Liu Caiqiong v. Good Excel Property Consultants Ltd

HCPI 24/2016

[2022] HKCFI 2922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 24 OF 2016

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J U D G M E N T

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I. INTRODUCTION

1.The plaintiff (“P”) was employed as a security guard by the defendant (“D”), and was assigned to work at Block B, Wah Yiu House, Lai Yiu Estate, Kwai Chung, New Territories, Hong Kong (“Building”). D was/is a Hong Kong company that carried on business of inter alia providing security management services. At the material time, it was the management company of the Building and P’s direct employer.

2.P claimed (but D did not admit):

(a)	D owed duties to P at common law and/or pursuant to implied terms under the contract of employment between P and D whether by operation of law and/or by necessity to give business efficacy to such contract;[1]
(b)	D as employer and as person responsible for a workplace within the meaning of section 3 of the Occupational Safety and Health Ordinance Cap 509 (“OSHO”) owed duties to P as employee;[2]
(c)	the Building was controlled/managed by D as occupier of the Building who owed duties to P as lawful visitor thereat within the meaning of the Occupiers Liability Ordinance Cap 314 (“OLO”).[3]

3.P claimed that at/about 10:41pm on 8 February 2013 she opened/held the heavy metal side door (“Metal Door”) at the ground floor lobby of the Building (“Lobby”) to facilitate an ambulance crew leave the Lobby, and as she walked away from the Metal Door to return to her work area after finishing holding it open, it forcefully crashed into the posterior side of her body/head causing her to lose balance and fall to the ground (“Accident”). P claimed she felt immediate dizziness and pain in her neck/back, and her left heel was bleeding. She further claimed to have suffered serious multiple injuries and psychiatric illness as a result of the Accident.

4.P claimed the Accident and her injuries were caused by default on the part of D and/or its servants/agents for which D was vicariously liable: (a) negligence and breach of implied terms of contract of employment,[4] (b) breach of statutory duty under OSHO,[5] and (c) breach of duty as occupier.[6] Further, insofar as might be necessary, P also relied on the doctrine of res ipsa loquitur to establish D’s aforesaid breaches.

5.D denied liability and put P to strict proof of her claim, and averred it had taken reasonable steps to ensure the Metal Door was properly/adequately maintained at all material times. D further pleaded that if D were found liable for the Accident (which D disagreed), it would rely on P’s own positive case that the Metal Door closed on her as she walked away from it to say the Accident was caused or materially contributed to by P’s own contributory negligence.[7]

II.  PROCEEDINGS

6.P commenced the present action on 12 January 2016 by filing the Writ of Summons. At that time, P was legally aided and was represented by assigned solicitors. On 21 December 2016 and 3 December 2018, P filed her Statement of Claim and her Revised Statement of Damages (“RSoD”) respectively. On 6 January 2017 and 27 March 2019, D filed its Defence and its Answer to the RSoD (“Answer”) respectively. According to P’s RSoD, the value of her claim was $3,880,950 with interest and costs. According to D’s Answer, P was not entitled to any award of damages.

7.On 30 January 2019, the Director of Legal Aid (“DLA”) filed Notice of Discharge stating P’s legal aid certificate dated 13 March 2014 had been discharged on 28 January 2019. P was self-represented in the present action since then.

8.I agree with Mr Wong (and Mr Ho with him), counsel for D, that the issues for determination at trial were as set out in his written opening submissions: (a) what happened at the time of the alleged Accident, (b) why did the alleged Accident occur, (c) whether D was liable to P for the alleged Accident, (d) if so, whether P was contributorily negligent, and (e) if D were liable to P for the Accident, what damages should be awarded to P.

9.The trial commenced on 24 February 2021. P was the sole factual witness at trial, and she adopted her witness statement dated 30 November 2018 (“P WStmt”) as part of her evidence-in-chief. D served the witness statement of 蔡貴文 (“Choi”) dated 14 December 2018, but decided not to adduce witness evidence at trial.

10.This case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/or undisputed facts.[8]

11.I am unimpressed by P, and there were points of weakness and overstatement in her evidence that were inherently unreliable and that did not sit well with the available objective/expert evidence. Regrettably, P’s overstatement of her claim, signs/symptoms and injuries/disabilities led to a degree of reconstruction in her evidence in which she deluded herself into a state of denial of D’s defence and belief in her own version of events, which (despite P’s allegation of psychological/psychiatric damage) I find self- serving and unpersuasive. It was clearly revealed during cross-examination that P sought to perpetuate her case by self-interested evidence, and by resort to defensiveness, rhetoric and/or vagueness when confronted with contemporary documents/recordings, which were of principal relevance in the present case.

12.In my view, despite P’s assertions of multiple injuries and serious disabilities she allegedly suffered, which she claimed had adversely affected her health and recollection, P was well able to engage with her cross-examiner, but her answers tended to be unfocused, rambling, evasive, contradictory and/or repetitive even though the issues she had to deal with were simple. I have the distinct impression that P’s case was crafted/shaped to argue her own case and to sidestep adverse evidence, which conclusion was reinforced by her poor explanations on various crucial matters and her refusals to accept obvious propositions. I am not persuaded that the weaknesses in her testimony were merely due to faded recollection and/or her alleged injuries/disabilities. I find they were driven by her frustrations from overstatement of her injuries and disabilities that perpetuated her mental symptoms, which (according to P) became persistent without significant improvement. I find on balance that P was not a satisfactory witness, and that her evidence on the core matters had to be approached with caution. Unless I find otherwise below, I am unable to place reliance on the evidence P gave to the court.

13.Each party adduced orthopaedic and psychiatric expert evidence on quantum at trial. P’s orthopaedic and psychiatric experts were respectively Dr Lam Yan Kit (“Dr Lam”) and Dr Benjamin Lai (“Dr Lai”). D’s orthopaedic and psychiatric experts were respectively Dr Daniel Yip (“Dr Yip”) and Dr Peter Yu (“Dr Yu”). Drs Lam and Yip (collectively, “Ortho Experts”) jointly interviewed/examined P on 19 May 2017 (“Ortho Exam”), and Drs Lai and Yu (collectively, “Psy Experts”) jointly interviewed/examined P on 16 May 2018 (“Psy Exam”). On the 1^st day of trial, I granted case management directions for the Ortho Experts’ joint orthopaedic expert reports dated 20 July and 14 November 2017 (“Ortho 1^st and 2^nd Jt Reports” and collectively, “Ortho Jt Reports”) and the Psy Experts’ joint psychiatric expert report dated 10 August 2018 (“Psy Jt Report”) to be adduced at trial as expert evidence without calling the makers.

14.Although the trial was conducted in punti and Mr Wong lodged his written opening submissions in Chinese, I hand down this judgment in the English language as the parties’ pleadings, the Ortho/Psy Jt Reports and the surveillance report were entirely in the English language, and the medical reports, the medical notes/records and other trial documents were substantially in the English language. Should P require translation of this judgment into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to her at the High Court Building at a mutually convenient time.

III.  LIABILITY

(a)  P’s work

15.Since 26 September 2009, P was employed by D as a security guard with code number “GE1246”, and she was assigned to work at the Building. She worked 6 days/week on mid-shift from 3:30pm to 11:30pm. According to the P WStmt, P’s daily work included performing security guard duty at the security guard station (“Station”) at the Lobby, observing entries into and exits from the Building, handling regular/urgent affairs of the Building, patrolling the Building’s staircase twice daily, dealing with residents’ enquiries/complaints, cleaning the Lobby, and attending to emergency cleaning of the upper floors.

(b)  Metal Door

16.The Metal Door was the side door of the Building giving access to the Lobby and the street. It was a metal double-door with a left door (“Left Door”) and a right door (“Right Door”) when viewed from the Lobby. Each of the Left Door and the Right Door (a) comprised a metal frame with 4 panels (the top 3 panels were made of glass and the bottom panel had a metal grille) with a street-side metal door handle, and (b) was connected to the metal door frame by door hinges. The Metal Door was placed a step above steet-level, so a ramp was placed on the street against the Metal Door for ease of access.

17.The P WStmt stated each of the Left Door and the Right Door would swing close on its own by its hinges, so under normal circumstances neither door had to be closed manually after opening. Rather, each of the Left Door and the Right Door would swing close at a slow and steady (and not at an abrupt and rapid) pace.

18.According to the P WStmt, the Left Door was usually locked, so residents of the Building would usually use the Right Door for ingress/ egress. A resident would enter the access code and pull open the Right Door to enter the Building. But residents or security guards could unlock the Left Door and open both the Left Door and the Right Door when necessary.[9] However, P testified under cross-examination that the Left Door “…… 之前未壞嗰時就唔「恤」囉, 就啲住客可以隨便 [Left Door and Right Door] 都可以拉, 可以入喇 ……”, which assertion contradicted the P WStmt.

19.In my view, given that (a) P had been a security guard working at the Building for more than 3 years before she claimed to learn about the alleged malfunction of the Left Door about 4 months before the Accident (see paragraph 15 above and paragraph 24 below), and (b) her daily work included observing entries into and exits from the Building (see paragraph 15 above), such contradiction in her statement and oral evidence on whether the Left Door was usually locked or unlocked (see above paragraph) was quite inexplicable and must detract from the overall veracity of her evidence.

20.On balance, I prefer P’s oral evidence in paragraph 18 above that the Left Door was generally unlocked so residents could use either or both unlocked doors of the Metal Door for entering or leaving the Building (see also footnote 14 below). In coming to this view, I note that P under cross-examination walked back from her stance in the P WStmt (see paragraph 18 above), and did not explain why it was necessary or convenient to generally lock the Left Door. I also bear in mind that the security guard on duty at the Station would have his/her back to (and so would be unable to see) the Metal Door,[10] so it would have been more convenient for residents of the Building to (a) enter the access code at the access control panel at the doorway, and then (b) enter the Lobby via either or both doors of the Metal Door depending on their needs (eg whether they were carrying bulky objects) without having to call upon[11] and wait for the security guard to come and unlock the Left Door if required (especially when at times the security guard on duty would not be at the Station, eg when they were on their twice-daily patrols of the staircase of the Building).

(c)  Books kept at the Station

21.P confirmed under cross-examination that 2 record books were kept at the Station for use by security guards on duty, ie “OP簿” (“OP Book”) and “雜項簿” (“Misc Book”). P explained “…… 有乜事就落 [Misc Book] 囉, [OP Book] 係接更㗎喇 ……”:

(a)	P said “…… [OP Book] 係 …… 好主要嘅簿, …… 即係 …… 接更、巡樓嘅資料囉 ……”, but “…… 都有啲係維修人員 …… 落 [OP Book] 喇, 即係好似有職員嚟維修嗰啲就落 [OP Book] 喇 ……”, so “…… [OP Book] 咪嗰啲--接更同埋啲工程人員嚟維修嗰啲咪 …… 多數就 [OP Book] 喇 ……”, and “…… 有時客人投訴 ……有啲入落 [OP Book] 囉 ……”
(b)	P said “…… [Misc Book] 通常係維修, 即係有壞嘅嘢, 要報去控制室 [“Control Room”] 入落 [Misc Book] 囉 …… 見到嗰啲維修嘅地方, 好似 …… 人行道、尖頭、窿窿罅罅咁樣壞咗、凹咗 …… 即係好似我哋巡樓見到嗰個地下凹咗就落 [Misc Book] 囉 …… 通常維修嘅嘢都落 [Misc Book] 囉 …… 同埋有時客人投訴 …… 有啲入落 [Misc Book] …… 即係多數維修都係落 [Misc Book] 囉 ……”, “…… 同埋 …… 嗰啲人探訪都係有時落 [Misc Book] 囉 ……”

(d)  Reports in Misc Book - overview

22.A key issue at trial on the question of liability was whether the Left Door malfunctioned in the sense that it would “猛烈回彈” upon closing (“Motion Complaint”), which P alleged was the cause of the Accident. P told the clinical psychologist of Caritas Medical Centre (“CMC”) on 23 June 2014 that the Left Door was “out of order for 4-5 months, would suddenly close and produce loud striking noise which scared [P]”. According to the Ortho 1^st Jt Report, P told the Ortho Experts at the Ortho Exam on 19 May 2017 that “…… the [Left Door] had been seriously faulty for a while and [P] had reported to her seniors ……” P in her evidence-in-chief reiterated that “…… [D’s Metal Door] 壞咗幾個月唔整 ……”

23.P further claimed there were at least 4 reports of alleged malfunction of the Left Door in the Misc Book, which D knew or ought to have known: (a) about 4 months before the Accident “蓮姐” (security guard for the early shift from 7:30am to 3:30pm, “Lin”) recorded alleged malfunction of the Left Door (“1^st Report”), (b) about 2 months before the Accident P again recorded there was alleged malfunction of the Left Door (“2^nd Report”), (c) “……. 替工林少妹 [“Lam”][12] 都落一次簿 ……” (“3^rd Report”), and (d) “…… 一個禮拜前 [P] 又落一次簿 ……” (“4^th Report”).[13] For reasons explained below, I do not find P’s accounts of the alleged 1^st to 4^th Reports credible and/or reliable.

(e)  1^st Report

24.P claimed she first learned of alleged malfunction of the Left Door on a day about 4 months before the Accident. According to the P WStmt, P went on mid-shift duty to take over from Lin who was on early shift duty, and during their handover Lin told P there was malfunction of the Left Door and reminded P to keep it locked. P checked the Metal Door herself, and upon pushing open the Left Door to about 30°, it would swing rapidly towards close position and then slam close with a loud “bang” sound, so she immediately locked the Left Door to prevent it from being used for ingress/egress. P then saw Lin had recorded such malfunction in the Misc Book (ie the alleged 1^st Report), which record was roughly “華瑤樓B側門已壞, 已報 [Control Room]”. But as far as P knew, despite Lin’s alleged 1^st Report and notification of such alleged malfunction to the Control Room, D all along did not repair the Metal Door.

25.Under cross-examination, (a) P initially said she first came to know in/about October 2012 the Metal Door “壞壞地, 話個門鉸 [door hinge] 損壞” because “…… 早更 [Lin] 落簿喇 ……”, “…… [P] 返工嘅時候, 其實 [Lin] 就收咗工㗎喇 ……”, so P “…… 第一時間係睇簿 ……”, “…… 見到 [Lin] 就寫低咗話 [Metal Door] 壞咗”, “…… 跟住睇完簿就喺--試下個門真係嘭嘭聲響喇……”, but (b) P later said “…… [P] 同 [Lin] 大家接更嗰陣時……”, “…… 同 [Lin] 打咗招呼 …… 打完招呼 ……”, “…… [P] 第一時間知道, 就係 [Lin] 同 [P] 講「嗰個門壞喇, 壞咗喇, 我落咗簿喇」……”, “…… [Lin] 話「嗰個門壞喇」, [Lin] 話「好響」……冇講嘭嘭聲 …… 即係冇聽到嘭嘭聲就落簿喇, 咁嘅意思 ……” (my emphasis). Whilst (b) above sat together with the P WStmt insofar as such evidence asserted there were oral communications between P and Lin about the Metal Door during their handover, P did not credibly explain her discrepant evidence in (a) above that she learned of the alleged malfunction of the Left Door from reading the alleged 1^st Report in the Misc Book, which raised concern as to her overall veracity, including her account of the circumstances of the alleged 1^st Report. Further, even on P’s own case under (b) above, Lin did not hear or mention “嘭嘭聲” when she allegedly told P about the malfunction of the Metal Door that allegedly emitted loud noise/sound (ie “好響”) when in use, and “嘭嘭聲” appeared to be a description P herself coined to embellish her assertion that “[Lin] 話 [Metal Door] 「好響」” to become “…… 開門、關門嘭嘭聲好嘈呀 ……” because “…… [Metal Door] 開到最後嗰刻會撞擊到, 引致到嘭嘭聲 ……” (see paragraph below).

26.P went on to say under cross-examination “…… 就睇完簿, 跟住 [P] 就去試下 [Metal Door] 真係壞咗 ……”, “…… 打開係唔使好多喇 ……”, “…… [Metal Door] 關到最後嗰刻會撞擊到, 引致到嘭嘭聲”, “……如果冇壞, 如果正常關門, 慢慢、慢慢咁關, 一啲聲音冇呀 ……; 壞咗會大力好響, 「嘭」咁樣關呀, 啲衝擊力好響呀 ……”, “…… 跟住[Lin] 話「嗰個門壞咗喇, …… 唔好畀人哋開嗰個門, 上面有個『恤』, 要『恤』住佢, 因為驚人哋開門、關門嘭嘭聲好嘈呀, 驚打到啲住客呀」……”, “…… [P] …… 即刻「恤」住 [Metal Door] 囉 ……” (my emphasis). P gave evidence that she hoped D would arrange for urgent repairs, “…… 驚 [Metal Door] 打到啲住客囉 ……”[14].

27.Under cross-examination, P (a) at first claimed the Left Door was kept locked after the alleged 1^st Report “…… 因為個門嘭嘭聲, 啲無情力好犀利喇 ……”, “…… 驚嗰啲住客唔小心就打開咗 …… 擔心打到啲住客喇 ……”, and “…… [P] 每一次去當更嘅時候 ……” “…… 一返工嗰個時候就好留意 …… 睇下 [Left Door] 有冇 …… 畀啲住客開咗囉 ……”, but (b) later clarified “…… 即係轉更嗰時 ……” “…… [P] 有時間同埋記得嘅話就會去睇下 [Left Door] 係唔係「恤」住咗 ……”, and “…… 有時忙又唔記得睇下有冇「恤」住咁囉 ……” because “…… 有時一轉更 …… 就睇下啲簿--一返工冇幾耐就要巡樓吖嘛 …… 就有時又唔記得睇㗎喇 ……”

28.In my view, P’s statement/oral evidence revealed a tendency to embellish her case. I note that, even on P’s own case, Lin’s account of the problem with the Left Door was that (a) the Metal Door “壞壞地, 話個門鉸 [door hinge] 損壞”, and (b) “…… [Lin] 話「嗰個門壞喇」, [Lin] 話「好響」…… 冇講嘭嘭聲 …… 即係冇聽到嘭嘭聲就落簿喇, 咁嘅意思 ……” (see paragraph 25 above), which plainly showed Lin’s complaint focused on the allegedly damaged door hinge (presumably that of the Left Door) (“個門鉸損壞”) that allegedly caused the Metal/Left Door to emit loud noise/sound (“好響”) when in use (“Sound Complaint”) without mention of change in the Left Door’s physical motion to “猛烈回彈” upon closing (ie the alleged Motion Complaint), and hence Lin “冇講嘭嘭聲” (see paragraph 25 above). Indeed, Lin’s alleged 1^st Report in the Misc Book did not expressly refer to the alleged Motion Complaint of the Metal/Left Door of “猛烈回彈” upon closing (see paragraph 24 above).

29.Consequently, P’s testimony that “…… 跟住 [Lin] 話「嗰個門壞咗喇, …… 唔好畀人哋開嗰個門, 上面有個『恤』, 要『恤』住佢, 因為驚人哋開門、關門嘭嘭聲好嘈呀, 驚打到啲住客呀」……” (see paragraph 26 above) appeared to be unreliable evidential embroidery since “…… [Lin] 話「好響」…… 冇講嘭嘭聲 …… 即係冇聽到嘭嘭聲就落簿喇, 咁嘅意思 ……” (see paragraph 25 above). So even on P’s own case, (a) P in saying Lin told her to lock the Metal/Left Door because “驚人哋開門、關門嘭嘭聲好嘈呀” could only have been referring to the Sound Complaint (ie the Metal/Left Door would emit loud noise/sound when in use), and it was P (not Lin) who coined the phrase “嘭嘭聲”, and (b) Lin with her focus on the Sound Complaint and without hearing any “嘭嘭聲” would not have suggested locking the Left Door for fear of “…… 打到啲住客呀 ……”

30.Plainly, even on P’s own case, it was P who migrated the alleged Sound Complaint of the Metal/Left Door being “好響” or “好嘈” (which had no relevance for the Accident as noise/sound alone would not hurt) to the alleged Motion Complaint (which was said to be the cause of the Accident) by asserting (a) “嘭嘭聲” was caused by the Metal/Left Door slamming close (ie “…… [Metal Door] 關到最後嗰刻會撞擊到, 引致到嘭嘭聲 ……”), and (b) the Left Door should be locked because “…… 驚打到啲住客呀……”, which assertions rested on P having allegedly checked the Left Door for herself rather than on the alleged 1^st Report and/or what Lin told her (see paragraph 26 above). Thus, even on P’s own case, her assertions in relation to the alleged Motion Complaint were bare assertions not directly supported by the alleged 1^st Report by Lin.

