) above that the plaintiff climbed to the top of a human pyramid of 5 to 6 tiers, as possibly being a typographical error. However, I do not accept her counsel’s submission that she was still much affected by her psychiatric illness and that her ability to relate these matters accurately, in all likelihood, was hampered by her condition. I find that she did so in order to give the wrong impression that she fell from a greater height than about 3 feet, which would be about the distance she would have fallen, as I have found above, landing first on her feet and then falling on her buttocks. 51.Having found that she grossly exaggerated her evidence and having disbelieved her evidence about the 3 tier human pyramid, I am unable to accept her evidence, and I am unable to find, that the plaintiff fell more than once. Verma’s Evidence 52.Verma did not come to Hong Kong to give evidence at the trial. His sister-in-law had passed away. I offered to hear the other witnesses and then to adjourn the trial part heard to enable Tata HK to call him to give evidence at the resumed hearing. I was informed that Tata HK had made the decision not to call him, and to call Ho as the only witness for the defence. The plaintiff has submitted that I ought to draw an adverse inference against Tata HK from its failure to call Verma or other witnesses to give evidence about the game of Mini-Legs, citing Ip Man Shan Henry v Ching Hing Construction Co Ltd (No 2) [2003] 1 HKC 256 at §155 where Deputy High Court Judge Lam, as he then was, stated:
The plaintiff has not established a prima facie case that she fell from a 3 tier pyramid. I disbelieved her evidence in that regard. I have found that she did fall once when she was perched on Siu’s back. Tata HK has conceded that she did fall once. Given that concession, there is no need to draw any adverse inference against Tata HK. Was Verma Negligent? 53.As team leader of Verma’s Team, I find that Verma had a duty to take reasonable care for the safety of his team members. In my view, it is just, fair, and reasonable to impose a duty of care on Verma in respect of injuries that might be suffered by his team members in the course of the teambuilding exercise, even though some of the team members were not co-employees but employees of other companies in the Tata Group, such as Tata HK, and even where the harm stemmed from the actions of other team members or from the actions of the injured member or members, provided that the scope of the duty was appropriately set. 54.The mere foreseeability of the risk does not give rise to breach of duty if it is one which could be met by employees taking obvious precautions. Likewise, the mere foreseeability of harm does not does not elevate the standard of care to prevent such harm from occurring. The standard and level of care that is required depends on the probability of the risk materialising, the gravity of the harm if it did occur, and how easy it was to avoid the risk[62]. A slight risk of harm occurring may be ignored if the harm that was likely to occur was slight and if the taking of precautions was difficult or impractical. 55.The team building exercise was meant to be a fun event. So it was easy to foresee that some team members might become overly exuberant and frolicsome. In the present case, playing the game Mini-Legs gave rise to a foreseeable risk that team members may adopt unsafe methods to play the game. For example, the activity depicted in photograph 34 showing the plaintiff being lifted up some 3 or 4 feet above the ground with her legs on top of the shoulders of Siu created the risk that the plaintiff might fall a distance of 3 or 4 feet and land on her buttocks on the astro turf. I find that the activity depicted in photograph 34 created a risk of this occurring that was not slight, and that the severity of the harm from the plaintiff falling 3 to 4 feet and landing on her buttocks was also not slight. It might have been difficult for Verma to intervene in a timely fashion to prevent its occurrence. However, I have no difficulty concluding that a duty of care arose on the part of Verma, who was the team leader in charge of the plaintiff’s team, to prevent such an activity. 56.However, I also find that there was no duty to intervene to prevent Ann Koh from riding piggyback on the back of Verma as depicted at the right of photograph 34, nor a duty to intervene to prevent Will Ng from sitting on the back of Rohan Mathur, who bent over to enable Will Ng to do so as depicted at the left of photograph 34. Although there was a risk of Ann Koh falling, she would have fallen only about 3 feet and landed first on her feet, with or without her buttocks thereafter also landing on the ground, such that the risk of harm to her was nil or negligible. Likewise, even if there was a risk of Will Ng falling, it was likely that he would have fallen a distance of no more than 3 or 4 feet, landing on his side, or on his hands and/or knees, such that any harm he would suffer would be minor. Likewise, I find that the activity shown on photograph B/285-1 was not one that gave rise to a duty on the part of Verma to prevent an employee from sitting on the cradle formed by 2 persons linking their arms: even if any of them fell, they would have landed on their feet such that the risk of injury was nil or negligible. 