Yuen Ka Ho v. Wong Chin Man and Others

HCPI 751/2018

[2022] HKCFI 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 751 OF 2018

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BETWEEN

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Before: Deputy High Court Judge To in Court

Date of Trial: 9 February 2022

Dates of Closing Submissions: 23 February 2022, 8 March 2022

Date of Judgment: 6 May 2022

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J U D G M E N T

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INTRODUCTION

1.This is a personal injuries action in which the Plaintiff sues the defendants for damages for personal injuries suffered in a traffic accident in Lok King Street outside Fotan MTR station on 15 August 2015.

2.The Plaintiff and his superior, the First Defendant (“D1”), are employees of the Second Defendant (“D2”). At the material time, the Plaintiff was seating on the front passenger seat of a seven seater private vehicle, registration number LP6304 (“LP6304”), driven by D2 on their way to pick up some other colleagues in Fotan, in the course of their employment. The Third Defendant (“D3”) was the driver of a public light bus bearing registration number MA777 (“MA777”). The Fourth Defendant (“D4”) is the owner of MA777.

3.It is not disputed that at around 9:00 am on that day, the Plaintiff arrived in LP6304 driven by D1 near the pick-up area outside exit A and C of Fotan MTR station intending to pick up their other colleagues for work. The pick-up area was fully occupied. At the time, a taxi was signalling right to pull out from the pick-up area. D1 stopped LP6304 and put on the hazard warning lights waiting for its turn to move into the pick-up area. While waiting, MA777 driven by D3 hit the rear of LP6304 from behind damaging its right rear bumper and boot door. A report was made to the police. At the scene, no one complained about having been injured. D2 and D3 reached a settlement agreement in respect of the damage to LP6304. Then, the Plaintiff, D1 and their colleagues left the scene and continued their journey to their construction site. No prosecution was instituted against D1 or D3.

4.Two days after the accident, the Plaintiff started to complain about back pain. On 18 July 2018, he commenced the present action against the four defendants seeking common law damages for personal injuries suffered as a result of the accident. On 17 July 2019, he and D2 reached settlement in the parallel Employees’ Compensation proceedings (the “EC proceedings”) in the sum of $1,277,400.

5.Initially, D1 and D2 on the one part and D3 and D4 on the other were separately represented. On 3 January 2022, solicitors for D3 and D4 filed a notice to act for D1 and D2 as well. At the hearing, Mr Cheng, counsel for the Defendants, admitted liability on behalf of D3 and D4. Judgment on liability was entered against them with damages to be assessed. Thereupon, the Plaintiff discontinued his action against D1 and D2, but sought a Sanderson or Bullock Order that D3 and D4 pay the costs of D1 and D2. The issue of costs was reserved. The outstanding issues before this Court are quantum as between the Plaintiff and D1 and D2 and costs among the parties.

QUANTUM

Introduction

6.The Plaintiffs makes a total claim of $5,215,864 including $300,000 for pain, suffering and loss of amenities (“PSLA”), pre-trial loss of earning and mandatory provident fund (“MPF”) of $1,360,900, loss of earning capacity of $162,000, loss of future earning and MPF of $3,284,064 and special damages of $110,000. He will give credit to the sum of $1,277,400 received under the EC proceedings.

7.On 23 May 2019, the Employees’ Compensation (Ordinary Assessment) Board assessed his injuries and certified that he suffered from back injury resulting in (a) back pain, left lower limb pain and numbness, and (b) urinary incontinence and bowel incontinence at 11.5%.

8.On 22 November 2018, more than three years after the accident, the Plaintiff attended a joint examination by his orthopaedic expert Dr Chan Wai Fu (“Dr Chan”) and by D1’s and D2’s expert Dr Peter Ko Put Shui (“Dr Ko”). At the time, he was still attending outpatient treatment and renewing his sick leave certificates until thirteen months after that joint examination. The experts prepared a joint expert report dated 12 February 2019. The parties agreed that the joint expert report be admitted as evidence without calling the experts.

The accident and the Plaintiff’s evidence

9.The Plaintiff was 29 years of age at the time of the accident. He was an engineering assistant in the employ of D2. He had to attend and work at site for 90% of his time. His duties included moving heavy equipment and materials. He spent 10% of his time in office dealing with documentation.

10.It is common ground that at the time of the accident, the Plaintiff was sitting on the front passenger seat of LP6304 with his back resting against the seat and was wearing safety seat belt and that LP6304 was stationery when it was hit from behind. There is no dispute that D1 was similarly seated on the driver seat and wearing safety belt but suffered no injury. LP6304 was hit by MA777 near the middle to the right of the boot. As shown by the photographs taken at the scene, the damage caused to LP6304 was minor.

11.After the accident, the Plaintiff alighted from LP6304 and stood on the pavement waiting for the police. He took photographs of the vehicles. He did not suffer any pain at the time. After the police had completed the procedures at the scene, he, D1 and their colleagues proceeded to their site to work. He left the site between 12 noon and 1 pm. He handled documentation that day. He had heard from D1 and/or his colleagues that he should make a report to the police within a week if he suffered any personal injury arising from the accident. He never reported his personal injury to the police.

12.On the morning of 17 August 2015, ie two days after the accident, the Plaintiff felt gradual increase in pain in his waist. He attended the Accident and Emergency Department (the “AED”) of Yan Chai Hospital for treatment. He was subsequently referred to more than ten specialist departments in hospitals and clinics for follow up action, including the Department of General Practice of Yan Chai Hospital, Tsuen Wan Adventist Hospital, Lady Trench General Out Patient Clinic, Mrs Wu York Yu General Out Patient Clinic, Ha Kwai Chung Polyclinic General Out Patient Clinic, Physiotherapy Department, Occupational Therapy Department, Department of Anesthesia, Department of Surgery of Princess Margaret Hospital, a general practitioner and possibly a chiropractor.