31.Significantly, P’s allegations about the Motion Complaint at/ around 8 October 2012 (ie about 4 months before the Accident on 8 February 2013) were exploded by the Maintenance Records referred to paragraph 61 below that confirmed the functional test results of the Metal Door’s door and fixings, door locks and floor hinge on 10 October 2012 were all normal. In face of such contemporaneous documentary evidence that showed the Metal/Left Door to be functioning normally at the relevant time, P resorted to challenge the authenticity of the Maintenance Records (see paragraph 62 below), but for reasons given in paragraphs 63-64 below I do not accept P’s such challenge. In my view, the aforesaid analysis, the Maintenance Records, my findings in Part III(f)-(k) below, and P’s overall unreliability all served to undermine P’s allegations in relation to the alleged 1^st Report, and to show there was no malfunction of the such door (in the sense of the alleged Motion Complaint that went to the functional operation of the such door) at the time of the alleged 1^st Report.

32.I also find the evolution of P’s evidence as to the aftermath of the alleged 1^st Report reflected a poor attempt to mould her evidence to suit her purposes. P’s initial evidential stance of ensuring the Left Door remained locked whenever she went on mid-shift duty (see paragraph 27(a) above) was obviously put forward to support her assertion that as a security guard she was concerned to protect residents from being hit by the allegedly malfunctioning Left Door that had not been repaired, which assertion was built on the alleged Motion Complaint in respect of which I have expressed reservations. But when P was cross-examined on the circumstances of the alleged 2^nd/4^th Reports and the Accident, which incidents were premised on her allegation that she was unaware or had forgotten that the Left Door was unlocked on those occasions (see paragraphs 33-34, 41-43 and 68 below), she carefully testified there were times when she did not check to see whether or not the Left Door was locked, which testimony she harnassed to explain why at times she forgot such door was allegedly in a state of malfunction. On balance, I find myself unable to rely on P’s account of the alleged 1^st Report.

(f)  2^nd Report

33.P gave evidence that on a day about 2 months before the Accident[15] or about 2 months after the alleged 1^st Report,[16] she was unaware that the Left Door was unlocked because “…… 返工冇幾耐就要接更就要巡樓㗎喇 ……”, “…… 所以 …… 未有時間係即刻睇 [Left Door] 喇 ……”[17]

34.According to the P WStmt, P (who could not see the Metal Door from her position at the Station) was having lunch when the Left Door suddenly and forcefully swung close with a loud “bang” sound (“左側門突然猛烈回彈及出 “澎” 一聲正巨響”) (ie the alleged Motion Complaint), and she was so frightened she jumped up (“[P] 被嚇到整個人彈起”). P reiterated under cross-examination that “…… 食緊飯嗰時 ……”, “…… 喺 [Station] 嗰度突然間聽到「嘭」一聲 ……”, and went on to say “…… 筷子、匙羮都跌地下 ……” Strangely, this was not mentioned in the P WStmt even though P claimed such dramatic consequence was why “嗰次係比較清楚” (see paragraph 37 below). As seen in the discussions below, P was prone to be melodramatic in her account of events, injuries and disabilities, and even noting her claim of psychiatric damage (discussed in Part IV below), I find on balance that her colourful description of “…… 筷子、匙羮都跌地下 ……” reflected overstatement of her case with a view to exaggerate the seriousness of the alleged Motion Complaint (which she claimed to be the cause of the Accident). In my view, this served to undermine the reliability of her account of the alleged 2^nd Report.

35.P continued to testify under cross-examination that “…… 跟住 [P] 就去 [Metal Door] 睇睇咩嘢事 ……”, “…… 知道 …… 開咗個「恤」, 咁要「恤」住佢 …… 所以拿拿聲「恤」住佢 ……” The P WStmt also stated P immediately locked the Left Door, recorded its malfunction in the Misc Book (ie the alleged 2^nd Report), and telephoned a female colleague at the Control Room to report such malfunction and to request for repairs as soon as possible. P gave evidence under cross-examination that “…… [P] 落簿都註明「嘭嘭聲」…… 希望 [D] 注重, 快啲維修, [Left Door] 唔好 …… 打到啲住客, 打到住客好麻煩吖嘛, 一直--我哋嘅職員心態都係保護啲住客呀 ……” The P Wstmt claimed D did not send repair workers to repair the Left Door all along.

36.As to why the Left Door was left unlocked when, according to P’s own case, it should have been locked after the alleged 1^st Report (see paragraphs 26-27 above), P surmised “…… 可能 ……啲住客要搬貨呀, 所以兩個門 [ie the Left Door and the Right Door] 打開咗, 導致 ……我哋 …… 又忘記「恤」住 ……” When pressed, P confessed she did not know whether or not it was “……. 住客要搬貨所以就開埋 [Left Door] ……”, but she assumed “…… 係啲住客醒目就自己開喇 …… 有啲住客貪方便 …… 可能需要開嗰個門 …… 有啲住客好熟吖嘛, 住好耐, 佢知道 …… 上面嗰個「恤」…… 就可以打開個門吖嘛 ……”, and “…… 我哋自己職員唔會開嗰個門嘅, 「恤」住嘅 ……”, “…… 驚打到啲住客吖嘛, 一直都好保護住客 ……” In my view, it was quite clear from P’s above evidence that she did not actually know why the Left Door was unlocked on that occasion. This showed P was not above putting forward surmise as fact, which raised caution as to the reliability of her evidence.

37.Next, when cross-examined on the time of the day when (on P’s own case) she allegedly heard the loud “bang” sound, P testified that “…… 有一次晚上食緊飯嗰個時候 …… 應該唔係好晏喇 …… 就唔記得幾時喇, …… 「嘭」一聲, 跟住匙羮、筷子都跌地下, 所以嗰次係比較清楚 …… 因為我哋冇食飯時間 …… 唔係好夜食飯 …… 大概9點, 9點鐘前”, “…… 大概都係 …… 黃昏食緊晚飯嘅時候 …… 都係晚黑9點之前喇, 大概喇, …… 晚黑10點之前, 因為食飯都唔係好夜喇 ……”, “…… 即係大約囉, 唔清楚幾點 ……”, “…… 大概時間, 落簿時間就唔係幾清楚喇 ……” (my emphasis). On the contrary, the P WStmt stated she was having lunch and not dinner (see paragraph 34 above).

38.P tried to brush aside the above discrepancy by saying “…… 我哋中午飯同晚飯都係呢餐吖嘛 …… 中午又呢餐、晚黑又呢餐吖嘛 ……”, “…… 我哋係帶一次飯 …… 即係嗰餐飯係可以當中午、又可以當晚黑喇 …… 大概食幾多時間食飯就唔清楚喇 …… 邊度仲 …… 記得幾點鐘食飯啫 ……” On balance, I reject such strained explanation as evidential embroidery to paper over the contradiction in P’s evidence. I agree with Mr Wong that P’s meal at “黃昏” could not have been logically/sensibly described as lunch. Such evidential contradiction was not understood when P claimed she was “比較清楚” about this incident (see above paragraph), especially when there was no suggestion that P’s meal that day was taken at other than her usual mealtime. I find P’s failure to candidly face up to such discrepancy and her willingness to spin an absurd explanation undermined the reliability of the alleged 2^nd Report and also her overall veracity.

39.As for P’s assertion that “左側門突然猛烈回彈及出 “澎” 一聲巨響” (ie the alleged Motion Complaint) (see paragraph 34 above), P under cross-examination at first claimed she “…… 知道 [Metal Door] 猛力, 見到喇 ……” (my emphasis), but later admitted the Left Door “…… 猛烈回彈, [P] 喺 [Station] 睇唔到喇 ……” Although P at the Station could watch the Metal Door from the display of live feed of the CCTV monitor (see footnote 10 above and paragraphs 42 and 115 below) and it was her duty to monitor entries into and exits from the Building (see paragraph 15 above), this was not put forward as the reason for P realising it was the alleged Motion Complaint that caused the underlying incident of the alleged 2^nd Report. Rather, P sought to explain by saying when “…… [P] 聽到個「嘭」一聲嘅時候 ……” she knew “…… 係來自 …… 嗰個 [Metal Door] 壞造成嘅 ……” because “…… 第一次 [Lin] 交帶 [P] 嗰時就係試過吖嘛 ……”, “…… [P] …… 係檢查 [Metal Door] 係響吖嘛 ……”, “…… [P] 開咗冇幾多, 未開盡呀 ……”, “…… 關門時「嘭」聲響吖嘛, 猛力回彈吖嘛 ……”, so P “…… 唔使見到 …… [Metal Door] 壞咗先係造成 …… 有咁嘅聲音 ……”, “…… 「嘭」聲會響囉, 好快呀, 又好響個囉 ……”, “…… 若果 [Metal Door] 唔壞就冇啲咁嘅聲音吖嘛 ……” as the Metal Door would “…… 慢慢、慢慢咁關㗎 ……” On balance, I am not persuaded by P’s reliance on the alleged 1^st Report (which in Part III(e) above I have found that I cannot safely rely on) to justify and shore up P’s allegations as regards the alleged 2^nd Report. Further, my discussions and findings in Part III(e) above and Part III(g)-(k) below also conspired to weaken P’s overall credibility, including her account of the alleged 2^nd Report. Likewise, I also find myself unable to safely rely on P’s evidence as to the alleged 2^nd Report.

(g)  3^rd Report

40.According to P’s statement and oral evidence, P claimed she knew Lam recorded malfunction of the Left Door in the Misc Book (ie the alleged 3^rd Report). But P did not give particulars on how she learned about the hearsay 3^rd Report when Lam was a substitute security guard for the mid-shift (see footnote 12 above), ie P would be off duty when Lam was on duty. Indeed, P did not even say whether she read the alleged 3^rd Report in the Misc Book and/or whether she heard about it from Lam/others. More importantly, P did not say what circumstances led Lam to make the alleged 3^rd Report. Moreover, my discussions and findings in Part III(e)-(f) above and Part III(h)-(k) below spoke ill of P’s credibility in relation to the alleged 3^rd Report. On balance, I am unable to place weight on P’s assertions in relation to the alleged 3^rd Report.

(h)  4^th Report

41.According to the P WStmt, at/about 8:00pm one evening about a week before the Accident, P was having a drink of water when the Left Door again suddenly and forcefully swung close with a loud “bang” sound (“左側門再次突然猛烈回彈及出 “澎” 一聲正巨響”) (ie the alleged Motion Complaint), which frightened her. She went to lock the Left Door, recorded such malfunction in the Misc Book (ie the alleged 4^th Report), and telephoned the Control Room to report such malfunction and to request for repairs as soon as possible.

42.Under cross-examination, P said she could not remember the day of the alleged 4^th Report, but it should be about a week before the Accident. At that time, P “…… 係 [Station], 睇住啲閉路電視囉 …… 睇唔到 [Metal Door] …… 背住睇唔到喇 …… 畀人哋開咗喇 ……” (my emphasis), but “……唔知邊個開喎 …… 我哋職員唔會開個喎, 係住客開咗喎, 係啲比較住得耐--住客比較知道係咁樣「恤」住就可以開個喎 …… 即係上面嗰個「恤」…… 新來嘅住客就唔知道 ……” I again find that, even on P’s own case, this was merely her surmise, and she did not actually know who unlocked the Left Door and under what circumstances it was unlocked.

43.P went on to say under cross-examination that “…… 當 [P] 聽到嘭嘭聲嗰個時候 ……”, “…… 跟住 …… 嚇到[P] 跌咗個水杯落地添 ……” (my emphasis). P claimed she “…… 知道嗰個嘭嘭聲嘅來源 ……”, “…… 係 [Metal Door] 壞喇 …… 好肯定 [Metal Door] 來自嗰個 ……”, “…… 又嘭--又好響喇, [P] 跟住--唔得喇, 一定要寫明嘭嘭聲係等 [D] 盡快啲維修 [Left Door] 呀, 聽到啲耳仔又唔舒服, 嚇到成個人--喺 [Station] 成個人凭起身 …… 一直都好擔心打到住客好麻煩、好麻煩 ……” (my emphasis).

44.Again, I find P’s description of the circumstances of the alleged 4^th Report overly melodramatic. Even on P’s own case, she admitted (a) it was her duty to observe entries into and exits from the Building (see paragraph 15 above), and (b) at that time she was “…… 係 [Station], 睇住啲閉路電視囉 ……” (see paragraph 42 above), so she must have been watching the Metal Door from the display of the live feed of the CCTV monitor. In such circumstances, on P’s own case, she would have anticipated the malfunctioned but unlocked Left Door to slam close with a “bang” sound when she presumably saw on the display of the CCTV monitor someone opened it to enter/exit the Building. P’s allegations elicited under cross-examination (but not found in the P WStmt) that she was so frightened that “…… [P] 跌咗個水杯落地添 ……” and “…… [P] 成個人凭起身 ……” were clearly exaggerated. In my view, P was not above embellishing her evidence as to the circumstances of the alleged 4^th Report to bolster her case.

45.In my view, P’s eagerness to embellish her case together with my discussions and findings in Part III(e)-(g) above and Part III(i)-(k) below conspired to erode P’s credibility in relation to the alleged 4^th Report. P relied on the Photo Record referred to in paragraph 47 below to support the alleged 4^th Report, but in my view, even the Photo Record could not overcome the weaknesses in her evidence that wore away her overall credibility, including credibility of her account in relation to the alleged 4^th Report.

46.I find on balance there was no reliable evidence of history of malfunction of the Left Door (in the sense of the alleged Motion Complaint) as P claimed, especially when (a) the functional test results of the Metal/Left Door were all normal about a month before the Accident, ie on 9 January 2013 (see paragraph 61 below), and (b) there was no evidence of any intervening event between 9 January 2013 and the Photo Record on 5 February 2013 that would have caused such alleged malfunction. Whether there was or was not any malfunction of the Left Door (in the sense of the alleged Sound Complaint) was neither here nor there in relation to the Accident, but if there were any such alleged malfunction, I find/infer on balance it would have been repaired prior to the Accident given (a) P’s evidence that D did arrange for repairs to the Left Door to be carried out, and (b) my rejection of P’s allegation that the repair worker told her such door could not be repaired (see paragraphs 56-60 below).

(i)  Entry in Misc Book on 5 February 2013

47.P gave evidence under cross-examination that “…… 好似係工傷完咗囉, 但 …… 幾多月又唔記得 ……” she returned to the Station to photograph an entry she herself wrote in the Misc Book on 5 February 2013 that stated “5-2-13 B更 GE1246 華B[18]側門已壞, (因閂門嘭嘭啪聲, 已報” (ie reported to the Control Room) (“Photo Record”).

48.Under cross-examination, P testified that (a) “…… [D] 告 [P] 呀, 第一, [P] 入院時隱瞞咗啲痛, [D] 第一次 …… 去勞工處 [Labour Department, “LD”] 告 [P] [in late February 2013], [P] 放過 [D] 呀 ……” (see paragraph 192 below) and “…… 第二次 ……” “…… 保險公司 [ie D’s employees’ compensation [“EC”] insurer [“Insurer”]] 13年12月份去 [LD] 告 [P], 話 [P] 頭唔係工傷 ……” (see paragraphs 119 and 242-246 below) (ie P alleged D and/or the Insurer refused to acknowledge that apart from left heel abrasion/ contusion and soft tissue injury to the buttocks / low back, she also suffered multiple injuries, including head, neck, waist/lumbar and back injuries, as a result of the Accident) , and (b) since “…… [D] 砌 [P] 生豬肉, [P] 梗係要 ……” “…… 攞證據吖嘛, 呢啲係 [P] 寫嘅證據吖嘛 …… 所以 [P] 專登返去嗰度去影呢張相 ……” In such circumstances and on P’s own case, it was likely that she photographed the Photo Record after December 2013.

49.P claimed “…… 兩個月前落一次, 跟住 …… [Accident on 8 February 2013] 發生前一個禮拜又落一次簿 ……” (ie the alleged 2^nd and 4^th Reports), so under cross-examination P (a) initially claimed the Photo Record on 5 February 2013 was the alleged 4^th Report that “…… 講緊嗰一次飲水, 畀道門嘭嘭聲, 嚇到成個水樽或者水杯就跌咗落地 ……”, but (b) later said “…… 唔知飲水定食飯, 唔記得喇, 總之係好大聲, 嘭嘭聲響, 所以 [P] 就照寫, 等 [D] 重視 …… 快啲整 [Left Door] 囉, 好驚打到啲住客囉 ……”

50.Whilst the date of the Photo Record on its face appeared to be more consistent with the alleged 4^th Report, I am not persuaded the former lent direct support for P’s allegations in respect of the latter. The problem of “…… 閂門嘭嘭啪聲 ……” recorded in the Photo Record “…… 講出咗個問題就閂門嘅聲音嘅 [ie the sound/noise emitted by the Metal Door], 就冇講過 …… [Metal Door] 嘅問題係閂門嘅動作或者速度嘅 [ie the physical motion of the Metal Door] ……” Thus, P’s attempt to migrate the alleged Sound Complaint to the alleged Motion Complaint by saying “…… 正常門就 …… 好慢、好慢, 冇聲音呀, 如果你冇壞, 你何來嘭嘭聲呢? ……”, so “…… 個門就壞咗 ……”, “…… [Metal Door] 係速度回彈, 咁樣先係猛力嘭嘭聲喇 ……”, “…… 即係聲音係 ……代表 [Left Door] 壞咗囉 ……” was merely her own assertion not directly supported by the Photo Record.

51.Bearing in mind P’s acknowledgment under cross-exmaination that, on her own case, “…… 最危險嘅嘢就係驚 [Metal Door] …… 回彈撞到人 ……” rather than the sound/noise emitted by the Metal/Left Door, she was pressed on why she did not simply state the alleged true problem of “…… 回彈會撞到人, 回彈力強 ……” rather than “…… 寫「嘭嘭聲」, 凈係講個聲音 ……” in the Misc Book. P sidestepped this obvious difficulty by saying “…… 當時落簿就唔使咁詳細 …… 邊個落簿都係想 …… 寫最少字㗎喇 ……”, “…… 個個同事都 …… 唔想寫咁詳細喇, 有得減就減喇 ……” On balance, I do not accept P’s such explanation, which I find to be a poor excuse for the Photo Record not giving direct support for the alleged Motion Complaint that P claimed to be the cause of the Accident. Even on P’s own case, the purpose of the Photo Record / alleged 4^th Report was to notify D about the true problem of the Left Door, which was said to be “閂門猛力及快速回彈” (ie the alleged Motion Complaint), and to facilitate arrangements for appropriate repairs to be effected as soon as possible, so there was little if any reason for P to be reticent over the alleged Motion Complaint in the Photo Record / alleged 4^th Report (especially when the P WStmt claimed D had yet to carry out repairs despite the alleged 1^st, 2^nd and 3^rd Reports – but more about repairs in paragraphs 56-60 below). After all, P’s seniors (who were not at the scene of the Accident) would not have been alerted to the alleged Motion Complaint by P’s indirect reference to “…… 閂門嘭嘭啪聲 ……” in the Photo Record, but it would not have required much complexity or many Chinese characters to succinctly/clearly describe the alleged problem of “閂門猛力及快速回彈” in the Misc Book. In my view, P’s failure to face up to such weaknesses in her evidence necessarily raised doubt over the claimed correlation between “…… 閂門嘭嘭啪聲 ……” in the Photo Record and her allegation of “閂門猛力及快速回彈” (ie the alleged Motion Complaint).