57.I have found as a fact that the plaintiff only fell once when she was perched on the back of Siu, with her arms around his neck, somewhat similar to the manner that Ann Koh was perched on the back of Verma, as depicted in photograph 34. I find that there was no duty on the part of Verma to intervene and prevent the plaintiff from doing so. The risk of her falling from Siu’s back was slight and the harm that was likely to occur, if the plaintiff did fall from Siu’s back, was also slight. I find that Verma was not negligent. 58.Although no specific allegations have been raised against Playlor, I find that Playlor’s instructor assigned to supervise the playing of Mini-Legs by Verma’s Team was also not negligent, for the same reasons that I have found that Verma was not negligent. 59.Having found that Verma was not negligent, there can be no vicarious liability on the part of Tata HK arising from Verma’s actions or omissions. Was Tata HK Negligent? 60.Playlor has not been sued by the plaintiff in respect of this occurrence. Indeed, in the plaintiff’s closing submissions, it was conceded that Playlor was a competent and qualified provider for organising the “GES Teambuilding workshop”[63]. 61.The underlying premise of the plaintiff’s submissions is that a reasonable employer should have excluded the Mini-Legs game altogether from the games to be played that day and that Tata HK was negligent in not doing so[64]. Given the findings of fact I have made above, these submissions are not tenable. 62.There is no doubt that Tata HK was under a non-delegable duty of care to the plaintiff, its employee. The editors of Clerk & Lindsell on Torts, (22nd ed.), provide a clear and succinct statement on the relevant principles at §13-11. An employer can delegate the performance of the duty to others, whether employees or independent contractors, but not responsibility for its negligent performance. In Kondis v State Transport Authority[65] the High Court of Australia held an employer in breach of his duty to provide a safe system of work when an independent contractor dropped part of the crane which hit an employee. The contractor’s failure to adopt a safe system of work was held to constitute a failure by the employer to satisfy the non-delegable duty to provide a safe system of work. In McDermid v Nash Dredging & Reclamation Co Ltd[66] the House of Lords held the employer liable for an injury to an employee which occurred at the worksite of a Dutch company where he had been instructed to work. The injury was caused by the failure of the Dutch company to have a safe system of work. The English employer was held to have delegated performance of his duty to the Dutch company and was responsible for its failure. As I have found that Playlor was not negligent, these principles cannot be invoked in order to assert that Tata HK was in breach of its non-delegable duty of care to the plaintiff. 63.A distinction is to be made between the delegation of part or whole of the employer’s process of work to an independent contractor and providing a service to an employee via a third party. In A (A Child) v Ministry of Defence [2003] P.I.Q.R. P33 Bell J reviewed the cases of Kondis and McDermid and other authorities and concluded that the defendant’s duty to its service personnel in relation to medical care was satisfied by providing access to an appropriate healthcare provider. It was not responsible for the negligence of that provider. He described the employer’s duty as “at the most to provide a safe system of working or to take reasonable care to see that one is provided (a negligence duty)”. The Court of Appeal [2005] QB 183 affirmed his analysis and decision. In this case, I find that Tata HK’s duty was to provide a safe system of participating in the teambuilding exercise and Tata HK discharged this duty by reasonably relying on Tata Singapore to provide competent and experienced instructors to conduct the teambuilding exercise and to take care of the safety of Tata HK’s employees during the teambuilding exercise. As I have found above, Tata Singapore did, indeed, do so by engaging Playlor. Further, as stated above, the plaintiff has conceded that Playlor was a competent and qualified provider for organising the teambuilding exercise. Plaintiff’s Claims Dismissed 64.For these reasons, I dismiss the plaintiff’s claims against Tata HK. 65.To cover the possibility that I may be overturned on appeal, I shall address the quantum of the plaintiff’s claims. Quantum 66.The parties are far apart on quantum. The plaintiff claims damages for PSLA for physical and psychiatric injury:
The plaintiff has not worked since 18 October 2012 and she claims damages for pre-trial, post-trial loss of earnings and loss of earning capacity. She also claims special damages and damages for future medical expenses. 67.Tata HK’s case is that she suffered no more than a subcutaneous contusion of the sacro-coccygeal and left buttock region and that she has grossly exaggerated her symptoms and is a malingerer[71]. She has also grossly exaggerated her mental condition[72] and, at most, she suffers from very mild anxiety[73] for which the proper diagnosis was Adjustment Disorder with Depressed Mood[74]. 68.The difference between the parties is made stark in the summary of the parties’ respective cases on quantum that is set out in the table below:
Injuries and Treatment 69.The plaintiff was seen at the Emergency Department of Raffles Hospital on the evening of 18 October 2012. An MRI scan showed “changes of lumbar spondylosis, most marked at the L5/S1 level where a left posterolateral broad based protrusion possibly impinged on the left S1 nerve root”[75]. The attending doctor recorded that the plaintiff had presented with low back pain and “tenderness over the lower lumbar region of her spine”[76]. She was alert and her vital signs were normal. There was no open wound. She was given intravenous and intra-muscular analgesics during her visit and discharged with oral analgesics. 70.The plaintiff returned to Hong Kong on 19 October 2012. On the next day she sought treatment at the Hong Kong Sanatorium and Hospital family medicine centre in Taikoo. 71.On 6 November 2012, the plaintiff had another set of MRI scans for her lumbar spine and pelvis. The MRI reports[77] stated that there was no occult fracture or contusion, “edema/ecchymosis in the posterior subcutaneous soft tissue likely direct impact injury”, and “superficial ecchymosis/edema in the subcutaneous fat over the left buttock region but no intramuscular hematoma”. 72.A summary of the consultations she had and the treatments she received from 18 October 2012 to 23 February 2016 is set out in the joint orthopaedic report[78]. She was granted sick leave from 18 October 2012 to 18 April 2016. 73.Ms Terry Mo, physiotherapist at the Hong Kong Sanatorium & Hospital recorded that the plaintiff walked with a rollator or a walking stick at home, and travelled outdoor with wheelchair and by rehabilitation bus service[79]. I note that the plaintiff had consulted an orthopaedic specialist, Dr Eric Chien, for a considerable period of time. In his report dated 17 January 2014, he stated that, on 2 November 2012, she attended his clinic in a wheelchair. She showed slow but gradual improvement with regular walking exercise with the use of walking sticks. On her follow up on 9 January 2014, she came in sitting on a wheelchair and was able to walk independently to the couch with a walking stick[80]. In his report dated 24 January 2014, Dr Alex Chow of Hong Kong Sanatorium & Hospital Rehabilitation Centre noted that the plaintiff walked with a stick with a limping gait when he examined her then[81]. Ms Terry Mo noted that on 12 August 2014 that the plaintiff was able to walk better with a stick but that she still used a wheelchair for outdoors and that on 23 April 2015 she could walk with a stick outdoors, go out by taxi and no longer required a rehabilitation bus escort[82]. The evolution of the plaintiff’s symptoms and signs from 2012 to 2016 have been noted in the joint orthopaedic report[83]. 74.In his report dated 17 January 2014, Dr Eric Chien stated that he had advised the plaintiff to seek a second opinion from a clinical psychologist.[84] In his report dated 24 January 2014, Dr Alex Chow stated that he also advised her that she would benefit from an assessment by a clinical psychologist.[85] She was seen and treated by Dr Paul Lam Tat Chung, a psychiatrist, in 2015[86], and later by Dr Kathy Chan Po Man, who was also a psychiatrist, from October 2015 to January 2016[87]. She also obtained treatment from the public psychiatric service at Pamela Youde Nethersole Eastern Hospital Department of Psychiatry from February 2016[88]. The Orthopaedic Expert Evidence 75.Dr Fu Wai Kee was the plaintiff’s orthopaedic expert and Dr Chun Siu Yeung was the orthopaedic expert appointed by Tata HK. Their joint orthopaedic report dated 13 July 2016[89] was received into evidence without the need for the 2 doctors to give oral evidence. At the pre-trial review on 7 December 2018, I had asked whether they should be called to be cross examined, given the difference of opinion between them. The plaintiff’s counsel submitted that that their joint report could be adduced without calling them and I did not insist that they should be called. 76.During their joint orthopaedic examination that took place on 19 May 2016[90], the plaintiff complained of poor sleep because of pain; left and right side back pain from the buttocks to the scapular region; sudden weakness of the lower limbs with frequent falls; headaches; and weakness of and pain in left knee[91]. At their joint examination, the plaintiff walked in with a left-handed stick in normal gait[92]. The experts found no deformity or swelling at the back[93], no muscle wasting of the leg[94], no soft tissue swelling at lumbar spine[95]. The plaintiff demonstrated 3 out of 4 positive results in the Waddell’s simulation test[96]. 