13.He consistently complained about lower back pain and weakness in his left leg. Six months after the accident, he started to suffer urinary and bowel incontinence. For the six years since the accident until the date of his latest witness statement dated 24 January 2022, he had suffered altogether urinary and bowel incontinence on about four occasions.

14.Since the second day after the accident until February or March 2021, the Plaintiff was feeling severe pain in his waist and had to take analgesic. His pain increased when the weather turned cold or rainy. He felt numbness in his left leg and had difficulties walking. He had to walk with the aid of a walking stick. Before going to bed every night, he felt tired and painful in his waist and often had difficulties sleeping. He felt helpless and suffered mentally. His conditions never improved.

15.It was only until the end of December 2019 that he ceased seeking following up treatment and sick leave. But his pain continued. In May 2020, he turned to Au Chun Nam whom he described as a pain expert for treatment of his pain. Au Chun Nam’s credentials are not known. He is possibly a chiropractor. The Plaintiff received massages from Au Chun Nam and performed exercises to strengthen his body. His condition improved in February or March 2021. He can walk unaided. He no longer carries his walking stick in his backpack. The frequency of sudden pain in his lower back has reduced, so has the effect of change of weather condition. He had no incident of incontinence, but still has seepage of urine during the day or at night. He last received treatment from Au Chun Nam in October 2021. Before the accident, he used to participate in sports such as swimming, jogging, cycling. He has to give up those activities because of the pain.

16.The Plaintiff was given 1,363 days’ sick leave by various doctors and clinics from 17 August 2015 to 18 December 2019.

The medical experts’ evidence

17.The Plaintiff attended the joint expert examination on 22 November 2018, more than three years after the accident. Quite contrary to what he said in his witness statement, during the examination he was able to walk without a stick though with a limping gait. It was noted in his occupational therapy work rehabilitation assessment[1] that he was able to walk unaided as early as 6 December 2016 two years ago. That is very inconsistent with his evidence that up until March 2021 (28 months after that joint examination) he had to walk with a walking stick. These assessments demonstrate he is a grossly exaggerating witness.

18.The Plaintiff complained about continuous back and left buttock pain radiating to the left thigh. The pain was more severe when walking for more than 30 minutes, standing for more than 10 to 15 minutes, sitting for more than 20 minutes and lying or sleeping in bed for more than 10 minutes. He had to adjust his position when sleeping. He complained of sudden weakness causing his left leg to give way. He could not lift weight of more than two to three cans of soft drink because of his back pain. He also complained about urinary and bowel incontinence which started about six months after the accident.

19.Both experts agreed that the X-ray photographs taken at the joint examination show that the alignment of the lumbo-sacral spine was satisfactory and the intervertebral disc spaces were not narrow; that the Plaintiff’s symptom of incontinence are medically inexplicable; and that he has reached maximal medical improvement by the time of joint examination. Thus, there is no objective medical evidence to support the Plaintiff’s claim of severe pain, disability and incontinence.

20.Despite the above agreement, there is no unanimity in the experts’ opinion. Dr Chan diagnosed the Plaintiff as suffering from back injury with soft tissue injury and subsequent prolapsed disc at L5/S1 position and opined that the diagnosis was compatible and consistent with the mechanism of injury. The sole basis of Dr Chan’s opinion is the opinion of a general practitioner of finding of a prolapsed disc at L5/S1 position; but that finding is unverified or unverifiable (see below).

21.Dr Ko disagreed with Dr Chan’s diagnosis because there is no medical evidence of any disc prolapse at L5/S1 position. He noted the Plaintiff’s complaint of lower limb weakness and incontinence. He also noted that throughout the years the Plaintiff had consistently complained to various doctors and clinics of radiating symptoms to the lower limbs with sense of numbness. But he did not diagnose the Plaintiff as suffering from those symptoms because they were not supported by medical ground or anatomic, pathologic or organic explanation. He only diagnosed the Plaintiff as suffering from uncomplicated soft tissue low back sprain injury.

22.Dr Ko’s opinion is supported by the X-ray photographs and MRI of the Plaintiff’s lumbar spine taken in October 2015 (the “2015 MRI”). The X-ray photographs show that the alignment of the lumbo-sacral spine was satisfactory and the intervertebral disc spaces were not narrow. The 2015 MRI had been examined by Dr Wong Yik, a specialist in radiology. Dr Wong Yik found that the vertebral bodies show normal signal intensity and outline and there was no evidence of vertebral body fracture. He found the signal intensity and the height of the disc at L5/S1 level is normal and there was no evidence of bulge or protrusion. He concluded as follows:

“Unremarkable study of MR lumbar spine. No MR evidence of disc protrusion is noted. No significant bone bruise is noted in the lumbar vertebrae.”

Dr Wong Yik did not find there was prolapse disc at L5/S1 level. On the basis of Dr Wong Yik’s opinion as an expert radiologist, Dr Ko opined that there is no anatomic, pathological or organic explanation for the symptoms to the lower limbs as complained by the Plaintiff.

23.The only evidence of prolapse at L5/S1 relied on by Dr Chan is contained in a letter dated 15 August 2016 by Dr Wong Pit See (the “2016 MRI”), a private general practitioner. In the letter, he certified as follows:

“Due to persistence of symptoms MRI of the back was repeated again in May 2015 (sic). Result of this MRI examination showed prolapsed disc at L5/S1 without nerve root impingement. Due to positive findings, more aggressive medication treatment by me was carried out.”

24.It appears that Dr Wong Pit See had ordered an MRI examination. But unlike the 2015 MRI, his letter or his finding of prolapse disc is not supported by any report or opinion by a radiologist. Dr Wong Pit See is not a radiologist or orthopaedist. That does not mean his opinion as a general practitioner is to be disregarded. However, his opinion could not be verified by the experts. Apart from the absence of a supporting report or opinion from a radiologist, the MRI film was not even made available to the experts for verification. This deficiency adversely affects the weight to be given to Dr Wong Pit See’s opinion.