52.Next, I note that of the alleged 1^st to 4^th Reports, P only disclosed the Photo Record (although, as seen above, I have reservations whether the Photo Record gave any direct support for P’s alleged Motion Complaint in contra-distinction to any loud sound/noise emitted by the Metal/Left Door when in use). When cross-examined on why she did not also photograph the 1^st to 3^rd Reports allegedly entered in the Misc Book (which entries, on P’s case, would have demonstrated history of the alleged Motion Complaint about the Metal/Left Door), P said “…… [P] 就知道搵最近嗰隻 …… [Mr Wong] 有質疑就去同 [D] 攞簿嚟睇喇 ……” When pressed, P said “…… 當時 …… 點解 [P] 唔影, [P] 都唔係好記得喇, …… [P] 解釋唔到點解, [P] 真係 …… 唔知點講, [P] 都唔知點解 [P] 唔影, 同埋諗住 …… 就有一個證據咪得囉 ……”

53.Again, I do not accept P’s above explanation. As explained in paragraph 48 above, I have found P probably took the Photo Record after December 2013 by which time (as P claimed) D and the Insurer had already notified the LD they did not accept P suffered multiple injuries (including head, neck, back and waist/lumbar injuries) as a result of the Accident, which denial P described as D and/or the Insurer having approached “…… [LD] 告 [P] ……” (see paragraphs 95 and 242-246 below). P went on to say under cross-examination that by the time “…… [D] 去告 [P], [P] 就唔擔心喇 ……”, “…… 跟住 …… 第一次去 [LD] 告 [P] 嗰時 [in late February 2013 – see paragraph 48 above and paragraph 192 below] 就唔隱瞞 [her injuries] 喇, [P’s] 朋友話「妳仲隱瞞做咩嘢啫? 佢都告妳喇」, [P’s] 朋友「妳同佢撚過, 同佢死過」……” So, even on P’s own case, one would have expected her to look for and photograph the allged 1^st to 3^rd Reports[19] as well to bolster her claim and to oppose D’s stance, especially since she claimed she had read the alleged 1^st Report (see paragraphs 24-25 above), had written the alleged 2^nd Report (see paragraph 35 above), and was aware of D’s failure to remedy the alleged Motion Complaint (ie “閂門猛力及快速回彈”) vis-a-vis the Left Door for about 4 months (see paragraphs 24 and 35 above), and would not be satisfied with just the latest Photo Record.

54.So, even on P’s own case of having decided not to “隱瞞” her injuries by the time D “第一次 [LD] 告 [P] 嗰時” (ie in/about late February 2013 – see paragraph 48 above and paragraph 192 below) and to battle D and/or the Insurer latest by December 2013 (see paragraphs 48 and 53 above and paragraphs 242-246 below), P was unable to offer any sensible reason for not photographing the entries for the alleged 1^st to 3^rd Reports in the Misc Book save to say she could not remember why. On balance, I find such explanation incredible when P claimed she went back to the Station explicitly for the purpose of gathering supporting evidence by taking photograph(s) of the Misc Book. Interestingly, P did not even say she tried to look for the alleged 1^st to 3^rd Reports in the Misc Book, which evidential lacuna raised doubt over her veracity on those matters. I also rely on my discussions and findings in Part III(e)-(h) above and Part III(j)-(k) below that highlighted the poor quality of P’s evidence on the alleged 1^st to 4^th Reports and on the effect of the Photo Record.

55.On balance, I find myself unable to safely rely on P’s evidence as to the alleged 1^st to 4^th Reports, and further find the Photo Record (which focused on the sound/noise emitted by the Metal Door – see paragraphs 50-51 above) did not directly support the alleged Motion Complaint (which focused on the physical motion of the Left Door). Indeed, the cumulative concerns discussed above undermined P’s allegation of history of the Left Door “猛烈回彈” (ie the alleged Motion Complaint) that had not been remedied. This was borne out by the CCTV Recording and the Maintenance Records discussed in Part III(j)-(k) below. But even if I were wrong and there had been malfunction of the Left Door in the sense of the alleged Sound Complaint, it would not have had any direct bearing on the Accident, and in any event I rely on the discussions and findings in Part III(j) below to say D did arrange for reasonable maintenance of the Left Door. In my view, P failed to prove on the balance of probabilities there was malfunction of the Left Door such that it would “猛烈回彈” upon closing (ie the alleged Motion Complaint) at the time of the Accident.

(j)  Repair and maintenance

56.Repair  P admitted under cross-examination that some time after she learned about the alleged malfunction of the Left Door from Lin, there was an occasion (but she could not remember when) that D “…… 有派人維修過呀 …… 見到有人嚟維修 ……”, “…… 因為我哋要落簿 [ie OP Book or Misc Book] 吖嘛 ……” P did not know how many times D arranged for repair workers to repair the Metal Door, but “…… [P] 至少知道有一次 …… 有人嚟檢查嗰道壞咗嘅門 [ie Left Door] 嘅”. On such occasion, P asked the repair worker “……「嗰扇門幾時整得好呀? 關門嘭嘭聲響」…… [P] 話「快啲整喇, 因為聽到嗰個聲音都好唔舒服, 好響呀, 成個打雷咁樣, 一打到住客麻煩喇」 …… 師傅話「整唔到呀, 整唔到呀」……” When cross-examined on whether or not the repair worker explained why the Metal/Left Door could not be repaired, P said “…… 我哋係咩嘢人啫, 點會咁詳細講, 冇呀, 師傅話「整唔到」……” But interestingly P said “……. 但唔知點解一發生 [Accident] 就整到喇, 跟住 …… [P] 同 [LD] 咁講「哦, 唔難怪」, 因為 [D] 做到 …… 13年11月份冇得做 ……” But P did not say when and how the Metal/Left Door was repaired after the Accident when she herself returned to work only on 12-13 February 2012.

57.However, P’s above oral testimony contradicted the P WStmt that stated “但以 [P] 所知，[D] 一直沒有安排維修 [Metal Door]” (see also paragraphs 24 and 35 above). P was unable to explain such significant discrepancy, “…… 咁 [P] 唔知點解 …… 嗰度咁樣寫囉, [P] 唔知呀, 就 [P] 知道係 [P] 問過師傅 …… 一次問佢, [P] 話「師傅，快啲整」, 佢話「整唔到呀」, 但 [P] 呢度咁樣寫, [P] 就唔清楚喇 ……” P agreed she had read the P WStmt before she signed the statement of truth to verify its contents, but carefully shied away from confirming whether or not she specifically read the sentence “但以 [P] 所知，[D] 一直沒有安排維修 [Metal Door]” in the P WStmt to verify its truth.

58.When pressed, P claimed under cross-examination that “…… 可能當時情緒唔係幾好, 唔記得喇, 唔好意思 ……” When asked why she did not simply say in the P WStmt “…… [P] 同個師傅講過, 師傅又話整唔到 ……”, P said “…… 嗰時畀 [Metal Door] 打個頭瘟瘟沌沌, 好多嘢都唔記得喇 …… 成日煲嘢都唔閂火 …… 好危險, 畀先生鬧 ……” But such explanation did not sit well with the 19-page P WStmt that gave detailed account of all other aspects of her case (and also with the clinical psychology progress notes of her consultation at CMC on 23 June 2014 that noted P had “relevant and coherent speech, very detailed in description”). When confronted with such fact, P said under cross-examination “…… 嗰時有冇同律師講過就唔記得喇, 就而家 [ie at trial] 就記得 …… 就問過師傅一次「師傅, 嗰個門幾時整呀？」, 師傅話「但個門整唔到」 ……”, but she later claimed “…… 好似 [P] 都有同律師講過咩嘢 ……”

59.On balance, I do not accept P’s account about the purported repair of the Metal/Left Door and/or her allegation that the repair worker told her the Metal/Left Door could not be repaired:

(a)	The P WStmt (which P had read and verified by statement of truth) claimed that as far as P knew D never arranged for repairs to the Metal/Left Door prior to the Accident, which directly contradicted P’s oral testimony that D did arrange for a repair worker to come to the Lobby with a view to repair the Left Door, but such repair worker told her it could not be repaired when in fact it could be and was so repaired after the Accident. In my view, this gave pause for concern as to the overall veracity of P’s evidence, including her allegation that there was an attempt to repair the Metal/Left Door but it failed. In my view, P was unable to give any convincing/reliable explanation for such contradiction between her oral and statement evidence, which could not be brushed away by P’s convenient suggestion of faded recollection because “…… 嗰時畀 [Metal/Left Door] 打個頭瘟瘟沌沌 ……”, and/or P “…… 可能當時情緒唔係幾好 ……” On balance, I find P was making up and tailoring her case as she went along when confronted with difficult questions and adverse evidence.
(b)	P claimed that on one occasion of attempted repair, which was likely to be after the Photo Record (that gave notice of the problem of the Metal/Left Door “已壞, (因閂門嘭嘭啪聲”) and before the Accident (as P accepted), the repair worker told her the Metal/Left Door could not be repaired, but such door could be and was actually repaired after the Accident. Such evidence was tantamount to suggesting that D did not repair the Metal/Left Door (when in fact it could be repaired) and went on to mislead P by saying it could not be repaired. But given (on P’s own case) that D took the trouble to send a repair worker to the Lobby with a view to repair the Metal/Left Door, I am unable to see why D / repair worker would not repair the Metal/Left Door when it could be repaired.
(c)	P by her oral testimony appeared to insinuate that D’s alleged successful post-Accident repair of the Metal/Left Door was somehow linked to D ceasing to be the management company of the Building after November 2013 such that “…… [P] 同 [LD] 咁講「哦, 唔難怪」……” But P did not explain or credibly explain the relevance of D ceasing to be the management company of the Building after November 2013 to (i) the alleged successful post-Accident repair of the Metal/Left Door, (ii) the alleged unsuccessful pre-Accident attempt to repair such door, and/or (iii) P’s alleged motive in “deferring” such repair from pre-Accident to post-Accident.
(d)	P did not photograph the relevant entry in the OP/Misc Book for such occasion of purported repair of the Metal/Left Door, which (on the basis on P’s own case) should have recorded that the Metal/Left Door could not be repaired. P had no satisfactory answer to why she did not look for and photograph such entry in the OP/Misc Book when she returned to the Station after December 2013 to gather supporting evidence on the alleged malfunction of the Metal/Left Door that, according to P, had not been repaired up to the time of the Accident for bolstering her claim against D and/or the Insurer.

60.On balance, I reject P’s accounts in her oral and statement evidence, and find there was no malfunction of the Left Door in the sense of the alleged Motion Complaint that D failed to repair. But even if I were wrong and there was malfunction of the Metal/Left Door in the sense that it emitted sound/noise when in use (ie the alleged Sound Complaint), it would not have any direct bearing on the Accident, and on the available evidence D did arrange for repair of the Metal/Left Door prior to the Accident (presumably, on the premise of P’s own case, in response to P’s alleged concern over sound/noise of the Metal Door, ie “關門嘭嘭聲響” and “聽到嗰個聲音都好唔舒服, 好響呀, 成個打雷咁樣” as she allegedly told the repair worker), but for reasons explained above, I disagree that such problem could not be and was not remedied prior to the Accident.

61.Maintenance  D discovered/disclosed the maintenance records of inter alia the Metal Door (described in such records as “Side Entrance”) on 9 July 2012, 10 October 2012 and 9 January 2013 signed by Cheuk Chun Wo (registered skilled worker (electronics)) and Lai Kin Ming (registered skilled worker (metal work)) (“Maintenance Records”). The Maintenance Records gave “ü” for “Adjustment with components & properly fixed” and “Cleanse” in respect of the Metal Door’s “Door & fixings Condition”, “Electromagnetic Door Locks”, “Top Dead Centre”, “Stainless Steel Safety Chain”, “Signage Sticker” and “Floor Hinge”, and stated the “Functional Test” results for these items were “N” (ie normal). Importantly, the Maintenance Records showed the Metal Door, its fixings, its door locks and its floor hinge were functioning normally on 10 October 2012 (ie around the time of the alleged 1^st Report which was about 4 months before the Accident) and on 9 January 2013 (ie about 3 weeks before the alleged 4^th Report / Photo Record and a month before the Accident).

62.P claimed she had not seen the Maintenance Records, but said under cross-examination that their contents to the effect the Metal Door “…… 嘅各項嘅功能都係正常嘅 ……” on 9 July 2012, 10 October 2012 and 9 January 2013 were “…… [D] 講大話 …… 毀滅證據, [Metal Door] 係壞咗, 鐵一般嘅事實 ……” But despite such serious complaint, P did not challenge the authencity of the Maintenance Records prior to trial even though D discovered/disclosed such documents in its List of Documents filed on 9 January 2017.

63.When pressed under cross-exmaination, P acknowledged D did arrange for technicians to inspect the Metal Door, “…… 但幾多個月就唔清楚, 總之係有人來睇 ……”, but she later walked back from such testimony to say “…… 呢啲工程部嘅事, 唔知係咪檢查門嗰啲, 我哋唔清楚 ……” But when further pressed, P said “…… 如果有人嚟檢查嘅 [P] 要落簿 ……”, and even confessed “…… 有公司嚟檢查喇 ……”, “…… 唔係話凈係一次嚟維修, [D] 不嬲耐唔中都會有人嚟做檢查 …… 其中嘅檢查就係會檢查 [Metal Door] ……”

64.In my view, P’s complaint that “…… [D] 講大話 …… 毀滅證據 ……” was nothing more than belated afterthought first elicited under cross-examination. P also did not say how D “毀滅證據” when all D did was to merely adduce the Maintenance Records to counter P’s allegation that there was malfunction of the Metal/Left Door (in the sense of the alleged Motion Complaint) before/around the time of the Accident. Indeed, P’s complaint that “…… [D] 講大話 …… 毀滅證據 ……” did not sit well with her other evidence in the above paragraph that D would now and then arrange for contractor to carry out maintenance inspections (including those for the Metal Door), which inspections would be recorded by the security guard on duty (presumably in the OP Book – see paragraph 21(a) above).

65.Interestingly, P did not photograph the relevant entries for (a) the aforesaid maintenance inspections and (b) the Accident (in the OP Book – see paragraph 21(a) above and paragraph 115 below). P testified that the OP Book was kept together with the Misc Book at the Station, but she brushed aside (a)-(b) above by saying under cross-examination that “…… 哦, [OP Book], [Lin] 話 [D] 收番起喇 …… 冇擺 [Station] 喇, 就擺 [Misc Book] 度 ……”

66.On balance, I reject P’s evidence in this respect. Even on P’s own testimony, “…… [OP Book] 係 …… 好主要嘅簿, …… 即係 …… 接更、巡樓嘅資料囉 ……” apart from other uses (see paragraph 21(a) above). Bearing in mind (a) there were 3 security guard handovers from late shift to early shift, early shift to mid-shift and mid-shift to late shift each day, and (b) each security guard had to perform twice daily patrols of the staircase of the Building during each shift, and such handovers and patrols had to be recorded in the OP Book, I cannot see any sensible reason for D to take away the OP Book from the Station. On balance, I find/infer the OP Book was still placed at the Station. Since P’s explicit purpose in returning to the Station after December 2013 was to gather supporting evidence to bolster her case and to dispute D’s allegations, P (even on her own case) should have checked the OP Book for entries referred to in paragraph 65(a) above (which maintenance inspections, according to P, failed to cure the alleged malfunction of the Left Door) and in paragraph 65(b) above (which would have recorded how the Accident occurred), and taken photographs of such entries. P’s failure to do so raised doubt as to the veracity and reliability of her evidence on the matters in paragraph 65(a)-(b) above, which concerns were further compounded by the discussions and findings in Part III(k) below.

67.On balance, I find D made regular and reasonable arrangements to maintain the Metal/Left Door, which door was in working/functional condition without malfunction (particularly in the sense of the alleged Motion Complaint) at the time of the Accident.

(k)  Accident

68.P’s case According to the P WStmt, in the evening on 8 February 2013, a resident of the Building called for ambulance service.[20] Under cross-examination, P at first said when “…… 救護員來 …… 係由 [P] …… 去解嗰個鎖 [of the Left Door] 就畀救護員過喇 ……”, but she later said “…… 唔記得, 唔好意思, 因為 [P] 記性好差喇 …… 先生都話 [P] 記性好差 ……” “…… 當救護員進入 [Building] 嘅時候, [P] …… 有冇開 [Left Door] 個鎖喇 ……” But P claimed under cross-examination that “…… 係呀, 呢啲 [P] 記得呀 ……”, “…… 當 [ambulance crew] 離開 [Building] 嘅時候, …… 就係由 [P] …… 去打開 [Left Door] 嗰個鎖, 讓救護員抬住個傷者離開 [Building] 嘅 ……” P said both the Left and Right Doors were open when the ambulance crew together with the patient on stretcher left the Lobby “…… 因為要打開 …… [Metal Door] 咁樣先 …… 夠位闊, 夠位--救護員先可以過得到嘛 ……”

69.However, the P WStmt stated that at/about 10:41pm “…… [P] 拉開 [Lobby] 的 [Left Door], 然後用門方頂著 [Left Door], [P] 於是打開 [Left Door], 及用身體頂著 [Left Door], 以方便救護員及求助的住客從 [Metal Door] 離開 [Building] ……” without any mention that she had to unlock the Left Door for the ambulance crew and the patient on stretcher leave the Building. This did not sit well with her oral testimony in the above paragraph, and lent weight to the view that there was no malfunction of the Metal/Left Door (at least in the sense of the alleged Motion Complaint) at the time of the Accident that would have required the Left Door to be locked. I find on balance that all P did was as stated above in the P Wstmt.

70.P testified that after the ambulance crew with the patient on stretcher left, “…… [P] 就冇再繼續用個身去挨住 [Left Door] 喇 ……”, and “…… 向 [Station] 方向行番入去 [Lobby] ……”, “…… 唔知行到第幾步, 第二步、第三步嘅時候 ……”, “…… [Left Door] 就猛烈回彈就撞到 [P] ……” (my emphasis). According to the P WStmt, when “…… [P] 的身體 …… 離開 [Left Door] ……”, she “…… 打算讓 [Left Door] 自動關閉 ……”, but she forgot the damaged hinge (門較) of the Left Door had not been repaired, so:

“14. …… 當 [P] 返回 [Station] 之際, [P] 向前步行兩三步之後, 被已經損壞的閘門猛烈回彈撞擊 [P] 的頭部後方及身體後方、背部及臀部被大門猛烈撞到, [P] 大叫一聲及跌到地上, 臀部著地, [P] 立即感到頸部及腰部少許疼痛、少許暈眩及左腳流血疼痛, [P] 嘗試站起來, 但腰部劇痛再次跌下來地面兩次, 未能再站起來, 直至有一位住客扶 [P] 起來, [P] 的左腳腳跟流血, 一拐一拐步行返回 [Station] ……” (my emphasis)

71.The Ortho 1^st Jt Report noted that at the Ortho Exam on 19 May 2017 P initially “…… tried to impress upon [the Ortho Experts] that the door fell on top of her but [the Ortho Experts] managed to clarify, after getting her to settle her emotional state, that the door merely swung back”. This was consistent with my view that P was prone to melodrama and exaggeration of her case.

72.P agreed she did not use her hand to hold the Left Door when she ceased to lean on such door and when she started to walk back into the Lobby towards the Station. She said under cross-examination that “…… 係呀, [P] …… 冇用手呀, 就咁樣 ……” because “…… 正常冇壞就冇事㗎喇, [P] 都唔記得 [Left Door] 係壞㗎喇, [P] 咪咁行番入 [Station] 囉 ……” When it was suggested to her under cross-examination that “…… 冇用手撳住道門 …… 就咁向前行, [Left Door] 喺 …… 後面, [Left Door] 係必然會打到 …… 個喎 ……”, she claimed “…… 正常嘅門如果冇壞, 就慢慢、慢慢關, 就唔會打到人呀, 但 [Left Door] 壞咗, 關門先嘭嘭聲打到人呀 ……”

73.In my view, such evidence raised 2 allegations relevant to the very moment of the Accident: (a) there was alleged malfunction of the Left Door such that upon closing it would suddenly and forcefully “猛烈回彈” (ie the alleged Motion Complaint) to slam close with a loud “bang” sound, and (b) P forgot such malfunction of the Left Door in the sense of the alleged Motion Complaint.

74.For (a) above, I refer to my discussions and findings in Part III(e)-(j) above that there was little credible/reliable evidence of history of such alleged malfunction of the Left Door (ie the alleged Motion Complaint) bearing in mind the weaknesses of P’s evidence and the regular maintenance of the Left Door. The absence of malfunction of the Left Door in the sense of the alleged Motion Complaint also sat well with my findings in relation to (i) P’s body parts that were hit by the Left Door at the time of the Accident (see paragraphs 78-95 below) and (b) the CCTV Recording (see paragraphs 96-106 below).