77.It was common ground that the plaintiff’s injury should be the result of a fall. Dr Chun opined that the injury should be a superficial (subcutaneous) contusion of the sacro-coccygeal & left buttock region; and Dr Fu opined that the clinical picture of the plaintiff was compatible with the diagnosis of soft tissue injury of back[97]. They were agreed that the mild scoliosis and the degenerative changes at L5-S1 level shown on MRI was pre-existing and could not be caused by a single trauma[98]. 78.Dr Chun also identified various subjective complaints that could not be explained other than by symptom exaggeration, expansion and magnification[99]:
77. Dr Fu opined that “[for] this kind of soft tissue injury, it is not uncommon for patients to have mild pain initially that gradually increase in the next few weeks. For this kind of soft tissue injury, the MRI may not detect any obvious abnormality but the patients can have serious symptoms.”[100] Dr Fu also opined that the accident could have turned the asymptomatic degeneration at the spine into symptomatic one[101]. However, Tata HK submitted that the degenerative changes took place at the facet joint at L5/S1[102]. Dr Fu described the degenerative changes as “mild”[103]. In fact, in the MRI taken by Raffles Hospital on 18 October 2012, it was recorded that “the facet joints … are unremarkable”[104]. The MRI report on the pelvis dated 6 November 2012 only revealed superficial ecchymosis/edema in the subcutaneous fat over the left buttock region but not at L5/S1[105]. The left buttock and the facet joint at L5/S1 are in different locations. Tata HK submitted that it was difficult to understand how pain at left buttock could make asymptomatic degenerative changes become symptomatic at facet joint at L5/S1 in the absence of some explanation from an expert. 79.Dr Fu agreed that some of the plaintiff’s features might not be completely explained on clinical grounds[106]. Dr Fu did not rebut Dr Chun’s observations[107] that the plaintiff had exaggerated her symptoms. Dr Fu explanation was that the plaintiff was diagnosed by psychiatrists to have depressive disorder, that it was well known that patients with depressive disorders would have abnormal response to pain, and that the plaintiff’s clinical symptoms should be partly caused by her depressive disorder[108]. However, Tata HK submitted that:
80.Dr Chun was of the opinion that the plaintiff was able to return to work[111]. Dr Fu did not suggest that she could not return to clerical work but cautioned that she should return to clerical duties that did not need frequent walking[112]. According to Dr Chun, reasonable sick leave for subcutaneous contusion should be 4 weeks[113]. Dr Fu, however, endorsed the sick leave issued by the plaintiff’s treating doctors. The plaintiff submitted that Dr Chien and Dr Chow were eminent practitioners and that Dr Fu’s opinion endorsing the treating doctors’ sick leave should be preferred. The Psychiatric Evidence 81.The plaintiff was examined by the psychiatric experts, Dr Wong Yee Him for the plaintiff and Dr Yu Wai Tak for the defendant on 4 May 2016[114]. The opinions of the psychiatric experts are summarised as follows:
82.The differences between the psychiatric experts were due to the different diagnosis made. Dr Wong concluded that the plaintiff’s condition was much more serious and that she suffered from MDD and PTSD[115]. Dr Yu concluded[116] that the plaintiff had developed mental symptoms, the “predominant ones of which were a cluster typical of Adjustment Disorder with Depressed Mood”. Both Drs Wong and Yu recognised and, indeed, emphasised that, in the field of psychiatry, the patient’s complaints and symptoms were necessarily subjective, so that the patient’s credibility was of the utmost importance, and that consistency was the core of reliability[117]. Both Drs Wong and Yu agreed that the development of mental symptoms subsequent to the accident is attributable to the accident[118]. Dr Wong 83.Dr Wong was of the opinion that, presuming the plaintiff had given a reliable account and there was no symptom exaggeration, she was suffering concurrently from MDD and PTSD[119]. He explained why she satisfied the criteria for both these conditions[120]. 84.The plaintiff was suffering from Major Depressive Disorder, single episode, severe with psychotic features before she had psychiatric treatment, and, currently, she was suffering from Major Depressive Disorder, single episode, moderate[121]. 85.Dr Wong did not think the plaintiff gave unreliable history or was exaggerating her mental symptoms[122]. 86.In particular, it was his opinion that “…[the] persistent pain then acted to perpetuate the depressive features. As her mood increasingly sank, the resultant low mood (with the consequent negative thinking) amplified and exacerbated the existing painful perception … Thus a vicious cycle is set-up.” [123] 87.It was also his opinion that “…this close association between the pain she is suffering from and her depressive symptoms is a distinctive feature of her morbidity since 2012/2013. This vicious cycle is one of the reasons for her difficulty in attaining remission in both her pain and her depressive mood.”