25.More importantly, the 2015 MRI which showed no abnormality and no prolapse disc at S5/L1 position was taken about two months after the accident while the 2016 MRI was taken half a year later. The finding of no prolapse disc in the 2015 MRI is incontrovertible. There is also nothing to suggest that the Plaintiff suffered a trauma in between the taking of the two MRIs or that his spine was suffering a degenerating condition. This suggests that the prolapse, if there is one, was created eight months after the accident or it could have been a mis-diagnosis by a non-specialist. That is why verification by examining the 2016 MRI film is important. Dr Wong Pit See was the Plaintiff’s treating doctor. Even if the Plaintiff did not call Dr Wong Pit See to testify, he could have produced the MRI film or the report of the radiologist who had examined the MRI film, if there was such an examination, so that Dr Wong Pit See’s opinion could be verified. But he did not.

26.However, Mr Wong placed great weight on Dr Wong Pit See’s opinion and submitted that Dr Ko’s opinion was not justified. The problem with Dr Wong Pit See’s opinion is not that he is only a general practitioner and not an expert in orthopaedic or radiology, but that it could not be verified. I prefer the opinion of Dr Ko. I can see no justification why a solid opinion by an expert orthopaedist supported by the expert opinion of a radiologist should be deferred to the unverified and unverifiable opinion of a general practitioner. It deserves more weight. I reject Dr Chan’s opinion as not being supported by evidence. Actually, his opinion is contrary to the incontrovertible evidence of the 2015 MRI. Furthermore, the 2016 MRI could not explain the symptom allegedly suffered by the Plaintiff because even according to Dr Wong Pit See there was no nerve root impingement arising from the prolapse.

27.Mr Wong also relied on the Plaintiff’s seeking treatment from Au Chun Nam as corroborating evidence of his pain. The Plaintiff said he attended about 30 sessions of treatment from Au Chun Nam whom he described as a pain specialist. There is no evidence what Au Chun Nam’s credentials are. The Plaintiff did not describe him as a practitioner of western medicine. He produced no receipts which would have indicated Au Chun Nam’s credentials. He said he did not retain the receipts as he did not realise that the expenses would be reimbursed. The problem is there is no way the Court could assess the weight to be given to Au Chun Nam’s diagnosis, let alone the credibility of the Plaintiff’s evidence that he had received treatment from Au Chun Nam and the effectiveness of that treatment.

28.Mr Wong argued that Dr Ko’s diagnosis of the Plaintiff’s pain problem is not justified because Dr Ko is not a pain expert or the treating doctor. With respect, I can see no reason why Dr Ko’s opinion about pain which is a subject within his expertise and which opinion is based on the expert opinion of a radiologist on an MRI film of the site of pain should be deferred to that of an opinion of someone with unknown credentials. Besides, Au Chun Nam had not even given a witness statement. There is no evidence of what Au Chun Nam’s diagnosis was and the basis of his diagnosis. In all probabilities and at the highest Au Chun Nam acted on the Plaintiff’s assertion of pain only. I give the Plaintiff’s evidence about the treatment he received from Au Chun Nam very little weight.

29.I find Dr Chan’s opinion superficial and unreliable. There is no basis for his finding of a prolapse disc at S5/L1 position on which his opinion is based. His reliance on the opinion of a general practitioner without verifying it against a radiologist report or his personal examination of the MRI film was rather bold and irresponsible. Despite the Plaintiff’s symptoms were not supported by medical reasoning or objective evidence, he took all of them for granted without considering their credibility. He simply endorsed the Plaintiff’s complaints with his professional qualification. He appeared to have adopted the position of the Plaintiff’s advocate and forgotten his duty owed to the Court as expert. I give no weight to his opinion.

30.On the other hand, I find Dr Ko’s opinion well-considered. It is free of the defects I found in Dr Chan’s. He examined the evidence thoroughly and gave convincing reasons for his opinion. Unlike Dr Chan, he did not take the Plaintiff’s symptoms for granted. He tested the Plaintiff’s complaints against objective medical evidence and common sense and exercised his professional judgment. He found the Plaintiff exaggerating. The Plaintiff was examined three years after the accident. It is common ground between the two experts that the Plaintiff has achieved maximum medical improvement. Yet, the Plaintiff still gave a full list of complaints, which Dr Ko described as “far beyond the magnitude of the injury and trauma that he sustained on 15 August 2015”. He opined that “physical examination showed typical and full blown features of heavy exaggeration and magnification with heavy features of inorganic elements”. He found that Waddell’s stimulation signs were strongly positive in all the manoeuvers showing heavy degree of elements, be it intentional or non-intentional. He concluded that the Plaintiff could not have suffered more than a low energy soft tissue uncomplicated sprain injury to the low back region. The accident and my analysis of the Plaintiff’s evidence also support Dr Ko’s opinion. I accept his opinion. I find that the Plaintiff suffered uncomplicated soft tissue low back sprain injury and that his alleged symptoms are not supported by medical evidence.

The sick leave certificates

31.The Plaintiff was given a total of 1,363 days of sick leave by various treating doctors of public hospitals, mostly of the Hospital Authority. The Employees’ Compensation (Ordinary Assessment) Board allowed the Plaintiff the statutory maximum sick leave of three years. Dr Chan supported the Plaintiff’s claim for sick leave as he considered the opinions of the treating doctors are appropriate. Dr Ko opined that six to eight months adequate and acceptable for the indicated treatment, investigation and rehabilitation. Mr Wong submitted that the opinions of the treating doctors should be respected. He criticised Dr Ko for not giving a full explanation on why he did not follow the assessment of the Board in his assessment of the appropriate duration of sick leave. On the other hand, Mr Cheng submitted that pain is subjective and the Plaintiff had obtained the sick leave certificates by consistently and persistently exaggerating his symptoms to the treating doctors.

32.Though Dr Ko did not actually give an explanation for his assessment of sick leave, the basis for his assessment is amply clear. There was no significant abnormality in the Applicant’s spine, no evidence of disc protrusion and no impingement of the emerging nerve root to support the alleged symptoms. Dr Chan just took the Applicant’s symptoms for granted, despite the absence of medical evidence.