75.For (b) above, P claimed under cross-examination that “…… [P] …… 開鎖嗰時, [P] 都 …… 冇諗 [Left Door] 有冇壞 …… 冇諗到呢樣嘢 ……”, and “…… [P] 返嚟 [Station] 時唔記得 [Left Door] 係壞㗎喇 ……, 如果返嚟 [Station] 嗰時記得 [Left Door] 壞就唔會發生咁嘅事㗎喇 ……” I have found the Left Door was not locked at the time when the ambulance crew and the patient on stretcher left the Building, and P did not have to unlock the Left Door (see paragraph 69 above), which finding subverted P’s above testimony. Moreover, for reasons explained in paragraphs 76-77 below, I find that, even on P’s own case that she had to unlock the Left Door for the ambulance crew and the patient on stretcher leave the Building, her evidence was still unsatisfactory and unreliable.

76.On P’s own case, she acknowledged under cross-examination that the time elapsed between her unlocking the Left Door to let the ambulance crew and the patient on stretcher leave the Building and her being hit by the Left Door would not have taken as long as 1-2 minutes since all she did was to simply release “門方” that “頂著 [Left Door]” and then “…… 行兩步、三步 ……” towards the Lobby, so “…… 一分鐘都唔使 …… 幾多秒, 一秒, 一秒 ……” When pressed under cross-examination, P was constrained to agree “…… [P] 應該係會記得 [P] …… 一分鐘都未夠之前, 啱啱先開咗個鎖 ……”, and to accept “……係知道壞 …… 但當時開 [Left Door] 畀救護員 …… 過 …… 就知道救護員要救人, 好逼切, 就要開 [Left Door] 畀救護員過, …… 就咁樣 …… 快啲救, 救人緊要, 冇諗到其他嘢喇 ……” But she later again claimed “…… 當時 [P] 唔記得 [Left Door] 係壞㗎喇, [P] 唔記得喇 …… 如果 [P] 記得, [P] 就唔會咁㗎喇 ……”

77.On balance I accept P might have been eager to facilitate the ambulance crew leave the Building, but even on the premise of P’s own case, I am not convinced that she would have forgotten the alleged malfunction of the Left Door (in the sense of the alleged Motion Complaint) in less than 1 minute between unlocking the allegedly malfunctioned Left Door and the occurrence of the Accident. On P’s own case, the very fact P had to unlock the Left Door would have instantly reminded her of the alleged malfunction of the Left Door. Her evidence of almost immediate forgetfulness was quite incredible, and in my view, it was nothing more than a self-serving attempt to bolster her claim that there was malfunction of the Left Door in the sense of the alleged Motion Complaint, and to justify why she walked into the swinging arc/path of the allegedly swiftly closing Left Door on her return to the Lobby without putting up her hand to such door to steady its closing motion.

78.Body parts hit by the Left Door  Mr Wong in his submissions suggested P unreliably said different things at different times as to which parts of her body were hit by the Left Door at the time of the Accident, which ranged from left heel abrasion/contusion to almost the entire posterior side of her head/body. Indeed, P’s myriad allegations did not sit well with the contemporaneous notes, reports and records, which were mostly silent on these matters until a much later stage. As seen below, P resorted to various reasons for “隱瞞” her alleged multiple injuries/conditions allegedly as a result of the Accident, but I find such assertions unconvincing.

79.As seen in Parts III(m)-(n) below, the Amb Record referred to in paragraph 125 below and the medical reports dated 27 February 2014 and 16 February 2017 by the accident and emergency department (“AED”) of Princess Margaret Hospital (“PMH”) recorded that on 8 February 2013 P reported to the ambulance crew and the attending doctor that she had left heel injury.

80.According to the medical report dated 15 January 2015 by 湯紹聰中醫師, P told such Chinese medical practitioner on 15 March 2013 that “…… 報稱2013年02 月8月工作時被門猛烈撞擊, 整個人倒地導致身體多處受傷紅腫 ……” According to the medical reports dated 22 July 2013 and 11 January 2017 by 程瀚鋒註冊中醫 and 劉銳煒註冊中醫師 of 仁濟醫院暨浸會大學診所臨床教研中心 (Yan Chai Hospital and Baptist Hospital Chinese Medicine Clinic cum Training and Research Centre, “YCH/BH Centre”) respectively, P reported at the consultation on 3 April 2013 that she “跌傷頭及足部 (2013年2月8日)” (report dated 11 January 2017), and claimed “被門撞傷後枕頭部、背部、然後跌仆, 臀部著地” (report dated 22 July 2013).

81.According to the medical report dated 27 February 2017 by PMH’s department of neurosurgery (“DoN”), when P was first seen by PMH’s DoN on 15 May 2013, she claimed to have “sustained head injury during duty on 8/2/13”.

82.At the consultation on 23 June 2014, P told CMC’s clinical psychologist that at the time of the Accident she “fell and landed on the buttock …… felt self could not stand afterwards ……”

83.According to the occupational therapy report dated 16 January 2015 by PMH’s occupational therapy department (“DOT”), at the time of P’s work capacity evaluation (“WCE”) on 24 November 2014, she reported head injury during work on 8 February 2013.

84.According to the medical report dated 26 June 2017 by PMH’s department of orthopaedics and traumatology (“DO&T”), P was first seen at their clinic on 6 October 2016, and she “alleged of an injury at work on 8.2.2013, at then she was a security guard. She claimed of occiput and back injuries as being hit by a door ……”

85.According to P’s account to the Ortho Experts at the Ortho Exam on 19 May 2017, she claimed that as she walked back to the Station after the ambulance crew left the Building, “[a] door swung back and hit her head, neck, upper back, low back and buttock and both lower limbs. She then fell backward and landed on her buttock. She tried to get up for 2 times but she fell and landed on her buttock again. There was no loss of consciousness ……” (my emphasis). According to a letter dated 23 May 2017 that P sent to the Ortho Experts after the Ortho Exam (“P’s Letter”), P claimed “ 地下已壞的大堂鐵閘門打掉幾隻牙齒 (Lost a few teeth because hit by the mal-function metal door)”, “同時打傷頭部, 身體後方 (例如: 頸部, 背, 腰, 屁股) (At the same time also hit on her head and posterior aspect of her body (e.g. neck, back, lumbar area and buttock))”, “由頭致腳, 全身痛, 行路腳指, 腳底均痛 (From head to feet, pain all over her body, pain over toes and soles with walking)”, and “全身多處有嚴重內傷及瘀血 (Internal injuries and internal bruises over multiple parts of body)”.

86.According to the Psy Jt Report, when P gave her account of the Accident to the Psy Experts at the Psy Exam on 16 May 2018, she claimed “[she] was hit at the head, neck, back, shoulders, low back, buttock and left foot (heel). She fell forward. She meant to get up, but fell on her buttock again; twice in total ……” (my emphasis). P went on to tell the Psy Experts as follows:

“At the site of the Accident she had headache, dizziness, nausea, bleeding from the left foot (heel), pain at the back, neck, low back, buttocks, and stretching pain at both thighs. All the hurting body parts were bruised. She was worried if she could return to work. She did not have loss of consciousness at the time of the Accident.”

87.Under the P WStmt dated 30 November 2018, P claimed (a) she was hit by the Left Door on the back of the head, the posterior side of her body, her back and her buttock(s), (b) she fell on her buttock(s), (c) she immediately had some pain at her neck and waist/lumbar, a little dizziness and pain/bleeding at her left leg, and (d) she felt severe pain at her waist/lumbar when she tried to stand up.

88.P testified under cross-examination that when she “…… 想返番 [Station] 嘅時候, 畀個 [Left Door] 猛烈回彈「嘭」聲 ……”, “…… [Left Door] 撞到 [P] 嗰一下, [P] 嘅感覺係好大力, 猛烈嘅衝擊到 [P] 個身體後方 ……”, “…… 撞到 [P] 身體後腦, 身體後方, 「哎吔」一聲, 成個人扽落地下 ……”, “…… 蘿柚著地囉 ……”,[21] and that since the Left Door hit the posterior side of her body she “…… 向前仆…… 係向前……” (my emphasis). P went on to say the parts of her body hit by the Left Door were “身體後腦囉 …… 身體後方囉, 就 [P] 頭囉, 後腦兩個地方腫咗囉 ……”, and “後方” meant “…… 後腦兩個地方腫咗喇, 嗰個頸紅晒喇, 個背同埋兩手臂瘀黑喇, 腰 …… 又瘀又黑喇, 成個人「哎吔」一聲扽咗地下喇 …… 蘿柚落地 …… 跟住想企起身, 企唔起身, 再企起身, 企唔起身, 第三次係住客扶 [P] 起身 …… 跟住就--咁樣拐拐拐, 就行番入 [Station] ……” Mr Wong carefully asked P to focus on the point of time when the Left Door hit her, and P reiterated “…… 後腦腫兩個位、頸紅晒、手背瘀黑、條腰都瘀黑 ……”, “…… 就係畀個 …… [Metal Door] 撞到就係咁喇 ……”, “…… 即係一撞嗰下就已經撞到呢度㗎喇 ……”, “…… 佢都瘀壞一笪—[Metal Door] 撞到一下, 就係咁樣喇，就發生嗰啲 ……” P said “…… [Left Door] …… 直情係撞到 [P] 成個後面嘅身體, 由頭到頸、到腰、到背 …… 成個都撞呀 ……”

89.When cross-examined on whether she felt dizzy when she was hit by the Left Door, P claimed the Left Door “…… 根本 …… 係打到 [P] 呀 ……. 唔係撞到 …… 直情打落去呀, …… 暈呀, 嘔呀, 都嘔唔出呀 …… 當時 [P] 畀 [Left Door] 打到個人瘟瘟沌沌、傻傻地呀, 所以表達得唔好呀, 所以四個中醫話「妳畀個鐵門打壞個腦呀」、一個話「個頭影響妳呀」……”

90.During cross-examination, P also pointed to her left cheek and said “…… 左邊下排嘅大牙甩咗一隻 …… 而左邊上排嘅一隻大牙就鬆咗, 但係就冇甩出嚟 ……”, “…… 即係現場 [Left Door] 一打到 [P], 嗰隻牙就甩咗出嚟喇 ……”, and went on to say “…… 跟住啲牙齒都慢慢甩晒 …… 跟住嗰啲牙齒都好鬆, …… 又甩咗好多呀 ……” Such account was different from P’s Letter dated 23 May 2017 in which P claimed “ 地下已壞的大堂鐵閘門打掉幾隻牙齒 (Lost a few teeth because hit by the mal-function metal door)” (see paragraph 85 above). According to the Psy Jt Report, P told the Psy Experts at the Psy Exam on 16 May 2018 that she lost 2-3 teeth “from the Accident, but did not disclose the loss initially. The Accident also made her front teeth loosened ……” But P did not offer any reason for such discrepancies.

91.But P’s teeth injuries were not mentioned in the P WStmt dated 30 November 2018 (which post-dated P’s Letter and the Psy Exam). P tried to explain away such silence by saying “…… [P] 痛都隱瞞好耐, [P] 梗係唔提及喇 ……” But when P was reminded the P WStmt was made in the course of the present litigation that she commenced to seek damages from D, P claimed “…… [P] 13年3月份, [P] 同 [LD] 講, [P] 話 [D] 都打甩 [P] 嘅牙 ……”, “…… [LD] 話「妳有冇同妳公司講？」[P] 話「我都唔識呀, 咁冇喇」, 咁一直都冇講喇, [LD] 話冇喇 ……” (my emphasis). In my view, it was difficult to see why P would want to “隱瞞” or why P was concerned about not having told D about her teeth injuries when she chose to tell the Ortho/Psy Experts about her teeth injuries (albeit in somewhat different versions) much later than March 2013 and more than a year before the P WStmt, and when P claimed in her closing submissions that when she complained to the LD that “…… 仲有好多傷未判囉, [P] 仲有頸、背、腰、蘿柚、右腳、乳房、內科，冇經期嚟, 仲有住院精神科, 仲有好多傷未判, [LD] 話「妳喺庭上同法官講」……”

92.From P’s various accounts above, it appeared P claimed that:

(a)

the parts of her body that were hit by the Left Door were inter alia “撞到 [P] 成個後面嘅身體 [posterior side of body], 由頭到頸、到腰、到背 ……”, “身體後腦” or “後枕頭部” (occiput or back of head), head, neck, shoulders, back (including upper back and low back), buttock(s), both lower limbs and left foot (heel), and left lower molar tooth fell out and left upper molar tooth loosened (or loss of a few teeth or loosening of front teeth);

(b)

her immediate injuries upon being hit by the Left Door were inter alia “跌傷頭及足部”, “後腦兩個地方腫咗喇”, headache, dizziness (or a little dizziness), nausea, “身體多處受傷紅腫”, “嗰個頸紅晒喇”, pain at the neck, back, waist/lumbar, low back and buttocks, severe pain at waist/lumbar when tried to stand up, stretching pain at both thighs, pain/bleeding at the left foot (heel), all hurting body parts were bruised, “由頭致腳, 全身痛, 行路腳指, 腳底均痛”, “全身多處有嚴重內傷及瘀血”, “個背同埋兩手臂瘀黑喇, 腰 …… 又瘀又黑喇 …… 手背瘀黑、條腰都瘀黑”, “打到個人瘟瘟沌沌、傻傻地呀, 所以表達得唔好呀”, and “左邊下排嘅大牙甩咗一隻 …… 而左邊上排嘅一隻大牙就鬆咗, 但係就冇甩出嚟” (or loss of a few teeth or loosening of front teeth).

93.In respect of (a) above, P’s wide-ranging allegation that the whole posterior side of her body from head to feet was hit by the Left Door was belied by the CCTV Recording discussed in paragraphs 96-106 below. Suffice to say here that the CCTV Recording clearly showed the Left Door only had contact with her left heel and not other parts of her body, but more of this below.

94.In respect of (b) above, given my findings for (a) above, P would hardly have suffered the wide-ranging immediate injuries as she alleged. I accept P did hurt her left heel (with some bleeding), and also hurt her buttocks and possibly her low back (soft tissue injury) when she fell onto the ground. But I find P did not instantly suffer the multiple injuries/conditions as she alleged upon being hit by the Left Door, which sat well with the fact that P admittedly did not mention such multiple injuries/conditions to the ambulance crew who took her to PMH and to the doctor at PMH’s AED who first attended to her. But again more of this below.

95.On balance, I reject P’s allegations that she lost a few teeth (according to P’s Letter dated 23 May 2017 and Ps’ account to the Psy Experts at the Psy Exam on 16 May 2018) or alternatively one molar tooth fell out and another molar tooth was loosened (according to P’s testimony under cross-examination) immediately upon being hit by the Left Door. P also testified that the Left Door “打到 [P] 個嘴歪哂”. Such allegations were not mentioned to the ambulance crew, the doctor at PMH’s AED and/or the Ortho Experts at the Ortho Exam, and were not seen in P’s pleadings and/or the P WStmt. I have found P’s explanation that “…… [P] 13年3月份, [P] 同 [LD] 講, [P] 話 [D] 都打甩 [P] 嘅牙 ……”, “…… [LD] 話「妳有冇同妳公司講？」[P] 話「我都唔識呀, 咁冇喇」, 咁一直都冇講喇, [LD] 話冇喇 ……” unreliable (see paragraph 91 above). P initially did not mention about her alleged neck and head injuries, but chose to reveal such injuries to PMH’s AED on 1 and 21 March 2013 (see paragraph 151 below). She also testified that D and the Insurer respectively “去 [LD] 告 [P]” in late February 2013 and in December 2013 (ie they notified the LD they did not accept P suffered neck, back and waist/lumbar as well as head injuries as a result of the Accident), and that by the time “…… [D] 去告 [P], [P] 就唔擔心喇 ……”, “…… 跟住 …… 第一次去 [LD] 告 [P] 嗰時 [ie in late February 2013] 就唔隱瞞 [her injuries] 喇, [P’s] 朋友話「妳仲隱瞞做咩嘢啫? 佢都告妳喇」, [P’s] 朋友「妳同佢撚過, 同佢死過」……” (see paragraphs 48 and 53 above and paragraphs 192 and 242-246 below). So even on P’s own case, she should have told her treatment doctors at medical consultations, told the Ortho Experts at the Ortho Exam, and told the court by way of her pleadings and the P WStmt about her alleged teeth injuries, but inexplicably she did not. On balance, I reject P’s bare assertions, and find her evidence attributing her alleged teeth injuries to the Accident unreliable.

96.CCTV recording  As Dr Yip noted in the Ortho 1^st Jt Report (which I agree after having viewed and reviewed the CCTV recording of the Accident (“CCTV Recording”)), the footage of the CCTV Recording was a computer playback and not the original digital video file, but it was still of good quality. P admitted there was CCTV recording of the Accident because shortly after the Accident one of her seniors watched playback of the CCTV Recording at the Station (see paragraph 115 below). P agreed the CCTV Recording showed “…… [Left Door] 撞到 [P] 嘅係 [P] 隻左腳踭嘅 ……”, “…… 當時 [P] 左腳都流血呀 ……”

97.In respect of the CCTV Recording, P:

(a)	insisted “…… [P] 記得就打到 [P] …… 頭嘅後腦, 身體嘅後方 ……”, and disagreed the CCTV Recording merely showed “…… [Left Door] 凈係擦傷咗 [P] 嘅左腳踭嘅啫 ……” and/or “…… 其實 [Left Door] 關上嘅時候 …… 並沒有撞到 [P] 個頭、頸、背或者腰嘅 ……”;
(b)	insisted the Left Door “…… 個門關好響呀, 嘭嘭聲呀, 好快㗎 ……”, and disagreed the CCTV Recording showed “……撞到 [P] 之後, [Left Door] 其實係慢慢地關上 ……” and/or “…… 其實喺 [P] 嗰個發生 [Accident] 當天, 根本上 [Left Door] 就沒有 [P] 所講嘅猛烈回彈呢一回事 ……”

98.Drs Lam, Yip and Yu also viewed the CCTV Recording, and consistently observed that the mechanism of injury as shown in such footage was different from P’s account. In the Ortho 1^st Jt Report, the Ortho Experts made the following observations:

(a)

Dr Lam noted the CCTV Recording showed: (i) P fell backwards onto the ground landing on her buttock in front of the entrance of the Building; (ii) the Left Door was seen to be closing, but no direct contact between the Left Door and P’s head, neck and/or back regions was seen; (iii) P was unable to get up by herself until she was assisted by another person; (iv) P walked with a limp after her fall.

(b)

Dr Yip noted the CCTV Recording clearly recorded the ambulance crew leave the Building, and in the process of closing both the Left Door and the Right Door, P released the holding mechanism of the door to her right (ie the Left Door) and allowed it to swing to close position, but she stepped into the path of the closing Left Door by walking in front of it. Dr Yip said it was likely that P was reaching the Right Door to release it as well, and he went on to say as follows: “At frame 4:06, it is possible to see that the left foot is behind her body in her stride and which explains the left heel laceration. She lost her balance as a result of the pain in the left heel. The door did not hit her body as she has claimed. She uses both hands to reach out and possibly try and hold onto the right and left door. She then bent her knees and landed on her buttock. The [Left Door] continued to return to the close position in a gentle manner. The force of the injury to her buttock was mild. She was assisted by a passerby. The [Left Door] is seen being partially open later by the passerby and allowed to close on its own accord. The self-closing momentum movement of the door seems gentle. She is then no longer seen in the picture as she moves to further inside the [Lobby].” Dr Yip further observed that: (i) the closing force/momentum of the Left Door did not appear excessive and was consistent with glass doors seen in residential buildings that necessarily catered for young/elderly residents; (ii) at the Ortho Exam P keenly/specifically pointed out she was actually walking away from the the Left Door, but as she took a stride forward, so the other heel would be backwards, and the Left Door being a flat surface would come into contact with the backward heel, so it was therefore reasonable to expect the Left Door to have clipped her backward heel to result in the undisputed abrasion; (iii) this caused P to lose balance, but the force of landing on her buttock would be very mild as her knees buckled and she slumped down to the ground relatively gently, and would result in injury to a defined area; (iv) there was no injury to other parts of P’s body (specifically head, neck and back regions).

99.In the Psy Jt Report, Dr Yu stated he had studied the CCTV Recording a few times, and agreed with the observations of the Ortho Experts that no contact between the Left Door and P’s head, neck and back regions was seen. Dr Lai did not make observations on the CCTV Recording, and merely adopted an abridged description of the Accident in the joint letter of instructions dated 6 April 2018[22] (which appeared to be P’s pleaded claim – see paragraph 3 above) even though by such joint letter of instructions D’s solicitors asked the Psy Experts to consider the CCTV Recording that captured the mechanism of the Accident.