[124] 88.The plaintiff satisfied Criterion A for PTSD in that she was exposed to a traumatic event: she was made to go the top of the human pyramid 3 times, fell 3 times from 1.5 metres to 3 metres hurting her back and buttocks each time, and she was in intense fear and helplessness[125]. Dr Yu 89.Dr Yu, both in the joint psychiatric report and as amplified in his oral testimony, concluded that the plaintiff “has provided exaggerated descriptions of mental symptoms with the intent to build up a case of severe mental distress. She is likely having very mild anxiety due to overstating symptoms”[126]. He also concluded that:
90.In the joint psychiatric report, Dr Yu identified those areas where he concluded that the plaintiff was exaggerating and gave the reasons for so concluding which included:
91.When cross-examined, Dr Yu explained further that:
Plaintiff’s Submissions on the Psychiatric Evidence[142] 92.The plaintiff invited the court to prefer the opinions of Dr Wong over those of Dr Yu where they conflicted, for the following reasons:
93.When coming to the opinion that Criterion A for PTSD was satisfied, Dr Wong had the account given by the plaintiff[143] but did not have the benefit of the photographs showing the setting and the games being played. When shown the photographs, Dr Wong did hesitate as to whether the plaintiff’s falls satisfied Criterion A although, with reflection, he maintained that the criterion was still satisfied because the plaintiff had fallen 3 times. Dr Wong was a fair minded expert, and his credibility and reliability as an expert was not affected. 94.If the court was minded not to accept his diagnosis of PTSD, then the court should find that she did suffer some symptoms of PTSD, namely, intrusively re-experiencing the event, experiencing “avoidance” and “numbing”, insomnia, impaired concentration, feeling anxious with hand tremors, profuse sweating and palpitations and which impaired her social and occupational functioning. 95.The plaintiff was not malingering. Dr Yu did not seriously dispute Dr Wong’s opinion that, in the plaintiff’s case, “the resultant low mood (with consequent negative thinking) amplified and exacerbated the existing painful perception. The pain is thus perceived as more intense. Such intensified pain could further worsen the depressive mood. The worsened depressed mood then might lead to more exaggeration of the painful perception. Thus a vicious cycle is set-up”[144]. 96.Dr Wong diagnosed the plaintiff as suffering from MDD, single episode, severe with psychotic features, which, after treatment had been remitted to MDD, single episode, moderate, and he did not think that the plaintiff suffered from Adjustment Disorder, as Dr Yu opined. 97.Dr Wong’s approach and reasoning was more considered and holistic. As he had said in evidence, he carefully studied the reports and took into account the diagnoses of all treating psychiatric doctors. Dr Yu reasoned that Dr Paul Lam had not diagnosed her as suffering from MDD. However, in the report Dr Yu did not dispute Dr Wong’s opinion that “[the] multiple medications prescribed by all her psychiatrists are appropriate for an episode of Depressive disorder of moderate to severe intensity but is too large a dose for Adjustment disorder”[145]. In cross examination, Dr Yu tacitly agreed with Dr Wong’s such opinion but quickly related an incident that he heard about in which the claimant had in fact not taken the prescribed drug. When pressed, he agreed that, in the present case, there was nothing to indicate that the plaintiff had not taken those medications. 98.All treating psychiatrists – Dr Paul Lam, Dr Kathy Chan[146] and the Department of Psychiatry of Pamela Youde Nethersole Eastern Hospital[147] had diagnosed the plaintiff as suffering from MDD and had been treating the plaintiff thus since early 2015. Dr Wong’s diagnosis of MDD, as supported by and consistent with the diagnoses all treating psychiatrists, ought to be accepted. The plaintiff also relied on the documented plaintiff’s significant weight loss, sense of anxiety, and negative side effects from drugs as objective evidence that supported Dr Wong’s opinion and proved that she was not a malingerer[148]. Tata HK’s Submissions on the Psychiatric Evidence[149] 99.Tata HK invited the court to prefer the evidence of Dr Yu. Although it was not suggested that Dr Wong was untruthful or deliberately unhelpful, his approach was more of a treating psychiatrist than an objective and analytical expert. During cross-examination, when asked about the importance of reliability of the patient’s complaints, Dr Wong agreed but said:
and slightly later in the cross-examination:
100.When cross-examined about the first criteria for PTSD (i.e. “exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity”[152]), Dr Wong, under cross-examination:
101.However, having accepted that Criterion 1 for PTSD was objective, it was apparent later on in the cross-examination that Dr Wong’s diagnosis of PTSD was made on the basis of his understanding, not of the event itself but rather his understanding of the plaintiff’s subjective perception of the event. Thus:
Yet despite the above, in re-examination, Dr Wong maintained his diagnosis of PTSD. Thus:
102.Tata HK submitted, with all due respect to Dr Wong, and quite apart from his complete failure to consider the inconsistencies of the plaintiff pointed out in §47 above, his diagnosis of PTSD was not simply an erroneous opinion, it was in fact untenable and demonstrated a fundamental misunderstanding of what PTSD actually was. 103.For PTSD to be diagnosed all the criteria must be satisfied. Criterion 1[159] is:-
This was clearly an objective and not a subjective test. 104.The examples given[160] included military combat, and violent personal assault (sexual assault, physical attack, robbery, mugging, torture, natural or manmade disasters, severe automobile accidents). 105.Dr Wong accepted in cross-examination that “other threat to one’s physical integrity” did not refer to death or serious injury (otherwise the words would be superfluous) and agreed that they covered other examples such as being taken hostage, incarceration in a concentration camp etc.[161] 106.Tata HK submitted that on no responsible basis could it seriously be suggested that the game of Mini-Legs or the plaintiff’s involvement in that game met Criterion 1 for PTSD. Dr Wong, as was clear from the cross-examination, applied the wrong test, he applied a subjective test and not the required objective test. 107.In respect of the diagnosis of PTSD, Tata HK submitted that Dr Wong’s opinion should be rejected. 108.It was further submitted that it is clear that the symptoms claimed by the plaintiff were in grossly in excess of what would be expected from exposure of the accident and its aftermath; and that the present case was a classic example of Adjustment Disorder with Depressed Mood which was Dr Yu’s diagnosis[162]. 109.In the joint psychiatric report, Dr Wong was at pains to stress:
Yet it appeared that Dr Wong’s starting point was not to test the reliability of what the plaintiff was saying, but rather to presume it was correct. Thus:
Further, in the joint psychiatric report, Dr Wong did not comment or refer to or consider any of the mass of inconsistencies and exaggerations which could not be disputed. Thus, he appeared to have completely ignored:
110.The complete failure by Dr Wong to consider the matters set out in §109 above also undermined Dr Wong’s diagnosis of PTSD, even in the absence of his failure to recognize that Criterion 1 was objective and not subjective. The failure was also fatal to his diagnosis of MDD, as Dr Wong (correctly) accepted that “the credibility of Miss Lai’s account is of utmost importance” and “consistency is the core of liability”[168] applied equally to the diagnosis of MDD. Indeed, in re-examination, or rather questions asked by the court, it was apparent, in the light of all the inconsistencies and exaggeration that had been put to him during cross-examination, that in respect of MDD, Dr Wong had real concerns about his diagnosis. Thus:
Discussion and Findings 111.As I have stated above, during the course of the plaintiff’s evidence, I formed the impression that the plaintiff was intelligent and articulate. She was able to smile appropriately and did not look to me to be depressed when she agreed that the Teambuilding was meant to be fun[170]. She also smiled when she denied the suggestion made to her that she was guilty of game playing[171]. The suggestion was rightly put. I find that she was, indeed, game playing. I have already found that she grossly exaggerated the manner in which Verma’s Team played the game of Mini-Legs, when she suggested that Verma adopted a 3 tier human pyramid. I have also found that she grossly exaggerated the manner in which she fell, when she recounted the accident to the many doctors who had examined and treated her, and that she did so in order to give the wrong impression that she fell from a greater height than 3 feet. She also gave untruthful evidence when she adopted her witness statement as her evidence in chief in which she had stated that “[in] view of Dr Chow’s proposal, I had tried to contact Ho Sau Lan and see if I could be arranged to resume my original duties pursuant to Dr Chow’s recommendation. However, I did not receive any response nor was any arrangement made.”