33.It is common knowledge that public hospitals or clinics operate on a very tight schedule. During a consultation, a doctor has to study the patient’s medical history, examine the patient, discuss his symptoms and clinical condition with the patient and advise on his treatment. If a patient requests for sick leave, the doctor would usually take the patient’s complained symptoms for granted and would consistently with the code of practice, issue the certificate. It would be unrealistic to expect the doctor working under a tight schedule to conduct a detailed examination for the purpose of granting the patient sick leave, since such examination is not always practicable or necessary. On the other hand, the experts charged with the duty of assisting the court are in a different position. They have more time to examine the patient and had all the medical evidence necessary for them to advise the court than have the treating doctors. Their primary duty is owed to the court rather than to the patient. Subject to my finding of credibility of the patient, I would give the experts’ opinion more weight than the treating doctor’s. On the totality of the evidence, for reasons as I shall give later I find the Applicant exaggerating. I prefer the opinion of Dr Ko and adopt the lower end of his assessment of sick leave, ie six months.

The WhatsApp communication between the Plaintiff and D2

34.The Plaintiff exhibited a bundle of WhatsApp communications between him and his superiors, namely Fong and Wo on behalf of D2 between February 2018 and January 2022 as evidence of the discussion between him and D2 about resumption of work after his recovery. Mr Wong submitted that the communications show that the Plaintiff had expressed his eagerness to resume work as soon as possible in July 2021 and his employer was desirous of his return. He also relied on the communications as corroborating evidence of the Plaintiff’s medical condition.

35.I do not find the WhatsApp communication supportive of Mr Wong’s argument. The Plaintiff’s 1,363 days’ sick leave expired on 18 December 2019. He said that his condition had very much improved in February or March 2021 after receiving treatment from Au Chun Nam. Yet, in July 2021, he was still dragging his feet when Wo asked if he could resume work. He replied that his conditions had much improved and would resume work as soon as possible; but could not because he feared that might prejudice his pending action and prejudice the interest of D2. That was almost six years after the accident. Any inference that could be drawn is an adverse one against him. The communications also have no probative value in the light of the totality of the evidence and that they are self-serving. In favour of the Plaintiff, I place no weight on the communications.

The injury suffered by the Plaintiff

36.The injuries allegedly suffered by the Plaintiff are summarised in paragraphs 13 and 14. The evidence of the injuries is solely made up of the Plaintiff’s assertions, such as his complaints to the treating doctors, physiotherapist and occupational therapists. It is not supported by any medical or objective evidence. The Plaintiff is the only factual witness. The credibility and reliability of his evidence is at the heart of this case. This is particularly so for the Plaintiff as he bears the burden of proof.

37.How the accident occurred and the damage caused to LP6304 are not in dispute: see paragraph 10. The damage to LP6304 was minor. The force of the collision could not have been great. The Plaintiff was properly seated and wearing safety belt. He was not directly in the line of impact. He was not physically hit. He suffered no pain at the time of the accident. He was able to stand by himself after the accident, wait for police, take photographs of the vehicles and the scene, and resume work without pain for the rest of the day and the following day. By contrast, D1 who was seated next to him and in the line of impact did not suffer any injury. On the above evidence, the Plaintiff most probably suffered no more than a jerk.

38.The Plaintiff’s symptoms of pain surfaced two days later. His problem about incontinence first appeared about six months after the accident. On 17 August 2015, he first attended the AED. On that occasion, it was noted that he walked unaided[2] and his limb power and the readings of the straight leg raising test (“SLR test”) were within normal range, ie between 70^o and 90^o. But, remarkably, when he was examined by the physiotherapist on 25 August 2015, another eight days later, his SLR test readings deteriorated to only 50^o/30^o. On 2 September 2015[3], another week later, the readings turned normal to 80^o/80^o. Then, the readings dropped to only 45^o/45^o. The Plaintiff explained that the variation was linked to the weather. He said he suffered more pain when the weather turned cold or rainy. But he had never told his treating doctors or the experts about the effect of weather condition before.

39.It is remarkable that when he was feeling extreme pain which necessitated his first visit to the AED², he was able to walk unaided. But on his next visit to the hospital on 25 August 2015 until, for example, his visit on 14 March 2017, he was noticed to have walked with a stick slowly[4], putting up an appearance that he was suffering from pain and weakness in his waist and leg. His explanation was that he walked unaided if he did not suffer from sudden pain and he only suffered sudden pain for two to three times a month. But that explanation is inconsistent with his repeated and emphatic evidence that he had continuous back pain up until February or March 2021. In his witness statement dated 6 March 2019, he asserted that he had to walk with a stick like a severely handicapped person. He made no mention in his two statements that the pain only struck him two or three times a month and he could walk unaided most of the time. He was clearly exaggerating in his witness statements. The inconsistencies also demonstrate that his explanations were just convenient excuses made up in the witness box which bear no relations to the truth.

40.The Plaintiff’s evidence is also inherently inconsistent. For example, during his examination on 2 September 2015³, his movement was poor. He walked with a stick slowly, suggesting he was suffering from a sudden pain that day. On the same occasion, he had no problem with the SLR test. It is his evidence that he only refused raising his leg when he felt pain. His performance at the SLR test suggests he was not suffering from pain and the weather was fine. If so, his walking with a stick was most probably a show betrayed by the SLR test. As analyzed above, his evidence bears the hallmark of fabrication and exaggeration.

41.Pain is subjective. There is no device which could objectively measure pain and the degree of pain. The Plaintiff’s evidence has to be tested against medical evidence. There is an underlying cause for most of the pain. Some cause may be identified, some may not. If the cause is identified, the symptom is credible. But that does not mean if the cause is unidentified, the symptom is less credible. It is not impossible for pain to exist without any organic cause or supporting medical evidence, but such occasions are rare. Where the cause cannot be identified, whether there is pain boils down to the issue of credibility which has to be determined on the totality of the evidence.