100.Under cross-examination, P suggested the CCTV Recording “…… 做咗手腳 ……”, and “…… [D] 講大話, 毀滅證據 ……” When P was reminded that she did not challenge the authenticity of the CCTV Recording despite D’s discovery of such footage in its List of Documents filed on 9 January 2017, P insisted “…… [P] 爭議過 …… 就係爭議嗰 [CCTV Recording] 嗰個門做咗手腳, 一直都爭議 [CCTV Recording] 不正常嘅停頓 ……”, but she was unable to say when/how she raised such challenge. All P said was “…… [P] 唔記得幾時, 係一幾年喇, 就應該 …… 自從 [P’s] 律師畀 [P] 睇完 [CCTV Recording] 嘅時候, [P] …… 就開始反對喇 …… 因為 [P] 第一次睇 [CCTV Recording] …… 係律師個手得知 …… [P] 就一直同律師講 …… [P’s] 大狀都係爭議 [CCTV Recording] 有問題呀, [P] 大狀都咁講 ……”

101.I watched the CCTV Recording at trial, and reviewed it again for a few times. The footage showed the Metal Door (ie both the Right Door and the Left Door) was opened to let the ambulance crew transport a patient on stretcher out of the Building. P released the Left Door to let it close, and then she was hit by the Left Door, lost her balance, fell to the ground, and was eventually helped up by a man. P’s evidence wavered uncertainly between falling forward (see paragraphs 86 and 88 above) and falling backward (see paragraph 85 above), but it was plain from the CCTV Recording that P’s knees buckled and she slumped down falling backwards on her buttock(s).

102.I am not guided by the observations of Drs Lam, Yip and Yu on the CCTV Recording, but having carefully considered the footage, I independently came to the same conclusion as they did.

103.On balance, I reject P’s allegations in paragraph 97(a) above, and find as follows:

(a)	I find P took a few steps forward after she released the Left Door to let it swing from open position to close position. It was unclear from the CCTV Recording itself whether P’s initial steps were for returning to the Lobby or for going towards the Right Door to release and close it as well. But what was clear from the footage was that P stepped into the swinging arc/path of the Left Door as it travelled towards the close position, and the Left Door coming from behind P clipped her left heel.
(b)	I agree with Drs Lam, Yip and Yu that as the Left Door swung towards close position, it did not come into contact with P’s head, neck and/or back areas, ie the posterior side of her body, apart from her left heel. I also do not see the Left Door coming into contact with P’s neck, shoulders, waist/lumbar, buttocks and other parts of her legs (eg thighs). I find on balance that the Left Door did not hit the posterior side of P’s head/body save for her left heel.
(c)	As seen in the CCTV Recording and as P admitted, she was ambulating (ie taking 2-3 steps) and not standing when she was hit by the Left Door. As P was in walking stride, such motion would involve the forward foot (“Forward Foot”) taking a step out and the back foot (“Back Foot”) pushing off to propel the body forward, and when the Back Foot hit the ground, the Forward Foot would roll through the step. This meant P in walking stride would only have 1 foot behind her body, and depending on the moment in time in relation to the step taken by P, it could be either the Back Foot or the Forward Foot. At the time of the Accident, P’s foot that was behind her body was her left foot, which meant her left heel would be furthest away behind her. Since the Left Door that was swinging close was a flat surface coming towards P from behind, logically and factually the point of contact between the flat Left Door and P in walking stride could only have been (and was) the heel of P’s left foot that was furtherest behind the rest of her body. Consequently, the CCTV Recording showed that as the Left Door swung close, it clipped P’s left heel and caused the undisputed abrasion/contusion. But upon such contact the swinging motion of the flat Left Door was stalled, and it did not come into contact with other parts of P’s body (eg head, base of skull, neck, shoulders, back, waist/lumbar, buttocks and other parts of the legs) that were further in front of P’s left foot.
(d)	I find the CCTV Recording showed that when the Left Door clipped P’s left heel, she lost balance, her knees buckled, and she slumped backwards to the ground onto her buttock(s). A man came forward to help her up, and P was somewhat unsteady when back on her feet. Her arms reached out towards the Right Door and then towards the Left Door, possibly trying to steady herself, but in a moment or so she was able to walk further into the Lobby on her own.

104.On balance, I also reject P’s allegations in paragraph 97(b) above. Having viewed the CCTV Recording, I am not persuaded at the time of the Accident “…… 個門關好響呀, 嘭嘭聲呀, 好快㗎 ……” (my emphasis) as P alleged (ie the alleged Motion Complaint). In my view, the CCTV Recording showed the closing momentum of the Left Door was reasonably steady and not sudden, abrupt and/or rapid. After the Left Door clipped P’s left heel it continued its swing towards close position, but its momentum was not forceful and/or excessive. On balance, I find the closing motion of the Left Door at such staid pace would not be “好響呀, 嘭嘭聲呀” whether before or after the Left Door clipped P’s left heel. In any event, even if the Metal/Left Door made noises/sounds during its closing momentum, it was immaterial to the Accident. The CCTV Recording then showed the Left Door was partially pulled open by the man who came to P’s assistance, and then was allowed to swing close on its own. The self-closing momentum of the Left Door did not appear to be forceful, excessive and/or rapid, and certainly such door did not slam close. I am not convinced it would have created any loud “bang” sound as P alleged. I find on balance that the alleged malfunction of the Left Door in the sense of the alleged Motion Complaint, ie swinging and slamming close forcefully and rapidly (“猛烈回彈”), was not evident.

105.In view of the CCTV Recording that gave enlightenment on the mechanism of the Accident and that contradicted P’s contentions, P resorted to subvert such objective evidence by attacking its authenticity by way of complaint that the CCTV Recording “…… 嗰個門做咗手腳 ……”, such footage “…… 不正常嘅停頓 ……”, and D “…… 講大話, 毀滅證據 ……” (see paragraph 100 above). Such complaint was a serious one as it was tantamount to accusing D of having adduced tampered evidence at trial, but quite strangely it was elicited only under cross-examination. In my view, P’s criticisms had the hallmarks of belated afterthought for diffusing adverse contemporaneous evidence. Despite P’s ready access to legal advice when D discovered/disclosed the CCTV Recording on 9 January 2017, P did not dispute its authenticity in her pleadings and/or in the P WStmt, and no Notice of Objection as to Authenticity under Order 27 rule 4(2) of the Rules of the High Court (“RHC”) was filed, which meant P was deemed to admit the CCTV Recording was authentic documentary evidence (see Order 27 rule 4(1) of the RHC). I am not persuaded by P’s belated and unreliable complaint about the CCTV Recording in paragraph 100 above.

106.As a result of my findings in relation to the circumstances of the Accident, I have no doubt P overstated her immediate injuries/conditions. Apart from the swinging Left Door clipping P’s left heel resulting in a 1cm (see paragraph 150 below) or 2cm (see paragraph 125 below) abrasion/contusion with some bleeding, which caused P to lose balance and to fall backwards on defined area of her buttock(s) resulting in soft tissue injury, P did not suffer other immediate physical injuries as she alleged. I agree with Dr Yip that the swinging momentum of the closing Left Door was not sudden, vigorous and/or rapid (and certainly the Left Door did not forcefully crash into the posterior side of P’s body from head to foot as alleged/pleaded). Nevertheless, P did not see the Left Door coming up behind her, so she lost her balance with arms flailing out when her left heel was clipped. Although the buckling of her knees gentled her fall backwards onto her buttock(s), her gait was not too steady after she was helped up by a man. In my view, the above conclusions sat well with the discussions and findings in relation to the aftermath of the Accident at the Lobby, the ambulance transport to PMH, and the medical consultation at PMH’s AED in Part III(1)-(n) below.

107.Causation/liability  In her evidence-in-chief, P claimed “…… 因為 [Metal Door] 關門嘭嘭聲響, [P] 都畀佢嚇咗兩次 …… [P]落簿落咗兩次喇 [ie the alleged 2^nd and 4^th Reports], 責任就唔在 [P] 喇 ……” Her complaints were essentially that (a) the Metal/Left Door was unsafe for ingress/egress due to the alleged Motion Complaint, ie the Left Door did not (as it should) swing close on its own in a gentle/steady pace and instead it would “猛烈撞擊” and forcefully slam close with a loud “bang” sound, and (b) D failed to provide P with safe access / place of work and/or safe system of work, training, supervision, advice, warning and/or instruction. On balance, I disagree for reasons discussed above and as set out below.

108.I find on balance that at the time of the Accident, there was no malfunction of the Metal/Left Door (in the sense of the alleged Motion Complaint) as P alleged, and such door was not of itself unsafe for ingress/egress. I have explained why P’s evidence as to the alleged 1^st to 4^th Reports was unreliable (see Part III(e)-(h) above), and why the Photo Record that essentially focused on the sound/noise generated by the Metal/Left Door did not directly support the alleged Motion Complaint (see Part III(i) above). I have further found that the Metal/Left Door was so maintained that it was functioning normally prior to the Accident (see Part III(j) above).

109.Also, I accept on balance that the CCTV Recording upset P’s allegations as to how the Accident happened (see paragraphs 96-106 above). Plainly, the Accident happened because after the ambulance crew with the patient on stretcher left the Building P released the Left Door to let it close but did not put up her hand to “…… 撳住 [Left Door] 就離開 [Left Door] ……” to take a few steps forward into the swinging arc/path of the Left Door. In my view, this (and not any alleged rapid, sudden and/or forceful swinging momentum) was why the Left Door on swinging close clipped P’s left heel.

110.I am not persuaded D was in any breach of duty of care in providing safe place / system of work and/or proper instruction, supervision, advice, warning and/or training under the heads of liability that P relied on in paragraphs 2 and 4 above. As explained by Lord MacDermott in Winter v Cardiff Rural District Council,[23] such duties “…… are not absolute in nature. They lie within, and exemplify, the broader duty of taking reasonable care for the safety of his workmen which rests on every employer ……” (my emphasis). Whilst there is a duty to see that reasonably safe place of work and/or safe access are provided and maintained, there will be no liability if there is no real risk to employees acting with sufficient care. And in considering whether the place of work and/or access is safe or not, regard must be had as to its nature.[24]

111.It is said that a safe system of work is an over-arching obligation, supporting and supplementing other aspects of the employer’s personal duty of care. At the lowest, it requires appropriate instruction of the workforce as to the safe performance of the task. But with a task of any complexity, it requires the use of a safe system of work, which may involve the organisation of the work, the procedure to be followed in carrying it out, the sequence of the work, the taking of safety precautions and the stage at which they are to be taken, and the provision of any necessary supervision.[25] But in Winter, Lord Oaksey said at pages 822-823 as follows:

“…… In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumsatnces. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of the work or mode of operation. This is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. It is not easy to define these spheres, but where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workman on the spot……. A good leader of men (and an employer is a leader of men) leaves to his mean as much discretion as he can, otherwise unforeseen circumstances will upset the best laid plans. The question is in each case: Is it a matter for the employer’s decision or the man’s? ……” (my emphasis)

112.In Fong Yuet Ha v Success Employment Services Limited,[26] Kwan JA (as she then was) reiterated it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task at hand. In deciding this question, regard must be had to the nature of the operation, amd whether it is one which requires proper organisation, instruction, supervision, warning and training in the interests of safety. Kwan JA (as she then was) cited a number of cases in which the courts held on the facts that the operation was simple, and it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation without need for the employer to prescribe a system of work or give specific instruction or advice how the task should be done (paragraphs 19-20).

113.I agree with Mr Wong that the opening and closing of the Metal Door was plainly a matter that should be left to the discretion of P as a security guard. By the time of the Accident, P had been a security guard at the Building for more than 3 years. The opening and closing of the Metal Door was a common task for residential building security guards, and required common sense rather than organisation, training, warning, advice and/or instruction let alone any supervision. In my view, the nature of such work did not require particular risk assessment nor any need to devise any system of work, and P should be left to her own discretion, experience and knowledge of the circumstances to adopt a sensible and appropriate way to close the Metal Door. In my view, any sensible person who has been leaning his/her body against a self-closing door in order to hold it open must have known that upon releasing such door and allowing it to close on its own by ceasing to lean on it, he/she should not walk in front of such door into its swinging arc/path without putting up a hand to steady its closing motion because common sense dictates that otherwise he/she may be hit by the door (which he/she cannot see) coming from behind. In my view, the Accident was caused by P failing to take reasonable care of her own safety rather than by any breach of duty on the part of D whether under her contract of employment, under the OHSO, under the OLO or under the tort of negligence. Such conclusion was consistent with the events that happened shortly after the Accident as discussed in Part III(l)-(n) below.

114.Contributory negligence  Even if I were wrong and D were liable to P on the basis of P’s case premised on malfunction of the Left Door in the sense of the alleged Motion Complaint, ie the Left Door would forcefully/rapidly swing and slam close with a loud “bang” sound (which I disagree), P must be contributorily negligent given my views/conclusions on the basis of P’s own case that (a) she would not have forgotten about such malfunction of the Left Door at the time of the Accident (see paragraphs 76-77 above) and (b) she failed to take reasonable care of her own safety (see paragraphs 107-113 above). Since P, on her own case, knew or was aware that the Left Door malfunctioned in the sense of the alleged Motion Complaint, common sense suggested that in taking reasonable care of her own safety, P (having been a security guard for more than 3 years at the Building and having been opening/ closing the Metal Door as part of her duties) should not step in front of and/or should not walk into the swinging arc/path of the closing Left Door, and rather she should put up her hand to steady the closing motion of the Left Door so there would be enough space for her to safely walk forward into the Lobby. I agree with Mr Wong that in such circumstances P’s contributory negligence would not have been less than 50%.

(l)  Aftermath of Accident

115.The P WStmt stated that:

“14. ……[P] …… 一拐一拐步行返回 [Station], [P] 坐下來, 然後致電 [Control Room] 報告 [P] 發生意外及受傷。

15. [Control Room] 派了兩名上司到 [Building’s Lobby] 了解情況, 一名上司檢查已壞的閘門的情況, 另一名上司到 [Station] 看 [CCTV Recording], [P] 親自在 [OP Book] 上填寫意外的發生, [P] 當時腰部劇痛情緒不穩, 右手手震, [P] 用左手按住右手填寫 [OP Book] 。不久, 救護車到達, [P] 被送到 [PMH’s AED] 接受治療。” (my emphasis)

From the above account, P claimed that very shortly after the Accident, she had severe pain at her waist/lumbar region, and also right hand tremor such that she had to use her left hand to hold her right hand in order to write/record the Accident in the OP Book.

116.P gave evidence under cross-examination that after the Accident she “…… 打電話畀 [Control Room] 吖嘛 ……” and “…… 即時 [D] 都派咗兩名上司落到去 [Lobby] 了解情況㗎嘛 ……” P went on to say “…… [P’s] IC 黃生 [presumably 黃德才 (“Wong”)] 問「妳流血, 妳不如call白車喇」, 就咁喇, 跟住 [Wong] 叫 [P] call白車, 跟住 [P] 就call白車喇 ……”, “…… 嗰時 …… 阿頭話call白車咪落 [OP Book] 囉 …… [P] 自己寫 …… 寫幾分鐘都寫唔到, 跟住 [Wong] 話「仲未寫到」, 嗰時手震寫唔到呀, [Wong] 話「快啲喇, 白車就嚟喇」, 跟住 …… [Choi] (IC) 就喺 [Station] 見到 [P], [P] 話「蔡生, 你幫我寫喇, 手震」, 跟住喺度笑 [P], 就唔幫 [P] 寫, 跟住彈開喇 …… 跟住 …… 仲喺公司呢度唱 [P] 話 [P] 當時手震寫唔到字, 有啲同事話畀 [P] 聽 ……” In the end, “…… [P] 就用左手撳住個右手寫 ……” in the OP Book.

117.But according to P’s account to the Psy Experts as recorded in the Psy Jt Report, “[P] limped back to her seat in the [Lobby]. She called the management office [ie the Control Room]. Then two officers in charge came to her. She was asked to write a statement of the incident. She had tremor of her hands then and could not write. The senior wrote the statement for her. She was then sent by ambulance to [PMH]”.

118.In my view, P’s accounts in the paragraphs 116-117 above were quite different in that P orally testified that Wong urged her to call for an ambulance so she made an entry in the OP Book and Wong/Choi did not help her despite her request due to right hand tremor, but P told the Psy Experts it was Wong/Choi who asked her to record the Accident in the OP Book and eventually her senior wrote such entry for her due to her hand tremor. P did not offer any explanation for such contradictory accounts, which, in my view, served to undermine her overall veracity.

119.In my view, P’s case was further weakened by her inability to give credible explanation for not photographing the aforesaid entry for the Accident (when the mechanism of the Accident and the injuries she suffered were the very subject of her complaints against D and/or the Insurer having “…… 去 [LD] 告 [P] ……” and “…… 刪除 [P] 頸、背、腰工傷紀錄 ……”) in the OP Book (which I have found was kept at the Station – see paragraph 66 above) when she photographed the Photo Record some time after December 2013.

120.According P’s account to the Psy Experts, even at the site of the Accident, she had headache, dizziness, nausea, pain at the back, neck, low back and buttocks, and stretching pain at both thighs (see paragraph 86 above). According to the P WStmt, P claimed that immediately upon the Accident she had severe pain in her waist/lumbar region and also right hand tremor such that she had difficulty in writing (see paragraph 115 above). Presumably, these allegations gave rise to her allegation under cross-examination that immediately after the Accident she knew she had worse injuries than just abrasion of the left heel: “…… [P] …… 係知道係唔妥, 所以 [P] 先call白車呀, [P] 唔係因為 [P] 嘅腳流血call白車呀, [P] 係知道自己唔妥, 因為好嚴重, 起唔到身、又寫唔到字當時 ……”, “…… 暈呀, 暈呀, 瘟瘟沌沌, 暈呀 ……” And yet P never mentioned to her seniors (who were with her at the Lobby in the aftermath of the Accident and who were concerned enough to urge her to call for ambulance service to take her for hospital treatment) about her alleged severe pain and multiple injuries from head to feet on the posterior side of her head/body, and also “[P] …… 冇同嗰兩位上司講撞甩咗 [P] 隻牙呀 ……”

121.P said under cross-examination that at that time she was not thinking about whether she would lose her job if she spoke out, and she just “…… 就冇講, 唔需要講 ……” When pressed on why “唔需要講”, P explained that “…… 唔知嚴重性係咁犀利囉 …… 完全都冇諗到咁犀利喺入面 ……”, which contradicted P’s account to the Psy Experts and her claim in the P WStmt that quite immediately after the Accident P had headache, dizziness, nausea and pain all over her body as well as severe pain at the waist/lumbar region (see also paragraphs 86, 115 and 120 above). Indeed, P also pleaded that after the accident she felt immediate dizziness and pain in her neck/back (see paragraph 3 above), and testified under cross-exmaination that right after the Accident “…… [P] 係知道自己唔妥, 因為好嚴重, 起唔到身、又寫唔到字當時 ……”, “…… 暈呀, 暈呀, 瘟瘟沌沌, 暈呀 ……” and even a molar tooth fell out (see above paragraph). When further pressed, P claimed “…… 即係 …… 暈呀, 痛呀, 痛到想死 ……”, but said “…… 可能 …… 又唔識講喇, 又唔需要講囉 …… 都冇諗住同 [D] 打官司, 又唔知工傷 …… 又唔識係工傷, 都冇諗到其他嘢喇。[P] 手震都冇講喇, 如果唔係 [Choi] 見到, [P] 都唔講喇 ……”

122.From P’s above account, it appeared that in the immediate aftermath of the Accident P did not disclose to her 2 seniors her multiple injuries/conditions set out in paragraph 92 above except for her left heel abrasion/contusion (with bleeding) and fall on her buttock(s) (which injuries were evident in the CCTV Recording that one of her seniors reviewed at the Station), but she claimed Choi noticed her alleged right hand tremor. But given my findings as to how and why the Accident happened (with no collision between the Left Door and P’s neck, back, arms, legs and other posterior parts of her body), and given P’s differing accounts as to how the entry in relation to the Accident was made in the OP Book, I am not persuaded P suffered right hand tremor immediately upon the occurrence the Accident. In fact, hand tremor was first noted at the triage assessment on 1 March 2013 by PMH’s West Kowloon Psychiatric Centre (“WKPC”) as summarised in the Psy Jt Report (see paragraph 197 below), and Dr Lai (P’s Psy Expert) regarded hand tremor as a psychiatric rather than physical symptom (see paragraphs 199, 248 and 351 below and footnote 40 below), and I am not persuaded (and there was no medical opinion to the effect that) P developed psychiatric symptom of hand tremor instantaneously upon the occurrence of the Accident.