[172] Dr Chow’s recommendation, made in October 2014, was that she return to work working only half a day in the mornings[173]. During cross-examination[174], the plaintiff was taken to the exchange of emails between herself and Ho[175]. These emails showed not only that Ho did respond to the plaintiff’s request and, indeed, chased her up, but also that a medical appointment was made, and not kept, and that when a further appointment was offered, it was the plaintiff who put that appointment off[176]. The plaintiff was game playing. She had stopped work on 18 October 2012 and had no intention of returning to work. 112.I do not accept the plaintiff’s submissions which I have quoted above. The plaintiff has confused the duty of an expert to conduct a forensic evaluation with the court’s function to make findings of fact. After a forensic evaluation an expert may conclude that the plaintiff was exaggerating and malingering. The court, after trial, may find as a fact that the plaintiff was genuine and not a malingerer. In such an event, the court will not accept the opinion of the expert. And if the court makes a finding that the plaintiff was exaggerating and malingering, it would have little difficulty accepting the evidence of the expert. I also do not accept the submission that Dr Yu prejudged the plaintiff as being untruthful. 113.I accept Tata HK’s submissions which I have quoted above. For the reasons set out in those submissions, I prefer the opinions of Dr Chun and Dr Yu. I find that the plaintiff is a malingerer and grossly exaggerated her injuries and symptoms. I was impressed by and I accept the evidence of Dr Yu that even her treating doctor, Dr Paul Lam Tat Chung, who is a very experienced psychiatrist, did not diagnose MDD. I do not accept the opinion of Dr Wong that the plaintiff fulfilled Criterion 8 for MDD – diminished ability to think or concentrate[177]: the plaintiff displayed intelligence and was articulate in her evidence before me and fielded the many difficult questions that were put to her. 114.Dr Wong was of the opinion that the medications she was prescribed were appropriate for depressive disorder of moderate to severe intensity but too large for adjustment disorder[178]. The opinion of Dr Yu was that a patient who exaggerated his or her symptoms to the psychiatrist would not take the medication prescribed to the patient[179]. I do not accept the plaintiff’s criticism of this opinion. The fact that medications were prescribed for severe depression does not prove that the plaintiff was not exaggerating her symptoms. I do not accept Dr Wong’s diagnosis of MMD, just because, as the plaintiff submitted, it was supported by and consistent with the diagnoses all treating psychiatrists:[180] treating doctors do not perform a forensic evaluation that an expert, engaged to render an opinion to assist the court, has to perform. 115.I also do not accept the plaintiff’s submission that the documented plaintiff’s significant weight loss, sense of anxiety, and negative side effects from drugs supports Dr Wong’s opinion and proved that the plaintiff was not a malingerer.[181] The weight loss is not directly probative on the issue. Neither is the plaintiff’s documented anxiety which I am sure is felt by every litigant who has brought proceedings. In the light of all the other evidence I have relied upon to make my findings, I am not swayed by the fact that she did actually take some of the medications prescribed to her, and suffered side effects as a result, to conclude that she was not a malingerer. My assessment of damages 116.For the superficial (subcutaneous) contusion of the sacro-coccygeal and left buttock region and the mild adjustment disorder with depression that she suffered from as a result of her fall, I assess damages for PSLA in the sum of $150,000[182]. As she has received a substantial advance payment in excess of this sum before the service of the writ, I would not award any interest on this amount. 117.The plaintiff was entitled to sick leave for 4 weeks for which I would assess damages for loss of earnings in the sum of $45,075[183]. I do not accept the plaintiff’s submission that Dr Chien and Dr Chow being eminent practitioners, Dr Fu’s opinion endorsing the treating doctors’ sick leave should be preferred. An expert medical witness will adopt a forensic approach in his evaluation, which a treating doctor does not adopt. 118.I would also assess special damages in the sum of $50,000, which was conceded by Tata HK. 119.As the plaintiff has received a substantial advance payment in excess of these amounts of $45,075 and $50,000, I would only award interest at the rate of 4.0625% per annum on the total amount of $95,075 from the date of the accident until the date of receipt of an advance payment in the amount, or greater than the amount, of $95,075. 120.As the amount of advance payment in the sum of $1,343,808 was substantially in excess of the amounts I have assessed as damages and interest thereon, I would not have awarded any damages in this case even if I had found in favour of the plaintiff on liability. Costs Order Nisi 121.This action is dismissed. I make a costs order nisi that the plaintiff pays the costs of the action to Tata HK, to be taxed, if not agreed, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.