42.There is no dispute that the accident was a minor one with no direct physical impact on the Plaintiff and D1 sitting next to him on the driver seat at the time of the accident and more directly in the line of the impact suffered no injury. In most probabilities, the Plaintiff only suffered a jerk as a result of the collision. For reasons as explained in my analysis of the experts’ opinion, I prefer Dr Ko’s opinion to Dr Chan’s which is supported by the X-ray photographs and the 2015 MRI. I accept Dr Ko’s opinion that he could not identify any possible cause for the Plaintiff’s symptoms of pain and incontinence. I accept Dr Ko’s diagnosis that the Plaintiff only suffered uncomplicated soft tissue low back sprain injury. His diagnosis is more consistent with the accident. While the standard of proof the Plaintiff has to discharge is the civil standard, to succeed he has to give convincing evidence which commensurate with the circumstances of the accident. The basic test of credibility is inherent probability. Apart from considering demeanour of the witnesses, the court makes its own assessment by testing the witnesses’ evidence against contemporaneous documents, incontrovertible or evidence and particularly the experts’ opinion. The Plaintiff’s complained symptoms or evidence of injury is not supported by Dr Ko, whose opinion I prefer. For reasons as I have already explained, I find the Plaintiff’s evidence inherently inconsistent.

43.Having tested the Plaintiff’s evidence against Dr Ko’s opinion and having regard to the nature of the accident, the minor damage to LP6304, the inherent inconsistencies in his evidence, I found the Plaintiff an incredible and exaggerating witness. I do not accept his evidence that he suffered the degree of pain and weakness in his leg and incontinence as he alleged. Furthermore, even on his own evidence, the alleged symptom of incontinence only occurred six months after the accident. If he did suffer from that symptom, he has failed to show it was related to the accident. I accept Dr Ko’s diagnosis that the Plaintiff only suffered uncomplicated soft tissue low back sprain injury which required no more than six months to recuperate. The Plaintiff exaggerated his symptoms.

Pain, suffering and loss of amenities (PSLA)

44.The Plaintiff complained that he is still suffering from low back pain. Dr Chan assessed his whole person impairment at 3%. Dr Ko assessed it at 1% only. I find the Plaintiff an exaggerating witness. I accept Dr Ko’s diagnosis and his assessment. I shall take this into account in assessing his PSLA.

45.He was given 1,363 days of sick leave by his treating doctors. On the basis of Dr Ko’s opinion, I reduce his sick leave claim to 6 months. Usually the duration of sick leave has a bearing on the award of PSLA. However, as I have found him to be a very exaggerating witness and faking his symptoms, I give little weight to the duration of sick leave in my assessment of PSLA.

46.Mr Wong referred me to three cases and submitted that an award of $300,000 in this case is appropriate. In Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Ltd[5], the plaintiff suffered minor sprain of the soft tissue of the lower back and adjustment disorder with depressive mood. She complained of leg pain and numbness of her sole, but MRI investigation showed no evidence of nerve root impingement. Surveillance video showed that she walked normally and unaided. She was awarded $330,000 for PSLA. Like the Plaintiff, she exaggerated her condition. But, unlike the Plaintiff, in addition, she suffered adjustment disorder with depressive mood, was hospitalised for eight days and awarded three and half years’ sick leave. Despite her exaggeration, she obviously suffered a more serious condition and longer term disability. This case is not a suitable comparable.

47.In Yeung Tai Hung v Hong Kong Baptist Hospital Au Shue Hung Health Centre[6], the plaintiff slipped and fell in the kitchen sustaining a contusion and soft tissue injury to his back. The accident aggravated the his pre-existing degeneration of the lumbar spine. He suffered from adjustment disorder with depressive mood. The Court found he was not an exaggerating witness and awarded him $300,000 for PSLA. This case is obviously distinguishable from the present case in view of the more serious injury.

48.In Shek Kam Ching v Po Kee Construction Engineering Ltd and Others[7], the plaintiff sprained his back while lifting a steel rod weighing 150 to 160 catties with his colleague. He suffered a small prolapsed intervertebral disc at L5/S1. He was granted 26 months’ sick leave. He complained of persistent pain in his lower back and hence decreased job-related strength and tolerance. This case is obviously distinguishable from the present case in that it is not a soft tissue injury case. The plaintiff suffered a prolapsed disc, suffered persistent pain and decreased job-related strength and tolerance and was awarded 26 months’ sick leave. Except for some pain, the Plaintiff suffered none of these.

49.Mr Cheng referred to other soft tissue injury cases in which the court awarded $50,000 to $100,000 for PSLA. In Lai Ka Yin v Chan Yiu Kei[8], the plaintiff suffered soft tissue injury of the neck and back. She was hospitalized for 3 days and given 42 days’ sick leave. She was awarded $50,000 for PSLA. She suffered more serious injury which occasioned three days’ hospitalisation. The Plaintiff had no pain during the first two days after the accident. He was not hospitalised. His complaint of pain started two days after the accident. On the basis of Dr Ko’s opinion, I allowed the Plaintiff six months’ sick leave, which is more than what the plaintiff was allowed in that case. However, in view of his exaggeration, I am not confident in placing weight on his sick leave when assessing PSLA, even though it has been assessed by this Court. I give more weight to the period of hospitalisation and other credible evidence such as Dr Ko’s opinion and the circumstances of the accident. On that basis, his award under this head should be less.

50.In Fazal Ahmed v MTR Corporation Ltd[9], the plaintiff fell on his back and neck. He was hospitalised for three days. He had a pre-existing degeneration of the spine. The court found he had exaggerated his pain which should have subsided in months. The plaintiff was awarded $50,000 for PSLA. Though the plaintiff exaggerated, the court accepted that he had pain lasting for months. I do not accept the Plaintiff suffered such lasting and great pain because he does not have a pre-existing degeneration problem. His award should be less.