123.P offered a basket of reasons for not mentioning her alleged immediate multiple injuries/conditions to her 2 seniors who came to her upon her report of the Accident to the Control Room. But if (as P said) at that time she was not thinking about whether or not she would lose her job, and her seniors were concerned enough to urge her to call for ambulance service to take her for hospital treatment, I see no sufficient reason for P to be reticent (as she was) about her alleged multiple injuries/conditions. P’s basket of reasons for her reticence included the following, but on balance I find them unpersuasive:

(a)	P claimed she felt “…… 暈呀, 暈呀, 瘟瘟沌沌 ……” I have accepted P was a bit unsteady on her feet when she was helped up from her fall to the ground on her buttock(s). But I have also found the Left Door only clipped her left heel and did not hit the back of P’s head and neck, so I see no reason for the alleged condition of “…… 暈呀, 暈呀, 瘟瘟沌沌 ……” More importantly, the ambulance crew noted in the Amb Record (which P accepted to be accurate) there was no dizziness (see paragraph 125 below), which information must have been elicited from P during their physical examination of P.
(b)	P claimed she did not realise then her injuries were quite serious. But this assertion flied against P’s own pleadings and evidence that (i) she felt immediate dizziness and pain in her neck/back, (ii) she had severe waist/lumbar pain immediately after the Accident, and (iii) she called for ambulance service to take her to hospital because she knew she suffered more serious injuries than just left heel abrasion.
(c)	P claimed she did not know how to articulate her injuries. I find such allegation specious for all P needed to do was to point to the relevant parts of her body to say they hurt, and to show the molar tooth (or the few teeth) that fell out.
(d)	P said she did not know the Accident was an injury on duty, and she did not anticipate she would have to engage in litigation with D. I accept P would not be thinking about EC and/or common law claims immediately after the Accident. But this would not have detracted from a natural reaction to say which part(s) of her body hurt and how she felt after the Accident, especially when she reported the Accident to her seniors who debated whether (but finally decided) to let her go off duty to seek hospital treatment.
(e)	P claimed “唔需要講”. P did not explain why “唔需要講” (which allegation suggested it was P’s considered choice to be silent) other than to refer to the reasons in (a)-(d) above, which I have found to be unconvincing.

124.As seen in Part III(m)-(n) below, P also did not mention her alleged multiple injuries (apart from the left heel abrasion/contusion) to the ambulance crew and/or PMH’s AED, which was even more inexplicable as the very nature of their services was to give first aid to P and to treat P’s injuries. I find on balance that the fact P kept quiet about her alleged multiple injuries/conditions from her seniors, the ambulance crew and/or PMH’s AED lent powerful weight to the conclusion that she did not suffer those alleged injuries/conditions, which conclusion sat well with the mechanism of the Accident as I have found in Part III(k) above.

(m)  Ambulance

125.The record by the ambulance crew that took P to PMH’s AED (“Amb Record”)[27] noted the following:

“C/C [chief complaint]

Trauma, MOI [mechanism of injury] (Blunt Trauma), Sites (LEFT HEEL INJURY)

Hx [history] of C/C [chief complaint]

Others (THE PATIENT WAS SLAMMED BY DOOR AT 2250HRS), Activities (Exercising), Location (Public Area)

……

PHYSICAL EXAMINATION

[diagram of the posterior side of a person with arrow pointing to left heel stating “Abrasion, L2cm”]

[MotorSensory, Full Power, +]

[Respiratory, Air Entry, Good] [Respiratory, Cough, 0], [Respiratory, SOB [shortness of breath], 0], [Respiratory, Sputum, 0], [Others, Chest Discomfort, 0], [Others, LOC [loss of consciousness], 0], Abd [abdomen] Tendernessº, Ankle Oedemaº, Chest Clear, Chest Painº, Dizzinessº, Incontinenceº, JVD [jugular vein distention]º, M & S [muscle and strength] Normal, Nausea & Vomitingº, Neck Tendernessº, [Others, Bleeding], [Others, Pain] ” (my emphasis)

P had no quarrel with the contents of the Amb Record because she agreed “…… 總之嗰度救護員點講就點講喇, [P] 唔記得喇, 救護員唔講大話喇, [P] 相信 ……”

126.P confirmed under cross-examination that “…… 除咗嗰隻左腳踭有啲流血嗰樣嘢 [P] 同呢一個嘅救護員講, 其他嘅嘢, [P] 係冇同救護員講 …….” When pressed on why she did not make frank disclosure of her alleged multiple injuries/conditions so that she could receive appropriate first aid treatment from the ambulance crew, especially when she claimed “……當天 [Left Door] 好大力咁樣撞到 [P] 受傷, 由頭去到條腰都受傷 ……” and “…… [P] 當時腰部劇痛 ……”, P said “…… 嗰時冇諗咁多嘢呀, 就諗住快啲返工呀, 因為唔返工冇錢 ……”, “…… [P] 擔心 …… 返唔到工啫, [P] 唔擔心其他嘢 ……”

127.Here, P offered a further reason to those in paragraph 123 above for keeping silent about her alleged multiple injuries/conditions, ie she was anxious to return to work as she would not be paid when absent from work. On balance, I find such reason unconvincing. If P was anxious to return to work, there was all the more reason for her to be full and frank with the ambulance crew and PMH’s AED (if not to her 2 seniors) about her alleged multiple injuries/conditions so she could receive expeditious and appropriate treatment to facilitate early recovery and prompt return to work. In my view (as bolstered by discussions in paragraphs 129-147 below), P’s silence suggested she did not suffer the extensive range / serious magnitude of the injuries/conditions as a result of the Accident as alleged.

128.As discussed below, P complained she suffered multiple injuries all over her body as a result of the Accident, but she gave different accounts to the ambulance crew and various doctors/therapists, which undermined her veracity.

129.Dizziness  The Amb Record recorded under the heading of “Physical Examination” that P did not have dizziness. P claimed she did have dizziness (see paragraphs 3, 86-87, 89, 120-121 and 123(a) above), but “…… [P] 隱瞞咗喇 ……” and did not mention dizziness to the ambulance crew (and also PMH’s AED) for inter alia the following reasons:

(a)	“…… 覺得頭暈 …… 同埋當時畀 [Left Door] 打到頭瘟瘟沌沌 ……”, “…… 所有痛症, 醫生唔識講, 喊喊喊 ……”;
(b)	“…… 即係工傷, 個 [Metal Door] 打到個頭表達能力差呀 ……”
(c)	“…… 一來又驚對 [D] 唔好 ……”, “…… 驚冇咗份工呀 …… [P] 好鍾意做嗰份工, [P] 做呢份工好開心喇, [P] 就係一個無辜 ……”, “…… 真係冇講呀, 入 [PMH] 都冇講呀 …… 見到醫生都冇講喇 ……”;
(d)	P “…… 好心隱瞞咗 …… 為 [D] 著想 ……”

In short, whilst P admitted “…… 係 [P] 隱瞞咗 ……”, ie “…… 嗰日關於暈厥呢樣嘢係冇同呢一個嘅白車嘅救護員講 ……”, and indeed “…… 入面醫院都隱瞞, 同 [PMH]都隱瞞呀 ……”, she claimed it was because “…… 嗰時畀個鐵門打到 [P] 瘟瘟沌沌, [P] 唔識表達, 亦都係驚冇咗份工, 亦都係隱瞞咗, 係幾種嘢加埋一齊 ……” P put forward these reasons in addition to those in paragraphs 123 and 126 above for keeping her alleged post-Accident injuries/conditions secret from the ambulance crew and PMH’s AED. I will deal with such reasons in Part III(o) below (see also paragraphs 123 and 127 above), but suffice to state here I am unconvinced by such reasons, and find on balance that P was silent because she did not suffer those multifarious injuries/ conditions immediately after the Accident as alleged. Moreover, I also note that it was not simply P keeping silent about her alleged dizziness for the ambulance crew made a positive finding of no dizziness as elicited from P during physical examination. P had no or no satisfactory explanation for this, especially when P agreed that the ambulance crew would not lie.

130.Head  P was constrained to acknowledge the Amb Record had no record of her allegation under cross-exmaination that “…… [Left Door] 撞到 [P] 嘅後腦, 個頭 …… 腫咗兩嚿, 同埋條頸紅咗 ……”. But she went on to say under cross-examination that “…… 嗰陣時頭…… 少少痛、頸少少痛囉 …… 但[P] 唔當一回事, 因為[P] 忍得痛囉, 同埋腰, 三個地方囉, 少少痛囉 ……”, “…… [P] 嗰時少少痛…… [P] 就唔理㗎喇 ……”, “…… 因為少少痛, [P] 忍得痛吖嘛 ……” (my emphasis), so “…… [P] 亦都冇同救護員講話 [P] 個頭撞到 ……”, “…… 入醫院都冇講呀 ……”

131.In my view, P’s suggestion that she only had mild/tolerable pain at head and neck after the Accident did not sit well with her evidence of strong physical signs of 2 swollen areas on the head as well as neck redness immediately after the Accident (see paragraph 88 above). Plainly, P was prepared to say whatever suited her in dealing with different facets of Mr Wong’s cross-examination, ie P claimed to have serious physical signs/symptoms to emphasise the severity of her alleged injuries as a result of the Accident, but claimed to have mild/tolerable pain to justify keeping quiet about her alleged injuries from the ambulance crew and PMH’s AED.

132.Further, P’s explanation in paragraph 130 above premised on her having only mild/tolerable pain at 3 areas of her body (ie head, neck and waist/lumbar) immediately after the Accident (which allegedly justified her silence about her multiple injuries/conditions vis-à-vis the ambulance crew and PMH’s AED) did not sit well with the P WStmt that claimed when P was still at the Lobby after the Accident, “…… [P] 當時腰部劇痛情緒不穩 ……” (my emphasis) (see paragraph 115 above). In my view, such contradiction undermined P’s explanation which I find unconvincing and unreliable.

133.P went on to claim under cross-examination that “…… [P] 又冇同救護員講 [P] 邊度邊度痛, [P] 就講腳囉, …… 都話隱瞞咗, 一直睇醫生 ……”, and “…… [P] 都冇同救護員講 …… 隱瞞咗, 加上嗰時畀個頭撞到瘟瘟沌沌, 又驚住擔心冇咗份工講咗 ……” But quite irrespective whether or not P kept silent and not tell the ambulance crew about her alleged head/neck injuries, the Amb Record and the medical notes showed the ambulance crew and the doctor at PMH’s AED actually physically examined P (see paragraph 125 above and paragraph 150 below). In my view, if (as P alleged under cross-examination – see paragraph 88 above) there were 2 swollen areas on her head and neck redness immediately as a result of the Accident, they should have been quite visible to the ambulance crew and/or the doctor at PMH’s AED upon physical examination. Yet, they did not note any head/neck injury in either diagrammatic or narrative form in the Amb Record and the relevant medical notes.

134.Certainly, the Amb Record did not say the ambulance crew found P’s “…… 個頭 …… 腫咗兩嚿, 同埋條頸紅咗 ……” Bearing in mind P’s acknowledgment that “…… 救護員唔會講大話, 救護員嗰度寫甚麼就甚麼 ……”, such silence in the Amb Record could only have meant on P’s case that the ambulance crew was either mistaken or missed such obvious physical symptoms. But this was not P’s evidence. Instead, she claimed under cross-examination that “…… 或者當時未紅, 慢慢、慢慢先紅喇, 可能咁喇, 因為 [PMH] 嗰時 …… 睇到 …… [P] 頸好紅, 「哎吔, 妳頸好紅呀, 妳仲有邊度痛呀?」咁樣, [P] 都有隱瞞咗, …… 好似啲痛係當時都唔係好痛, 慢慢、慢慢就好痛, 痛到你想死 …… 再加上返咗兩日工, 傷上加傷呀 ……”

135.When P was cross-examined on the discrepancy between her earlier testimony that immediately upon being hit by the Left Door “…… [P] 個後腦頭就已經有兩個腫咗、條頸已經紅咗, ……個背同兩個手臂都瘀黑晒、條腰都瘀黑晒嘅 ……” and her subsequent evidence that “…… 可能 [Left Door] 撞擊 [P] 嗰陣時 …… 個頭未有腫、個頸未紅 ……”, P explained (a) “…… 主要 [P] 後腦兩 ……度地方腫咗 ……”, “…… [P] 就知道, 摸到嘅 ……”,and (b) “…… 係 [PMH] 睇到 [P] 頸紅晒, [P] 睇唔到 [P] 嘅頸紅晒 ……”, “……係 [PMH] 睇到先同 [P] 講 [P] 嘅頸紅晒 ……” Still, such evidence did not sit well with the Amb Record that did not note any swollen area on the head upon physical examination.

136.But when Mr Wong carefully asked P to confirm her testimony under cross-examination that “…… [Left Door] 撞到 [P] 跌低咗, [P] 摸到 …… 個頭有兩個腫咗 …… 但條頸就睇唔到咋喎 ……” (see above paragraph), P changed to say “…… 當時 [P] 冇摸呀 …… 當時就唔係幾痛 …… 當時係微微痛 …… 當時 …… 痛啲程度 [P] 忍到呀, 因為 [P] 忍得痛喇, 係鐵打醫生講喇, 兩個鐵打醫生講 ……”, and “…… 一個禮拜後痛到想死 …… [P] 先摸「哦, 難怪喇」……” When further pressed on whether “…… 個頭有冇腫咗 ……” at the time of the Accident, P said “…… 當時 [P] 唔知呀, [P] 都冇留意佢, [P] 留意就快啲返工 ……”, “…… [P] 第一次發現 [P] 個頭腫咗 …… 就係一個禮拜後 …… 個頭痛到 [P] 想死囉, …… 由頭頂痛到落腳底, 全身痛 …… 嗰時 [P] 摸下先知, 哦, 原來腫咗 …… [P] …… 當時冇留意 …… 瘟瘟沌沌喇 ……”

137.In my view, P’s account of her head injury and her discovery of swollen areas on her head had evolved into various versions in the course of cross-examination, ie from 2 painful swollen areas on the head immediately upon being hit by the Left Door (see paragraph 88 above), to only mild/tolerable head pain upon being hit by the Left Door (see paragraph 130 above), to touching and realising 2 swollen areas on the head immediately after the Accident but not realising neck redness which later developed (see paragraphs 134-135 above), to not touching and not realising any swollen area on the head immediately after the Accident (see paragraph 136 above), and to discovering 2 swollen areas on the head a week later with severe pain all over the body (including the head) (see paragraph 136 above). P tried to explain away such shifting evidence by claiming “…… [P] 留意就快啲返工 ……” and alleging she was “…… 瘟瘟沌沌 ……” I will return to P’s reasons in Part III(o) below, but suffice to state here I find them unreliable and unconvincing. In my view, P was merely putting forward whatever that came to mind to shy away from difficult cross-examination.

138.On balance, I do not believe P’s earlier allegation that she developed 2 swollen areas on her head upon being hit by the Left Door, which signs/symptoms allegedly went unnoticed not only by the ambulance crew but also by the doctor at PMH’s AED during physical examination. Even on the basis of P’s own case (ie the Left Door hit the occiput or posterior part of her head/neck, which premise I do not accept), I still find P’s subsequent contention that she realised only a week later she had 2 swollen areas on the head quite implausible. After all, in such alleged scenario, P ought to have felt pain/discomfort at the back of her head when she lied down to sleep and/or when she combed/washed her hair. It was not a question of whether P could tolerate mild pain, but a question of whether there was any pain/discomfort that would have alerted her to check for any head injury. More importantly, if, as P claimed, “…… [P] 第一次發現 [P] 個頭腫咗 …… 就係一個禮拜後 …… 個頭痛到 [P] 想死囉, …… 由頭頂痛到落腳底, 全身痛 …… 嗰時 [P] 摸下先知, 哦, 原來腫咗 ……”, it was quite implausible for her not to inform PMH’s AED of such severe head pain and swollen areas on the head during the consultations on 13, 18, 22 February and 1, 8 and 15 March 2013. On balance, I find P did not suffer the head injury as she alleged.

139.Neck  The Amb Record (which P accepted to be correct) recorded positive finding that P had no neck tenderness upon physical examination by the ambulance crew, which suggested P told them she had no neck pain/soreness. When cross-examined on whether she told the ambulance crew this, P said “…… [P] 又唔記得係救護員有冇問, 個救護員嗰度話有問 [P] 就係問 [P] 喇 ……”, and claimed “…… 嗰陣時 …… 頸少少痛囉 …… 但 [P] 唔當一回事, 因為 [P] 忍得痛囉, ……”, “…… [P] 嗰時少少痛 …… [P] 就唔理㗎喇 ……”, “…… [P] 好忍得痛, [P] 當時少少痛囉 …… 醫生都話 [P] 忍得痛 ……” But I am not persuaded by P’s explanation, and reiterate the discussions/conclusion in paragraphs 88-89 and 130-138 above that highlighted the unreliability of her alleged head, neck and waist/lumbar injuries. When pressed, all P could say was “…… 都話隱瞞咗 …… [P] 冇同 [ambulance crew] 講 ……”, and she also did not tell the doctor at PMH’s AED. I find such silence unconvincing since it was P (when urged by Wong) who called for ambulance service the purpose of which was to give first aid at the scene and to transport her to hospital for treatment. There was little plausible reason for P to hide her injuries from the ambulance crew whom she trusted to tell the truth.

140.The Amb Record had no record of P’s allegation under cross-examination that “…… [Left Door] 撞到 [P] 嘅後腦, 個頭 …… 腫咗兩嚿, 同埋條頸紅咗 ……” (see paragraph 88 above) even though, in my view, neck redness would have been visible to the ambulance crew during their physical examination. P’s evidence on neck tenderness/redness underwent metamorphosis under cross-examination. At first, she claimed she had neck pain/redness immediately upon being hit by the Left Door, but later changed to say neck redness might not be immediately apparent, ie “…… 或者當時未紅, 慢慢、慢慢先紅喇, 可能咁喇 ……” (see paragraph 134 above). P further claimed “…… 好似啲痛係當時都唔係好痛, 慢慢、慢慢就好痛, 痛到你想死 …… 再加上返咗兩日工 [on 12-13 February 2013], 傷上加傷呀 ……” (see paragraph 134 above). Later, P claimed that even by March 2013 “…… [P] 睇唔到 [P] 嘅頸紅晒 ……”, and that she first discovered neck redness “…… 係 [PMH] 醫生同 [P] 講囉……”, but “…… 幾時 [P] 唔記得喇 …… 好似係3月份咩嘢 ……” “…… 因為一個禮拜後痛到 [P] 想死, 跟住要求醫生幫 [P] 打啲止痛針, 跟住醫生先睇到呀 …… 好似係13年3月份呀, …… [PMH] 醫生先同 [P] 講 ……” “…… 話「妳頸紅晒喇」咁囉 ……”, “…… [P] 先至知道 [P] 條頸紅晒 ……”, “…… 自己睇唔到呀 ……” When asked whether her husband told her she had neck redness, P said “…… 一人瞓一張床嘅, 乜都唔同佢講囉, 工傷以來 ……”

141.On balance, I do not accept P’s evidence. I note that even though P did not volunteer to the ambulance crew she had neck tenderness/redness, the ambulance crew physically examined her and still did not note any neck redness (for none was recorded in the Amb Record). Since P accepted the ambulance crew would not lie, I find on balance P did not have neck redness/tenderness at the time of the Accident. Further, I do not accept P’s claim that physical sign/symptom of P’s alleged neck injury (ie the Left Door hitting the back of her neck), eg neck redness, became apparent only a month later when it was allegedly picked up by the doctor at PMH’s AED in March 2013. There was no available medical opinion to justify such late onset of neck redness. Indeed, I find it quite implausible, even on P’s own case, for her neck redness to go unnoticed until March 2013. Even on a generous view of P’s evidence, she claimed to have discovered 2 swollen areas on her head and to have such severe pain from head to toe that she wanted to die about a week after the alleged Accident. In my view, even on P’s case, such alleged discovery and severe pain should have caused her to check (or to have her husband check) her body to see what ailed her, so she should have discovered neck redness/tenderness. and promptly raised the same with PMH’s AED for treatment. But, quite inexplicably, P did not so tell PMH’s AED when she attended consultations on 8, 13 and 22 February 2013. On balance, I am unconvinced P suffered neck injury as alleged as a result of the Accident. This was consistent with the opinion of P’s own Ortho Expert Dr Lam (see paragraph 337 below).