Mr Chan Kam Chuen, instructed by Tang & Lee, assigned by Director of Legal Aid, for the plaintiff Mr John Bleach SC and Mr Leon Ho, instructed by John C H Suen & Co, for the defendant [1] [G/745-746] The trial bundles comprised 6 bundles: A, B, C&D, E, F and G. [2] [G/742] [3] [G/693] [4] [D/381] [5] [G/661-664] [6] [G/689-699] [7] [B/190-197] [8] [G/690, 693-694] [9] [G/693-694] [10] [B/114 §17] [11] [B/191-192] [12] [C/324] [13] [C/323] [14] [B/115-121 §§20-32] [15] Transcript of 1 March 2019 at p60K-S [16] Transcript of 4 March 2019 at pp.84R-85D [17] Transcript of 4 March 2019 at pp.86D-T [18] [B/177 at §7] [19] Transcript of 5 March 2019 at pp.167M-168N [20] [B/190, 191, 194 and 196] [21] Transcript of 5 March 2019 at pp.168N-169K [22] [B/190-197] [23] [B/196] [24] [B/194] [25] [B/194] [26] [B/194] [27] Transcript of 5 March 2019 at p.198B-C [28] Transcript of 5 March 2019 at p.204M-P [29] [B/151-163] [30] [B/243-264] [31] [B/247] [32] [B/243-244] [33] Transcript of 5 March 2019 at pp.137F-138H [34] Transcript of 5 March 2019 at pp.129O-130A [35] [B/250] [36] [[B/247] [37] [B/155-158] [38] [B/164, 169-175] [39] [B/247] [40] [B/171-172] [41] Transcript of 5 March 2019 at pp.173O-174C [42] Transcript of 5 March 2019 at pp130S-132A [43] [D/390 at §86 and D/392 at §93] [44] [G/660-1 and G/837] [45] [B/117 §25] [46] [B/280-312] [47] [B/285, 285-1] [48] [B/285] [B/296, 296-1] Transcript of 1 March 2019 at p31B-D [49] Transcript of 4 March 2019 at pp88C-89E [50] [B/296, 296-1] [51] [C/330] [52] [C/332 at §10] [53] [E/461] [54] [E/610] [55] [D/409 at §19] [56] [D/370 at §3] [57] Transcript of 4 March 2019 at p87B-M [58] [B/296, 296-1] [59] Transcript of 4 March 2019 at p83K-U, pp.86Q-87B [60] Transcript of 4 March 2019 at p84O [61] Plaintiff’s closing submission p.5 §27 [62] Munkman on Employer’s Liability (16th ed.) at §§2.67 to 2.71. [63] Plaintiff’s closing submissions p10 §48 [64] Plaintiff’s closing submissions pp10 - 12 §§48- 65 [65] (1984) 154 CLR 672 [66] [1987] AC 906 [67] [A/43 §3.1] [68] [A/43 §3.2] [69] [A/43 §3.3] [70] [A/41 §2.11] [71] [A/68 §2.4.5] [72] [A/69-70 §5] [73] [D/423 §56(h)] [74] [D/420-421§51-55] [75] [C/324] [76] [C/323] [77] [C/327, 329] [78] [D/372-381] [79] [C/350] [80] [C/345-346] [81] [C/347-348] [82] [C/350-351] [83] [D/387-390] [84] [C/345-346] [85] [C/347-348] [86] [C/355-357] [87] [C/361-368] [88] [C/367-368] [89] [D/369-405] [90] [D/370 §1] [91] [D/382-383] [92] [D/383 §61(1)] [93] [D/384 §63] [94] [D/385 §66] [95] [D/385 §67(vi)] [96] [D/383, 384 §62] [97] [D/390 §86, D/392 §93] [98] [D/390, 391, 393 §§88-89, §95] [99] [D/393 - 395 at §§96-100] [100] [C/393 §94] [101] [D/393 § 95] [102] [D/375 §24(vi)] [103] [D/393 §95] [104] [C/324] [105] [C327 and 329] [106] [D/396 §106] [107] [D/393-395 §§96-100] [108] [C/396 §106] [109] [D/397 §108] [110] [D/394 §98] [111] [D/397 §109] [112] [D/402 §115] [113] [D/402 §117] [114] [D/406] [115] [D/425 §58] [116] [D/420-421 §51] [117] [D/435 pp74, 75(b)] [118] [D/436 §§78, 82] [119] [D/425 §58] [120] [D/425-456] [121] [C/430 §65] [122] [C/435 §75] [123] [C/437 §83] [124] [C/437 §86] [125] [D/432 §69] [126] [D/423 §56(h)] [127] [D/421 §55(c)] [128] [D/423 § 56(f)] [129] [D/369-405] [130] [D/419 §44] [131] [D/421 §55(b)] [132] [D/422 §56(a)(ii)] [133] [D/422 §56(a)(iii)] [134] [D/422-423 §56(c)(i)-(iv)] [135] [D/423 §56(e)] [136] [D/423 §56(g)] [137] [E/572] [138] Transcript of 7 March 2019 p.293F-U [139] Transcript of 7 March 2019 p.310F-H [140] [E/608-616] [141] Transcript of 7 March 2019 p.323O-328K [142] Plaintiff’s closing submissions at §§98-99 and reply submissions at §§15-27 [143] [D/409 §19] [144] [D/437 §83] [145] [D/434 §72(e)] [146] [C/361-363 §§8 and 11] [147] [C/367-368] [148] Plaintiff’s closing submissions at §§76-91 [149] Tata HK’s closing submissions §§85-90 [150] Transcript of 6 March 2019 p.242B-D [151] Transcript of 6 March 2019 p.246E-K [152] [D/455-8] [153] Transcript of 6 March 2019 p.229B-C [154] Transcript of 6 March 2019 p.230B-C [155] [D/455-8] [156] Transcript of 6 March 2019 p.231K-U [157] Transcript of 6 March 2019 p.236L-238B [158] Transcript of 6 March 2019 p.282I-283D [159] [D/455-8] [160] [D/455-8] [161] Transcript of 6 March 2019 p.228C-E [162] [D/421 at §§52-55] [163] [D/435 at §74] [164] [D/435 at §75(b)] [165] [D/425 at §58] [166] [C/332 at §10] [167] Transcript of 6 March 2019 p.244P-R [168] [D/435 §§74-75] [169] Transcripts of 6 March 2019 at pp.282Q-283U [170] Transcript of 1 March 2019 at p55M-P [171] Transcript of 4 March 2019 at p103K-O [172] [B/131 §57] [173] [E/559] [D/417 §37] [174] Transcript of 4 March 2019 at pp.98E-104G [175] In chronological order: G/781-1, 781-2, 781-3 to 781-5, 781-6, 781-7, 781-11, 781-10, 781-9 and 781-8 [176] [G/781-8] [177] [D/427 §61(g)] [178] [D/434 §72(e)] [179] Transcript of 7 March 2019 at pp.315J-317I [180] In fact Dr Paul Lam Tat Chung did not diagnose MDD. [181] Plaintiff’s closing submission at §§75-86 [182] Chiu Man Chi v. Motorola Asia Pacific Ltd HCPI 150/2011, 16 March 2016; Pak Siu Hin Simon v. J V Fitness Ltd HCPI 574/2014, 15 May 2017 [183] Plaintiff’s closing submissions at §106. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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