51.In Gurung Kamala v Hong Wei Ltd[10], the plaintiff fell and suffered minor soft tissue injury which was resolved in weeks. She also exaggerated her pain. PSLA was assessed at $50,000. This case is a near comparable. A slight distinguishing feature is that the plaintiff suffered immediate pain and was hospitalised for one day.

52.In Wong Chun Kin v Caritas - Hong Kong[11], the plaintiff suffered sprain injury of his lower back. The Court found he had grossly exaggerated his symptom, that any residual pain and discomforts would be very mild and sick leave for a few weeks was sufficient. He was awarded PSLA of $80,000. This case is a near comparable.

53.I consider Gurung Kamala and Wong Chun Kin are near comparables. They involve soft tissue injury and the plaintiffs were given weeks of sick leave. The plaintiffs exaggerated their symptoms. The award to be given depends on the Court’s assessment of the actual degree of pain suffered by the Plaintiff and how long that pain lasted. The pain, if there was any, could have lasted for days, or weeks or months or years; or none at all if it was wholly faked. As explained above, I am not confident in placing weight on his sick leave when assessing PSLA. I give little weight to the duration of sick leave allowed but more weight to the medical evidence and the circumstances of the accident when assessing PSLA.

54.The Plaintiff was a young man at the age of 29 at the time of the accident. According to him, he was healthy and practised sports. The accident was a minor one. He suffered no pain immediately after the accident. He was at least able to continue work that day and the day that followed. He was shown to be an exaggerating witness by Dr Ko. Even three years after the accident, he still exaggerated his symptoms during the joint examination. He faked his symptoms before his treating doctors and before the experts. I have no confidence in his honesty and his evidence. I could only assume he suffered very minor pain. I assess his PSLA in the amount of $10,000 only.

Pre-trial loss of earning and MPF

55.The Plaintiff claimed pre-trial loss of earning in the amount of $1,288,035 represented by his loss of salary and MPF during 1,363 days’ sick leave granted by the various treating doctors.

56.The Plaintiff grossly exaggerated his symptoms and obtained sick leave for 1,363 days from his treating doctors. The Defendants are not liable to compensate him for such grossly inflated loss. I adopt the lower end of Dr Ko’s assessment of his sick leave entitlement of 6 months. The Plaintiff’s pre-accident income was agreed at $27,000. Accordingly, his pre-trial loss of earning and MPF is assessed in the amount of $170,100 (ie $27,000 × 6 × 1.05).

Loss of future earning

57.The Plaintiff has confirmed that this head of claim is no longer pursued.

Loss of earning capacity

58.The Plaintiff’s residual symptoms in his lower back should be minimal. His disadvantage in the labour market should also be minimal. His employer had repeated requested him to resume work which suggests he had no disadvantage in the labour market. However, having regard to the whole person impairment of 1% as assessed by Dr Ko, I assess him nominal loss in the amount of $50,000 under this head.

Special damages

59.The Plaintiff claimed $80,000 for medical expenses; $20,000 for related travelling expenses and $10,000 for tonic food.

60.Having assessed his sick leave entitlement to six months, I allow him medical expenses and travelling expenses for six months only. Accordingly, I assess his medical expenses up to and including 17 February 2016 in the amount of $34,917. He may have incurred a lot of such expenses outside the six months’ period. He may have recovered them in the EC Proceedings. If not, it is a risk or loss he has to bear for faking his symptoms and obtaining sick leave which he would not have been entitled to. The Plaintiff could not produce taxi receipts before 29 April 2016. The Defendant proposed to assess his claim in the amount of $1,200 per month, which I consider reasonable. Accordingly, I assess his travelling expenses in the amount of $7,200. The Plaintiff could not produce receipts for tonic food. Having regard to the nature of the injury, I make no award for tonic food. The award under this head is assessed in the amount of $42,117 (ie $34,917 + $1,200 × 6).

Summary on quantum

61.The total amount of damages is assessed in the amount of $272,217 (ie $10,000 + $170,100 + $50,000 + $42,117) with interest. The Applicant had already received employees’ compensation in the amount of $1,277,400.16 which far exceeded the damages assessed by an amount $1,005,183.16 (ie $1,277,400.16 - $272,217). He is therefore not entitled to damages. Accordingly, his action against the 3^rd and 4^th Defendant is dismissed. The outstanding question is the parties’ costs.

COSTS

Introduction

62.The Plaintiff met with a traffic accident and allegedly suffered some injury for which D3 was primarily and the D4 vicariously liable. He obtained employees’ compensation against his employer, D2. He commenced parallel personal injuries action not only against D3 and D4 as the driver and owner of MA777 which caused the accident, but also against his co-passenger and driver of LP6304 and his employer (D1 and D2 respectively) who were as much victims of D3. On the first day of trial, upon D3 and D4 admitting liability, he discontinued the action against D1 and D2. Judgment was entered against D3 and D4 on liability with damages to be assessed and costs reserved. The Plaintiff argued that he should have costs of the action against D3 and D4 and a Sanderson Order or Bullock Order should be made against the 3^rd and 4^th Defendants for the costs of D1 and D2. Before dealing with these issues, I shall outline a bird’s eye view of this case.

63.The Plaintiff met with a minor traffic accident and suffered a jerk with no apparent physical injury. He claimed he suffered low back pain and weakness of his left leg and incontinence as a result. In the four years that followed, he did not attend work, except for the two days immediately after the accident. He received treatment from more than ten specialist departments in hospitals, outpatient clinics, one private general medical practitioner and a pain specialist of unknown credential. He obtained sick leave for 1,363 days. In the EC Proceedings, he obtained employees’ compensation in the amount of $1,277,400.16, including periodical payments totalling $528,400.16 from his employer. In this action, damages were assessed in the amount of $272,217, which is less than a quarter of the employees’ compensation he had already received. He is therefore not entitled to any damages.