142.Arms and waist/lumbar  P claimed under cross-examination that at the time of the Accident “…… 少少痛、頸少少痛囉 …… 但 [P] 唔當一回事, 因為 [P] 忍得痛囉, 同埋腰, 三個地方囉, 少少痛囉 ……”, “…… [P] 嗰時少少痛 …… [P] 就唔理㗎喇 ……” (my emphasis), which contradicted her statement evidence that she had  severe waist/lumbar pain immediately after the Accident (see paragraph 70 above). Such patent contradiction undermined the veracity of P’s claim of having suffered serious injury to her waist/lumbar region.

143.Under cross-examination, P initially claimed “……個背同埋兩手臂瘀黑喇, 腰 …… 又瘀又黑喇……”, “……手背瘀黑、條腰都瘀黑 ……”, “…… 就係畀個 …… [Metal Door] 撞到就係咁喇 ……”, “…… 即係一撞嗰下就已經撞到呢度㗎喇 ……”, “…… 佢都瘀壞一笪 — [Metal Door] 撞到一下, 就係咁樣喇，就發生嗰啲 ……” (see paragraph 88 above), but later said she first discovered “…… 背部同埋兩隻手臂、同埋腰部瘀黑晒嘅 ……” when she “…… 睇鐵打 …… 鐵打講㗎嘛, 佢話「妳做咩嘢跌得咁犀利呀?」, 咁 [P] 話「唔係跌呀, 畀個鐵門打到喇」, 係睇鐵打嗰時 ……”, “……係喺2013年3月份, 第一次去深水埗 …… 嗰個好出名咩嘢關德興嗰度睇鐵打喇, 真係痛到頂唔順, 嗰時又唔識睇鐵打, 係人哋介紹, [P] 話「咩嘢叫鐵打? 」, 「鐵打係咁樣幫妳捽, 妳睇下喇」……”

144.On balance, I do not accept P’s above evidence that she was severely bruised in the arms, back of hands and waist/lumbar region as a result of the Accident. On a generous view, P might have some bruises at her buttock(s) for her fall onto the ground. But there was no medical evidence that black and blue bruises would become apparent about a month after blunt injury. On P’s own case, I find it suprising that she herself did not notice such alleged bruises and had to notified by the bonesetter when after all she claimed to have severe pain from head to toe a week after the Accident and should have checked her body for injuries. In my view, on P’s own case, there was no convincing reason for her to have kept quiet about black and blue bruises (which should have been visually obvious) during her attendances at PMH’s AED on 8, 13, 18 and 22 February 2013, and such bruises (eg “手背瘀黑”) would have been visually obvious to P as well as to the doctors during physical examination, but none were noted in the relevant records/reports.

145.Mouth and teeth  Even though P claimed “…… 咁現場 [Left Door] 撞甩埋 [P] 隻牙添, …… 有口腔流血 …… 有流血 ……” and “…… 打到 [P] 個嘴歪晒 ……”, the Amb Record had no record of injuries to P’s teeth, “…… [P] 個嘴歪晒 ……” and/or other site of bleeding apart from the left heel even though the ambulance crew physically examined P. Despite the alleged severity of the blunt injury to the back of her head that allegedly caused one molar tooth to fall out and another one to became loosened (P’s testimony under cross-examination), loss of a few teeth (P’s Letter dated 23 May 2017 to the Ortho Expert) or loss of 2-3 teeth (P’s account to the Psy Experts at the Psy Exam) (see paragraph 90 above), P testified under cross-examination that “…… [P] 都冇同救護員講打甩個牙 …… 隱瞞咗呀, 同埋又唔識講呀, 當時畀個鐵門打到 [P] 個頭瘟瘟沌沌、傻傻地, 又驚冇咗份工, …… 好多嘢搞埋一齊 ……”, “…… [P] 都為咗保住份工, 隱瞞住, 唔話畀啲救護人員同埋醫生聽 ……”

146.On balance, I do not accept P’s claim of teeth injuries as a result of the Accident, especially as I have found the Left Door did not come into contact with her head at the time of the Accident. P time and again resorted to saying “隱瞞”, but actually the ambulance crew carried out their own physical examination of P to independenty identify injuries. In my view, had there been bleeding in P’s oral cavity upon her tooth/teeth having fallen out and/or had “…… [P] 個嘴歪晒 ……”, the ambulance crew would have noticed the same, especially as they must have checked her oral cavity to confirm “[Respiratory, Air Entry, Good] [Respiratory, Cough, 0], [Respiratory, SOB [shortness of breath], 0] [Respiratory, Sputum, 0]” (see paragraph 125 above). Further, P would have required dental treatment following her alleged immediate loss of tooth/teeth to stop the bleeding of the gum and to repair wound(s), but there was no record of dental consultation in P’s medical records. In my view, P’s belated claim of teeth injuries first elicited in P’s Letter dated 23 May 2017 to the Ortho Experts was not credible or reliable.

147.In the circumstances, I find on balance that P’s immediate injuries as a result of the Accident that occurred in the manner as I have found were (a) left heel abrasion/contusion/laceration with some bleeding upon clipping by the Left Door, and (b) soft tissue injury to the buttock(s) and/or low back upon falling backwards onto the ground.

(n)  PMH’s AED

148.After the Accident, P was sent by ambulance to PMH’s AED. According to the P WStmt,

“16. …… [P] 告訴醫生被一扁很大及很重的金屬門撞到, 跌到地上3次, [P] 亦告知醫生 [P] 的右手手震未能寫字, [P] 當時左腳最痛, 未有告訴醫生那扇金屬門已經損壞的。醫生替 [P] 檢查段安排 [P] 打破傷風針及洗傷口, 開了藥物給 [P] 後使安排 [P] 離開。[P] 以為 [P] 於翌日可以照常上班, 所以沒有要求病假紙。”

P’s claim that “…… [P] 當時左腳最痛 ……” did not sit well with P’s evidence under cross-examination that “…… [P] …… 係知道係唔妥, 所以 [P] 先call白車呀, [P] 唔係因為 [P] 嘅腳流血call白車呀, [P] 係知道自己唔妥, 因為好嚴重, 起唔到身、又寫唔到字當時 ……”, “…… 暈呀, 暈呀, 瘟瘟沌沌, 暈呀 ……” (see paragraph 120 above). Further, given P’s insistence on “隱瞞” from PMH’s AED the extent of her alleged injuries, including her alleged injuries to her head, neck, shoulders, arms, back, waist/lumbar and teeth, I find it strange that (as P alleged above in the P WStmt) she would have disclosed to PMH’s AED she was unable to write due to right hand tremor. In my view, if P was prepared to tell PMH’s AED this, there was no justifiable reason why, on P’s own case, she would not have disclosed other even worse alleged injuries to, say, the head, neck, shoulders, arms, back, waist/lumbar and legs that would have greater need for medical attention.

149.According to P’s account to the Ortho Experts recorded in the Ortho 1^st Jt Report, “[P] was brought to [PMH’s AED]. She cannot remember whether X-Rays were taken. There was a bleeding wound over left heel and the wound was dressed. She said she did not take sick leave”. According to P’s account to the Psy Experts recorded in the Psy Jt Report, “[in AED] she was examined by the doctor, X-ray was taken. She had dressing of the wound. Bleeding was stopped. She had anti-tetanus toxoid injection. Then she was discharged home”.

150.The medical notes of PMH’s AED dated 8 February 2013 recorded in the Ortho 1^st Jt Report were as follows:

“- Left heel hit by large metal door at 10:50pm tonight (lobby entrance door)

- Left heel wound

- Still able to walk

- No HI [head injury], no LOC [loss of consciousness]

- PE [physical examination]: left heel abrasion + 1cm, no gap, Thompson sign normal

- Left heel ROM [range of movement] normal

- Calcaneus / calf non-tender

- Dressing left heel

- Refused medication

- No sick leave” (my emphasis)

151.According to the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED:

“2. [P] was seen by Dr Hui Ka Ling at 23:39 hr on 08/02/2013 at [PMH’s AED].

3. [P] was a security guard. She claimed to be hit by a large metal door at lobby at 22:50 hr on the same day whilst on duty and sustained left heel injury.

4. On arrival, [P] was conscious and alert. Blood pressure 116/69 mmHg, pulse rate 70/minute.

5. There was a 1cm abrasion at left heel. [P] was able to walk.

6. No head injury, neck injury or back injury was reported in the 1^st consultation. Back injury was documented on 18/02/2013. Neck pain was documented on 01/03/2013. Head injury was documented on 21/03/2013. All claimed to be related to the 1^st injury on 08/02/2013.

……” (my emphasis)

152.Under cross-examination, P admitted “…… [P] 同 [PMH] 嘅醫生講, 都係講緊 [P] 隻左腳踭受傷嘅啫, 就冇提及其他部位受傷 ……” (which was different from the P Wstmt that claimed P also told the doctor at PMH’s AED about her right hand tremor – see paragraph 148 above). P gave evidence that she “…… 入院時隱瞞咗 [Metal Door] 壞, 冇同 [PMH] 講、隱瞞咗啲痛冇同 [PMH] 講, 因為當時畀 [Metal Door] 打到個頭瘟瘟沌沌、傻傻地 …… 入院時隱瞞咗喇 ……冇同醫生講 …… 即係隱瞞咗驚冇咗份工, 因為 [P] 好鍾意做呢份工 ……”, “…… 返呢份工好開心喇 ……”, “…… [P] 做咗3年幾, 一日病假都未休過 …… 當時入院時又冇同醫生攞假紙、又冇攞藥食 ……”

153.In my view, the following matters were of note because they suggested P suffered (i) left heel abrasion/contusion upon the Left Door clipping her left heel (which injury were not serious as left heel range of movement was normal and calcaneus/calf was non-tender),[28] and (ii) soft tissue injury to her buttock(s) and/or low back when she fell to the ground, and not other injuries/conditions as she alleged (including the right hand tremor which she claimed she told the doctor at PMH’s AED):

(a)	P again put forward various reasons for “隱瞞” her alleged injuries/ conditions from PMH’s AED: (i) “…… [Metal Door] 打到個頭瘟瘟沌沌、傻傻地 ……”, and (ii) “…… 驚冇咗份工, 因為 [P] 好鍾意做呢份工 ……” But for reasons explained in Part III(o) below, I do not accept P’s explanations, which I find to be poor attempts to shore up weaknesses in her evidence that undermined her allegation of having suffered multiple injuries/conditions.
(b)	The medical notes of PMH’s AED as summarised by the Ortho Experts noted “No HI [head injury], no LOC [loss of consciousness]”, which meant the doctor at PMH’s AED did ask P and received confirmation from her that she did not have head injury or loss of consciousness. This went beyond P’s allegation that she merely “隱瞞” about her head injury, and suggested that P (on her own case) overtly gave such answer to the doctor at PMH’s AED that she had no head injury.
(c)	Quite irrespective of whether P “隱瞞” about her multiple injuries/ conditions or not, the doctor at PMH’s AED physically examined P and did not find any injury other than left heel abrasion, and there was no record of any swollen areas, bruises, redness and/or any serious tenderness/pain.
(d)	It was not the case (as P alleged) that P did not ask for medication so none was prescribed. Rather, according to the medical notes of PMH’s AED as summarised by the Ortho Experts, it was P who refused medication. In my view, if P was in serious pain/discomfort as she alleged, she would not have refused medication (eg analgesics).
(e)	The medical notes/reports of PMH’s AED did not even mention “…… [P] 的右手手震未能寫字 ……”, which P in the P WStmt claimed to have informed the doctor at PMH’s AED. In fact, record of hand tremor appeared in the records of P’s triage assessment on 1 March 2013 summarised in the Psy Jt Report (see paragraph 197 below).

(o)  P’s reasons for keeping silent about her injuries/conditions

154.P raised a number of reasons for keeping silent and not telling the ambulance crew and the doctor at PMH’s AED (or, on P’s case, even going further to give wrong answer) about her various alleged signs/symptoms and alleged multiple injuries/conditions, but on balance I find none of them plausible or convincing.

155.First, P claimed the Left Door “…… 打到個頭瘟瘟沌沌、傻傻地 ……”, but I have found the Left Door did not come into contact with the back of P’s head. In any event, as Mr Wong submitted, despite being allegedly “…… 瘟瘟沌沌、傻傻地 ……” (see paragraphs 129(a), 133 and 145 above), P was able (right hand tremor aside) to make record of the Accident in the OP Book, and to give account of the Accident to the ambulance crew (as evident from the Amb Record – see paragraph 125 above) and to the doctor at PMH’s AED (as summarised in the 1^st Ortho Report – see paragraphs 150-151 above). If despite being allegedly “…… 瘟瘟沌沌、傻傻地 ……” she was still able to give account of the Accident, I find it strange that she could not say anything about her alleged multiple injuries/conditions (apart from her left heel laceration) even by simply pointing to relevant parts of her body and telling the ambulance crew and doctor they hurt.

156.Secondly, P said she chose to hide her multiple injuries/ condition from the ambulance crew and PMH’s AED because “…… 就諗住快啲返工呀, 因為唔返工冇錢 ……”, “…… [P] 擔心 …… 返唔到工啫, [P] 唔擔心其他嘢 ……” (see paragraph 126 above) and/or she worried she might lose her job (see paragraphs 129(c), 133, 145 and 152 above). Mr Wong submitted such contention defied logic.

157.I note P claimed she was not thinking about whether or not she would lose her job when she was at the Lobby in the immediate aftermath of the Accident (see paragraph 121 above), but she did not explain why so very shortly thereafter at the ambulance and/or at PMH’s AED she became so concerned about returning to work and/or losing her job, especially when she said in the P WStmt that “…… [P] 以為 [P] 於翌日可以照常上班, 所以沒有要求病假紙 ……” (see paragraph 148 above). I bear in mind it was P’s senior Wong who urged her to call for ambulance service to take her to hospital for medical treatment. There was no suggestion that P’s seniors required her to forgo medical treatment, insisted she had to complete her mid-shift, and/or threatened to terminate her employment because of her injury on duty.

158.Thirdly, P claimed she was unable to clearly articulate her multiple injuries/conditions to her seniors, the ambulance crew and/or PMH’s AED. However, as seen in the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED (see paragraph 151 above) and the P WStmt (see paragraph 148 above), P was able to tell the doctor at PMH’s AED that she had left heel abrasion and that “…… [P] 當時左腳最痛 ……” I find it quite implausible that she would not be equally able to simply point to her head, neck, shoulders, arms, back, waist/ lumbar and legs, and tell the doctor those parts of the body hurt too if she had also injured those body areas (see paragraph 155 above).

159.P claimed in her evidence-in-chief that “…… 跟住一直係--隱瞞咗, 家陣 …… 一痛, 見到醫生唔識講, [P] 睇咩嘢醫生, 一下冇理--鐵打又好、中醫又好, 七個鐵打、四個中醫又好, 同埋政府精神科、急症室、乜都好, 見到醫生唔識講, 唔代表 [P] 唔係工傷, 係咪先? ……” When pressed under cross-examination to explain “…… [P] 話唔識表達 ……”, P said “…… 解釋就係驚冇咗份工，講咁多痛，驚冇咗份工囉 ……” But when it was suggested to her that if she worried about losing her job by speaking out it would be “…… 係識表達, 但係 [P] 選擇唔表達, 因為 [P] 擔心 ……”, P then said “…… [P] 選擇唔表達, 同埋擔心咗冇份工囉 …… 再加上個頭瘟瘟沌沌, 真係影響到 [P] 唔識講囉, 中醫講得啱囉 ……”, and later said again “…… 係呀, [P] 當時係唔識表達, 因為畀個頭打到 [P] 瘟瘟沌沌, 係唔識表達呀 …… 又隱瞞咗 ……”

160.In my view, P’s confusing evidence as to her alleged inability to articulate her alleged multiple injuries/conditions because she was “瘟瘟沌沌” as a result of the Accident did not sit well with her claims that it was not necessary to mention those injuries (see paragraphs 121 and 123(e) above) and that she feared she would lose her job if she mentioned such injuries (see above paragraph), which reasons suggested it was a knowing and considered decision by P not to mention her multiple injuries/conditions. In the end, she tried to say it was a combination of reasons that resulted in her keeping her multiple injuries/ conditions from the ambulance crew and the doctor (see eg paragraph 129 above). But in my view, the more gloss P added to justify her reticence the more unlikely her explanation became, which explanations I find on balance to be quite unreliable.

161.Indeed, according to the medical reports by PMH’s AED, P was quite able to articulate to the doctors at PMH’s AED about her back injury in/about 10 days (18 February 2013), her neck injury in/about 20 days (1 March 2013) and her head injury in/about 27 days (21 March 2013) even though, according to P under cross-examination, she had greater sufferings a week after the Accident (see paragraph 136 above). But more on these matters below. In my view, P had no good reason for keeping quiet about her alleged multiple injuries/conditions as a result of the Accident at her medical consultations at PMH’s AED not just on 8 February 2013 but also on the further consultations at PMH’s AED until 18 February, 1 March and 21 March 2013 respectively.

162.Fourthly, P claimed she was reticent about her alleged multiple injuries/condition because “…… 一來又驚對 [D] 唔好 ……” and “…… 好心隱瞞咗 …… 為 [D] 著想 ……” (see paragraph 129(c)-(d) above). Even on P’s case, I am unable to see how it would be good for D if P did not get prompt and appropriate treatment by keeping her multiple injuries/conditions to herself. It would not have facilitated her recovery and return to work, which meant D would be put to the trouble of re-arranging shift schedules and dealing with reduced manpower. In any event, it was clear even on P’s own case that Wong urged P to call for ambulance service, to seek medical treatment and to ask for sick leave certificates.

(p)  Summary

163.I find on balance that as a result of the Accident P’s immediate injuries were 1-2cm abrasion of her left heel when it was clipped by the Left Door, and mild soft tissue injury to her buttock(s) and low back when her knees buckled and she fell to the ground. On balance, I do not accept P’s account of alleged multiple injuries as a result of the Accident. In any event, I am not satisfied D was liable for the Accident and P’s injuries as I have found.

164.By reason of the above matters, P’s claim is liable to be dismissed. However, for the sake of completeness and on the assumption that D was liable to P (which I disagree), I will proceed to consider the question of quantum of damages.

IV.  QUANTUM

(a)  Personal history

165.P was born in Guangdong, Mainland China on 18 October 1975, so she was 37 years old at the time of the Accident. P’s father was a fishmonger and died[29] when she was 3-4 years old. She ranked 4^th amongst 5 siblings.[30] According to the Psy Jt Report, P told the Psy Experts her mother of 81 years died of choking by sputum in 2013 shortly after the Accident. But in the clinical psychology progress notes of CMC’s clinical psychologist for the consultation on 23 June 2014, it was said that P’s mother passed away in April 2014.

166.According to P’s account to the Psy Experts, she was happy in her childhood. She was educated up to junior high school (ie Form 1[31] or Form 3[32]) in Mainland China with average school results, and could read and write Chinese. She had good relationship with her classmates. After she finished her studies, P stayed home to help her mother (who sold clothes for her living) with machine sewing for 2 years. When P was 17-18 years old, she helped out as a salesgirl at her elder sister’s shop for 3-4 years. In her early 20s, P went to Shenzhen, Mainland China to work as a Chinese restaurant waitress for 5-6 years.

167.P married in 2003. According to P’s account to the Psy Experts,[33] P’s husband (a Hong Kong resident) had leg injury about 2 years ago and worked as part-time substitute taxi driver for 1 year, but he returned to full time taxi-driving by the time of the Psy Exam. At the time of trial, P’s husband was his 70s. P’s 2 stepsons from her husband’s 1^st marriage were under the care of their own mother. P herself had no offspring as yet. According to the Psy Jt Report, P had a spontaneous abortion in 2007 or 2008 when she ran after a thief who stole money from her husband’s taxi. She was temporarily sad after the incident.