64.The reason for the very low assessment in damages is the Court’s finding that the Plaintiff grossly exaggerated his symptoms. His alleged symptoms were not supported by medical evidence. His evidence was internally inconsistent and externally inherently improbable. The bulk of his claim in damages is based on his loss in earning and MPF during the 1,363 days’ sick leave. Based on Dr Ko’s opinion, the Court only allowed him 183 days, which in the Court’s opinion is already over generous for the alleged injuries. The irresistible inference is that at least in 39 out of the 45 months immediately after the accident he had been faking his symptoms to his treating doctors in order to obtain his sick leave certificates. He must also have faked his symptoms during the first six months so that he could fake his symptoms for the 39 months that followed. He was grossly dishonest.

Costs as between the Plaintiff and D3 and D4

65.Having found that the Plaintiff faked his symptoms, it must necessarily follow that he knowingly instituted these proceedings against the defendants based on false evidence. This is not a case where a claimant failed on a technicality, or point of law or an incorrect assessment of his evidence. He knew his evidence was false as his sick leave was obtained by faking his symptoms. It is an abuse of proceedings to bring an action based on false evidence. The Plaintiff knowingly invoked the machinery of justice in furtherance of a false claim. Such conduct constitutes an affront to the Court’s sense of justice. Taxation of D3’s and D4’s costs on an indemnity basis is justified.

66.The Plaintiff argued that as judgment on liability has been entered against D3 and D4 upon their admission of liability, he should be entitled to costs against them. Initially, D3’s and D4’s position was to dispute liability so that liability and quantum may be disposed of together at trial. The admission was subsequently made to save the parties’ costs and to take D1 and D2 out of the litigation. The fallacy in the Plaintiff’s argument is that judgment was entered for damages to be assessed and the ultimate assessment is that he failed in proving damages. Accordingly, the Plaintiff’s action against D3 and D4 is dismissed with a costs order nisi that he shall pay D3’s and D4’s costs to be taxed on indemnity basis; while the Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

Costs as between the Plaintiff and the 1^st and 2^nd Defendants

67.Usually, if a plaintiff discontinues his action against the defendant, he has to pay the defendant’s costs. Here, upon D3 and D4 admitting liability, the Plaintiff discontinued the action against D1 and D2 and sought a Sanderson or Bullock Order that D3 and D4 as the unsuccessful defendants pay the costs of D1 and D2 as the successful defendants. His justification is as follows. There was no prosecution action taken by the police in relation to the accident. The Plaintiff did not know if D3 will give evidence at the trial. He was worried that D3 would shift the liability for the accident to D1. Having balanced that risk against the chance of success against D1 and D2, he considered it reasonable to proceed against D1 and D2. At the pre-trial review, counsel for D3 and D4 gave no indication whether D3 will give evidence. D3 and D4 only indicated their intention to admit liability for the first time in their opening submission. Even then, there was no formal admission. It was only until the first day of trial that D3 and D4 formally admitted liability. He argued that was a change of circumstance which justified the making of a Sanderson Order or Bullock Order. He quoted Fung Chun Man v Hospital Authority & Anor[12] and Chong Ngan Seng and China Harbour Engineering Company Limited and Ors[13] in support of his argument.

68.I shall first turn to the two cases quoted by the Plaintiff. Those two cases added nothing new to the well familiar principle relating to a Sanderson or Bullock order. In those cases, a Sanderson order was issued where the plaintiff discontinued the action against one defendant upon admission of liability by the other defendant. Despite the similarity in outcome, those cases do not assist the Plaintiff. They are decisions on the fact, that is, in the particular circumstances of those cases, it was reasonable to sue the unsuccessful defendants.

69.In Fung Chun Man, a case of medical professional negligence against two defendants, one of them admitted liability and the action was discontinued against the other. There was common ground between the medical experts on the issue of negligence of the former defendant but the experts were in disagreement as regards the latter defendant. The court held that in the circumstances it was reasonable also to proceed against the latter defendant and made a Sanderson order.

70.In Chong Ngan Seng, a passenger travelling on a bus fell and was injured when the bus was forced to brake abruptly to avoid the light goods vehicle driven by the second defendant of which the first defendant was the registered owner on record, though he had sold the vehicle to the third defendant. At the material time, the second defendant was driving the light goods vehicle as agent or servant of the fourth defendant. The fourth defendant admitted liability on the fourth day of trial. The Court of Appeal held it was reasonable for the plaintiff to have joined the first defendant and made a Sanderson order against the second, third and fourth defendants in favour of the first defendant.

71.Precedents are quoted as authority for the legal principle decided in the precedents. The principle is then applied to the facts of the case in issue in order to obtain the desired outcome or similar outcome as decided in the precedents. The principle is that a Bullock or Sanderson Order is appropriate if it was reasonable to sue the additional party. The determining fact is whether it was reasonable to sue the additional party. Precedents are not quoted for the purpose of applying the outcome in the precedents to the case in issue, regardless of the facts, in order to obtain the same outcome as in the precedents, which is what Mr Wong is seeking this Court to. With respect, that is incorrect.

72.I now turn to consider the material facts in the present case. The Plaintiff’s case against D1 and D2 is that D1 was negligent in stopping LP6304 at an unsafe or improper position; failed to exercise care and/or attention to other road users while LP6304 was stationery in that position; failed to swerve or manage or control LP6304 so as to avoid the collision with MA777; causing, permitting or allowing LP6304 to collide with MA777, etc. His factual case is that LP6304 was stationery when it was hit by MA777. His pleaded case against D3 and D4 is essentially D3’s failing to drive with proper care and attention. The two cases were wholly separate and isolated from each other. The Plaintiff made a conscious decision to sue D1 and D2 on a basis wholly different from that on which he sued D3 and D4.

73.D1 and D2 admitted the factual case as pleaded by the Plaintiff, including the fact that LP6304 was stationery when it was hit from behind by MA777. Their defence is that they deny the particulars of negligence as alleged and put the blame on D3’s negligent manner of driving as pleaded by the Plaintiff. Similarly, D3’s and D4’s defence is basically that they make no admission, put the Plaintiff to strict proof and put the blame on D1 and D2 by adopting the Plaintiff’s case of negligence against them.

74.The Plaintiff’s decision to sue D1 and D2 was made at the same time as his decision to sue D3 and D4. In the face of the parties’ pleaded case, it is clear that the Plaintiff knew he had a separate and different case against D1 and D2 on the one part and D3 and D4 on the other. He had evidence that D1 parked LP6304 in an unsafe position and did nothing to avoid the collision. He also had evidence that LP6304 was stationery when MA777 hit it from behind. There is no question that he did not know which of the defendants are liable but chose to sue all of them to play safe or for some other motive. His argument that he did not know if D3 will give evidence and that it was reasonable to proceed against D3 and D4 just flies in the face of his own pleadings. I fail to see what difference it would make if D3 chose to give or not give evidence at the trial which would make it necessary to join D1 and D2 in the action.

75.The thrust of the Plaintiff’s argument in suing D1 and D2 is premised on his worry that D3 may shift the liability for the accident to D1 and the uncertainty whether D3 will give evidence. Impliedly, the purpose of suing D1 and D2 was to coerce D3 to give evidence and/or to negative D3’s possible defence of shifting the liability to D1. The falsity of his argument is that he would not know if D3 will seek to shift the liability to D1 until D3 filed his defence. Likewise, he would not know if D3 will testify until at least after the exchange of the parties’ witness statements. But he had commenced the action against D1 and D2 at the same time as he commenced the action against D3 and D4. His argument is hardly convincing from a chronology point of view.

76.Furthermore, from a tactical point of view, it would be more advantageous to decide his course of action until after seeing D3’s defence. If D3 wished to shift the liability to D1, it would be D3’s burden to prove D1’s negligence and to join D1 and D2 as third parties. D3 may also have to testify to discharge his burden of proof. If D3 did not take that course, the Plaintiff’s worry would have been unnecessary and he would have nothing to gain by making D1 and D2 parties to the action but the risk of having to pay their costs if they succeed. There is a total lack of logic in his decision to sue D1 and D2.

77.There is also no substance in the Plaintiff’s argument that D3’s and D4’s admission of liability is a material change of circumstance as to make it necessary to discontinue the action against D1 and D2. Their admission did not destroy the Plaintiff’s case against D1 and D2 as to make it necessary for him to discontinue his action against them. The Plaintiff could still proceed against D1 and D2 on the basis of his pleaded case against them and obtain judgment against them regardless of the judgment he obtained against D3 and D4 if he had a good case against them to start with. Upon refusing his request for a Sanderson or Bullock order forthwith and reserving costs, the Plaintiff has been invited to re-consider whether to discontinue his action against D1 and D2 and run the risk of having an adverse costs order against them. He decided to discontinue.

78.In the present case, it is common ground between the Plaintiff, D1 and D2 that LP6304 was stationery waiting for the taxi to pull out of the waiting area so that it may enter and wait; and then it was hit from behind by MA777. The Plaintiff knew this would be D1’s and D2’s case before he commenced action against them because he was on board LP6304 with D1. D1 was in fact as much a victim of D3’s negligent driving as was the Plaintiff. The particulars of negligence the Plaintiff pleaded against D1 are his stopping LP6304 in an improper location, failing to exercise proper care and attention and failing to swerve or otherwise control LP6304 to avoid the collision by MA777 from behind. Though I have no chance to hear the evidence of the parties as to how the accident occurred, it is clear from the Plaintiff’s own witness statement that his pleaded particulars are preposterous and his chance of success against D1 and D2 would be far from remote. It would have been very dangerous, if not impossible, for D1 to swerve LP6304 from a stationery position when the taxi was pulling out. He would have caused greater harm to the Plaintiff, if he did. In my view, any reasonable lawyer, let alone a competent one, would not have advised commencing action against D1 and D2 on such a pleaded case. The pleading against D1 and D2 may even be frivolous and vexatious.

79.Having taken the above considerations into account, I find it unreasonable to commence this action against D1 and D2. D1 and D2 were not made parties to this action by D3 and D4. Howsoever D3 and D4 are liable to the Plaintiff, they should not be thrusted with D1’s and D2’s costs occasioned by the Plaintiff’s decision to sue them. The Plaintiff shall pay D1’s and D2’s costs up to the date of trial. Though the action against D1 and D2 did not run its full course, for like reasons as in the case of D3’s and D4’s costs, such costs should be assessed on indemnity basis.

80.The Plaintiff is legally aided and suing with public funds. Unlike the case of a legally aided defendant, if he fails, the Director of Legal Aid would be liable for the costs of the successful defendants. In deciding whether to commence action against a party, his solicitors have to exercise proper skill and care. Having reached the conclusion that it was unreasonable to commence this action against D1 and D2, I would invite the Director of Legal Aid to consider seeking a wasted costs order against the solicitors acting for the Plaintiff. The Court does not consider it appropriate to make such an order on its own motion because there may be issues of professional privilege between the Director and the solicitors which this Court has no knowledge of.

CONCLUSION

81.The Plaintiff’s action against the 3^rd and 4^th Defendants is dismissed with a costs order nisi that he shall pay the costs of the 3^rd and 4^th Defendants to be taxed on indemnity basis, if not agreed. The Plaintiff’s action against the 1^st and 2^nd Defendants is discontinued with a costs order nisi that he shall pay the costs of the 1^st and 2^nd Defendants up to the date of discontinuance to be taxed on an indemnity basis, if not agreed. The Plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations. Unless the parties apply to the Court by summons within 14 days from the date hereof, these costs orders shall become absolute.

Mr. Wong Chi-kwong, instructed by Messrs. Keith Lam Lau & Chan, assigned by Director of Legal Aid for the Plaintiff

Mr. Alfred C P Cheng, instructed by Messrs. Cheng, Yeung & Co., for the 1^st to 4^th Defendants