168.According to the Psy Jt Report, P ran a small eatery for 2 years in Mainland China after her marriage. She came to Hong Kong on one-way ticket in 2009. After coming to Hong Kong, she lived with her husband, and had no close relatives in Hong Kong.[34] P worked as a waitress in a Chinese restaurant for a few months, and then started to work for D as a security guard. P told the Psy Experts at the Psy Exam that she coped with her work as a security guard, had good relationship with her colleagues, and did household chores after work.

169.P was right handed. She was a non-smoker and non-drinker, and claimed to enjoy past good health with (a) no personal/family history of mental illness and no history of psychiatric treatment/counselling,[35] (b) no known history of allergy or substance abuse,[36] (c) no history of chronic medical illness,[37] and (d) no history of accident or work-related injury.[38]

170.At the Psy Exam, P described herself as a happy, optimistic, extroverted and mild-tempered person, who was not anxiety-prone and who liked to be with friends. Her leisure activities included going to tea, singing karaoke and taking trips with friends/colleagues. She claimed to be happy in life and did not have any stress. According to the Ortho 1^st Jt Report, P used to swim (pool) all year round during vacation before the Accident, but could not recall how frequently she swam.

(b)  Further treatment

171.Mr Wong in his written opening submissions submitted that after the Accident P “…… 開始報稱她全身都有痛楚, 然而她每次向醫生報稱所受影響的部位卻不盡相同: 有時上肢痛, 有時卻沒有; 有時心口痛, 有時卻沒有; 有時提到頭暈, 有時卻沒有 ……”, and “…… [P] 對於其頭痛、頸痛、背痛及下肢痛方面向不同醫生描繪的痛楚程度 (或表現出的傷殘程度) 並不吻合 ……” As seen in Part III(k)-(o) above and the discussions and findings in Part IV(b) herein, I find there is much force in such contentions.

172.Day after Accident (9 February 2013)  According to the P WStmt, P’s condition worsened on the day following the Accident:

“17. 第二天, [P] 起床時腰部劇痛, 不能起床, [P] 打算致電上司 [Wong], 剛巧 [Wong] 致電 [P] 查問 [P] 於昨天看 [AED] 有多少病假, [P] 告訴 [Wong] [P] 沒有病假紙, 亦告訴他 [P] 的腰部劇痛, [Wong] 於是叫 [P] 返醫院取病假紙。[P] 於是返回 [PMH’s AED] 要求病假紙, 醫生給予 [P] 病假自2013年2月8日至2013年2月11日。”

173.P in her examination-in-chief said that “…… 點知返嚟個頭瘟瘟沌沌 …… 頭同埋腰起唔到床囉, 成間屋轉轉轉, 又暈又嘔囉 …… 跟住就諗住打電話畀 [D] 喇, 講返唔到工喇, 正係攞電話嘅時候, 啱啱 [P’s] IC [Wong] 就打電話畀 [P] 囉 …… (聲音模糊)「我頭好暈, 我返唔到工呀」, [Wong] 問 [P] 有冇攞假紙, 嗰晚黑 [P] 冇攞假紙, [P] 因為頭好暈, 又暈又嘔, …… 個頭又痛, 返唔到工呀, 「咁妳返去同醫生講攞病假紙喇」…… 跟住 ……第二日就返去睇醫生喇, 跟住醫生開四日病假畀 [P]囉 ……” (my emphasis). P gave a similar account to the Psy Experts as recorded in the Psy Jt Report, ie “[the] next morning, she was unable to get up from the bed because of headache, dizziness, nausea and low back pain. She went to [PMH’s AED] again for treatment. She was given 4 days of sick leave” (my emphasis).

174.On P’s own case, 2 matters were of note when she claimed her condition worsened on the day following the Accident: (a) she actually felt severe headache, dizziness, nausea and low back pain that she could not even get out of bed or go to work, and (b) she was able to and did actually tell Wong she could not return to work because “腰部劇痛”,”我頭好暈” and “頭好暈, 又暈又嘔, …… 個頭又痛”. These assertions did not sit well with P’s allegation that she developed serious pain/headache only a week after the Accident (see paragraph 136 above) or her allegation that she hid her multiple injuries/conditions from D and the treatment doctors/therapists because she was confused, she did not realise her injuries were serious, she was unable to articulate her complaints, and she feared losing her job (see Part III(o) above), which reasons I have rejected. Indeed, (b) above clearly showed P had no concern over telling D about her alleged injuries/conditions. In my view, not only did such disclosure and her inability to return to work not put P’s job at risk, it elicited Wong’s concern and encouragement for P to return to PMH’s AED to obtain sick leave certificate, which clearly suggested Wong/D expected P to disclose her injuries/conditions to PMH’s AED for such purpose.

175.In my view, on P’s own case, after she disclosed her alleged injuries/conditions to D on 9 February 2013, there was little if any reason for her to hide them from PMH’s AED. But P did not tell the doctor at PMH’s AED about her back injury, neck pain and head injury until 18 February, 1 March and 21 March 2013 respectively (see paragraph 151 above). I find on balance P had no credible explanation for such gradated disclosure, which in my view reflected P’s gradual overstatement of her complaints. Even though P returned to PMH’s AED on 9 February 2013 to obtain sick leave certificate for her allegedly worsened condition such that she claimed she could not return to work, I note the medical certificate issued on 9 February 2013 by PMH’s AED only gave “left heel contusion” as reason for 4 days’ sick leave. I find on balance it was not that P refrained from disclosing her alleged multiple injuries/conditions, but there were no such multiple injuries/conditions as she alleged.

176.12-13 February 2013  According to the P WStmt, P returned to work on 12-13 February 2013, and suffered significant pain on those days:

“18. 於2013年2月13日 [P] 忍受腰部疼痛照常上班, 直至2013年2月13日晚上, 當 [P] 正在巡樓時, 由於左腳腫脹、右腳肌肉凹陷、右邊臀部凹陷、腰部、左腳、背部及頸部劇痛，不能落樓梯, [P] 於是致電 [Wong], [Wong] 於是叫 [P] 去看醫生, 及會派同事頂替 [P], 由於當時接近下班時間, [P] 勉強扶著樓梯的扶手落樓梯完成巡樓工作, 返回 [Station] 等待下班。下班後, [P] 立即到 [PMH’s AED] 求診，醫生替 [P] 的腰及左腳照 X光, [P] 自 2013年2月14日起一直放病假, 及一直在 [PMH’s AED] 接受治療。” (my emphasis)

P in her examination-in-chief said that “…… 休完四日, 就跟住第二日12、13號返咗兩日工囉, 傷上加傷囉。…… 第四次巡樓 [ie the 2^nd patrol on 13 February 2013] 嘅時候, 差啲碌落個樓梯, 第四次落唔到樓呀, 因為個頭好暈呀 …… 第二次落唔到樓梯先冇做囉 ……” (my emphasis)

177.According to P’s account to the Ortho Experts at the Ortho Exam, when P returned to work on 12-13 February 2013 “she was unable to cope with patrol duties. By the 4^th patrol [ie the 2^nd patrol on 13 February 2013], whilst walking downstairs, she felt she would not cope ……” According to P’s account to the Psy Experts at the Psy Exam, P claimed she returned to work after expiry of sick leave and “was able to patrol the building. Yet during the second occasion to patrol the building on the second day she returned to work she almost fell on the staircase. She sat on the staircase to rest for some time. Then she continued her duties. She called the management and was advised to stay on at work as it was just another two hours before she could go off from work. After she went off work, she went to [PMH’s AED]. She was given sick leave ……”

178.According to the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED, x-rays left ankle and lumbro-sacral spine were done on 13 February 2013. But I do not agree that PMH’s AED ordered such x-rays because P had “左腳腫脹、右腳肌肉凹陷、右邊臀部凹陷、腰部、左腳、背部及頸部劇痛” and “個頭好暈呀” as she alleged. As Dr Yip noted in the Ortho 1^st Jt Report, at P’s 2^nd consultation at PMH’s AED on 13 February 2013, she complained of residual left ankle pain and bilateral back “fatigue” with the original text in parenthesis, and was given 3 days’ sick leave because of limping, which was consistent with the left heel abrasion. Given such circumstances, I find it unsurprising that PMH’s AED ordered the aforesaid diagnostic x-rays, and gave “left heel contusion” as medical reason for 3 days’ sick leave in the medical certificate issued on 13 February 2013.

179.More importantly, P did not report to PMH’s AED any other bodily injury apart from left heel abrasion/contusion even 5 days after the Accident. I find this strange on P’s own case when (a) she claimed to be aware that her pain increased and her condition worsened to the extent that she could not continue her 2^nd patrol of the staircase of the Building on 13 February 2013 and that she had to sit down and rest, (b) she was able to articulate her increased pain and worsened condition to Wong, who urged her to seek medical treatment when she went off duty, (c) there was no reason to fear for her job and/or to hide her increased pain and worsened condition from PMH’s AED because she had already told Wong/D who urged her to seek medical treatment, and (d) with increased pain and worsened condition she must have known that she had to tell PMH’s AED in order to have appropriate/prompt medical treatment to facilitate expeditious recovery and return to work. In my view, P had no or no credible answer to these matters, and was unable to satisfactorily explain why she deferred mention of the alleged back, neck and head injuries to PMH’s AED to 18 February, 1 March and 21 March 2013 respectively, which seriously undermined the veracity of her allegations as to “左腳腫脹、右腳肌肉凹陷、右邊臀部凹陷、腰部、左腳、背部及頸部劇痛” and “個頭好暈呀”, none of which were consistent with the mechanism of injury in respect of the Accident as I have found.

180.Moreover, P’s allegation that her pain increased and her condition worsened on the day following the Accident and within 4-5 days of the Accident (which were so unbearable that she could not return to work) did not sit together with her claim under cross-examination that she only had mild pain (which was bearable) at the time of the Accident, but her head, neck and waist/lumbar pain turned severe only after a week (see paragraph 136 above and paragraph 181 below).

181.14 February 2013 According to the P WStmt, P stated “…… [P] 於2013年2月14日帶病假紙返回 [D] 公司位於華瑤邨的 [Control Room] 交予上司, 上司要求 [P] 自行填寫工傷表格, [P] 申報 [P] 的頸部、背部、腰部及左腳都有受傷, 然後將表格交給 [Wong] ……” (my emphasis). Since then, P had not returned to work. In her re-examination, P claimed “…… 2月14號 …… 阿頭話「妳邊度痛寫邊度」, [P] 頭、頸、背、腰、蘿柚咁樣痛, [P] 由2月15號由頭痛到落個全身痛, [P] 睇鐵打由頭到腳十幾個地方收費 ……”, but D later “…… 刪除 [P] 頸、背、腰工傷紀錄2月14號, [D] 話 …… [P]乜都係假 …… 點解要刪除 [P] 頸、背、腰工傷紀錄 ……”

182.In my view, P’s above account demonstrated the implausibility of her case and the unreliability of the reasons she put forward for “隱瞞” about her alleged multiple injuries/conditions from PMH’s AED. Even on P’s own case, within 6 days of the Accident (ie by 14 February 2013), she was well aware of her neck, back, waist/lumbar and left leg injuries, was well able to articulate them and write them down, and had no fear of disclosing such injuries to D despite her alleged concern about losing her job, her wish to return to work and her alleged intention to protect D. Given such articulation, I am also unable to see how P “…… 因為畀 [Left Door] 打到瘟瘟沌沌係唔識表達呀 …… 表達能力差呀 ……” as she alleged. P also had no explanation as to why, on her own case, she would set out her neck, back, waist/lumbar and left leg injuries without mention of dizziness, nausea and headache on 9 February 2013 (see paragraphs 172-173 above) and her right buttock and right leg injury on 13 February 2013 (see paragraph 176 above) when she had articulated those alleged problems to Wong/D. In all the circumstances, I am unconvinced that P suffered the multiple injuries/ conditions as alleged apart from left heel abrasion/contusion and/or soft tissue injury to her buttocks and low back.

183.According to P’s account to the Ortho Experts at the Ortho Exam, “[P] then consulted again [PMH’s AED] for many times. She also saw bonesetter (Traditional Chinese Medicine) for many times but she cannot remember the detail. She also saw different doctors but she cannot remember the detail”. According to P’s account to the Psy Experts at the Psy Exam, “[P] had persisting headache and pain from head to toe all over the body. She sought treatment from a bone setter and a herbalist ……”

184.18 February 2013 According to the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED, back injury was documented 10 days after the Accident on 18 February 2013 (see paragraph 151 above). Dr Yip noted in the Ortho 1^st Jt Report it was on 18 February 2013 that P coincidentally mentioned slip and fall injury with back sprain, but her predominant complaint was still the left heel injury. “She still did not need any medication. She still walked unaided”. The medical certificate dated 18 February 2013 showed PMH’s AED granted 5 days’ sick leave for “old L heel contusion, back pain”.

185.P said under cross-examination that “…… [P] 都唔知 ……”, “…… 大概十日之後, [P] 先同醫生講 [P] 背部都有受傷 …… 因為痛到唔識講呀 ……”, “…… 總之 [P] 痛到頂唔順 …… 要求 [PMH] 打止痛針 ……”, “…… 所以嗰一刻, [P] 就覺得「我真係要治療喇, 冇咗份工都冇辦法喇, 我點都要同醫生講」……”, “…… 所以都係唔隱瞞就講咗喇 …… 痛頂唔順就講喇, 痛頂得順就唔講喇 ……”, “…… [PMH] 見到 [P] 啲傷勢囉 ……” (my emphasis)

186.In my view, P’s allegation of “隱瞞” about her back injury and severe waist/lumbar pain until 18 February 2013 did not make sense at all even on her own case. P gave evidence that a week earlier on 9 February 2013 (ie the day after the Accident), she had already told Wong “…… [P] 的腰部劇痛, [Wong] 於是叫 [P] 返醫院取病假紙 ……” (see paragraph 172 above). Given D’s alleged awareness of severe waist/lumbar pain as informed by P, P could not have been worried about losing her job as a result of disclosure of severe waist/ lumbar pain to PMH’s AED. Rather, since Wong/D urged P to obtain sick leave certificate, she should have disclosed her alleged severe waist/ lumbar pain to PMH’s AED on 9 February 2013 (when she returned to the hospital for sick leave certificate) and/or on 13 February 2013 (when she had her 2^nd consultation). Her failure to do so spoke ill of the veracity of her allegation of multiple injuries/conditions as a result of the Accident.

187.Strangely, P also did not tell PMH’s AED her other injuries (eg head and neck injuries) all in one go, and deferred telling PMH’s AED about her alleged neck pain and head injury until 1 and 21 March 2013 respectively (see medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED and paragraph 151 above). This, of course, flied against her own evidence that by 18 February 2013 “…… 嗰一刻, [P] 就覺得「我真係要治療喇, 冇咗份工都冇辦法喇, 我點都要同醫生講」……”, “…… 所以都係唔隱瞞就講咗喇 …… 痛頂唔順就講喇, 痛頂得順就唔講喇 ……” (see paragraph 185 above). In particular, P confessed under cross-examination that the doctors did ask “…… 「妳仲有邊度痛喇?」……”, but claimed she remained silent because “…… 就唔好意思講咁多喇 ……” and “…… 因為畀 [Left Door] 打到瘟瘟沌沌係唔識表達呀 …… 表達能力差呀 ……” But when pressed on why she did not mention to PMH’s AED her head injury on 18 February 2013 when she gave evidence under cross-examination that about a week after the Accident she discovered 2 swollen areas on her head (see paragraph 136 above), P claimed “…… 又隱瞞咗囉 …… 唔想講咁多痛畀醫生聽, 加上又唔識表達囉, 有幾方面溝埋一齊, 又驚冇咗份工囉, 又--個頭打到瘟瘟沌沌 ……” (my emphasis), “ …… 所以四個中醫話「妳畀個門撞壞妳腦」, 一個話「妳個頭會影響妳」, [P] 話「我睇醫生唔識講痛呀」, …… 所以嗰啲人叫 [P] 去同 [LD] 講喇, 勞工處 …… 教 [P] 寫張紙同醫生講, 但每次都唔識講喇, 揸住張紙都唔識講 ……” But in my view, all P had to do was simply to point at her head to say it hurt, which should pose no difficulty for her. P had no answer to this, and merely reiterated “…… 真係唔識表達, 又驚冇咗份工 …… 好多嘢憂呀, 又加上個頭又瘟瘟沌沌 ……”

188.In my view, for reasons in Part III(o) and paragraphs 174-175 and 179-180 above mutatis mutandis, P’s explanations cannot be right even on her own case, especially when P was specifically asked by the doctor at PMH’s AED whether other parts of her body were painful (see above paragraph). On balance, I do not accept P’s claim that she was too shy to mention her other injuries (eg head and neck injuries, “左腳腫脹、右腳肌肉凹陷、右邊臀部凹陷、腰部、左腳、背部及頸部劇痛” and “個頭好暈呀”) when she was able to articulate some of these alleged injuries/conditions to Wong on 9 and 13 February 2013, when she was able to state alleged neck, back, waist/lumbar and left leg injuries in the EC form on 14 February 2013, and when she decided on 18 February 2013 she required treatment even if she were unable to keep her job. For such reasons, I also do not accept P “畀 [Left Door] 打到瘟瘟沌沌係唔識表達呀”. In my view, P did not have any credible explanation why “唔想講咁多痛畀醫生聽” when she claimed to be anxious to seek treatment for her alleged injuries.

189.22 February 2013 Dr Yip noted in the Ortho 1^st Jt Report that P’s principal complaint for the consultation on 22 February 2013 at PMH’s AED was still left heel contusion. “[P] reported that the left sided back pain was better. There [were] no lower limb symptoms. She still did not need medication”. P was given 7 days’ sick leave until 28 February 2013 for “old L heel contusion, back pain”.

190.In my view, even on P’s own case, there was no good reason for P to keep quiet at such medical consultation about her alleged multiple injuries, eg (a) head and neck injuries, (b) headache, dizziness, nausea, low back pain, and severe waist/lumbar pain (see paragraphs 173-174 above), and (c) “左腳腫脹、右腳肌肉凹陷、右邊臀部凹陷、腰部、左腳 …… 及頸部劇痛” and “個頭好暈呀” (see paragraphs 176-180 above), which undermined the veracity of such allegations. On P’s own case, she was able to articulate her alleged injuries/conditions to Wong on 9 and 13 February 2013, she was able to state neck, back, waist/ lumbar and left leg injuries in the EC form on 14 February 2013, and she was able to inform PMH’s AED that she suffered back injury on 18 February 2013. But despite P’s alleged awareness of multiple injuries/ conditions on 8, 13 and 18 February 2013, she did not require therapeutic medication, or at least none was prescribed by PMH’s AED during consultations on those days.

191.Significantly, although P claimed “左腳腫脹、右腳肌肉凹陷” and “左腳 …… 劇痛” (see paragraph 176 above), Dr Yip stated that the consultation record on 22 February 2013 noted “no lower limb symptoms”. Further, the suggestion of “右腳肌肉凹陷” was quite inexplicable when it was P’s left (not right) heel that was clipped, and her right foot was the Forward Foot in front of her body which logically could not and actually did not come into contact with the Left Door at the time of the Accident. It was only on 20 October 2014 (more than 1½ years after the Accident) that P presented to South Kwai Chung Jockey Club General Outpatient Clinic (“SKCJC GOPC”) with muscle wasting over the right buttock, but her back was then non-tender.[39] There was no medical evidence to support P’s alleged development of “右腳肌肉凹陷、右邊臀部凹陷” within 2 weeks of blunt and/or soft tissue injury.

192.Late February 2013  On 27 or 28 February 2013, D (as employer) submitted Form 2 to the Labour Department. The Form 2 described the Accident as “協助救護員開門, 被門撞傷左腳踭” at “華瑤樓B座側門”. As for parts of the body that were injured, “ü” sign was put against “盤骨 / 腹股溝”, “小腿”, “足踝” and “腳”. This was consistent with P having suffered left heel abrasion/contusion and soft tissue injury to the buttock(s) / low back as a result of the Accident. In my view, D’s description of the Accident and consequent injuries in Form 2 was readily understood because D had access to and did review the CCTV Recording that revealed the mechanism of the Accident (see paragraph 115 above) irrespective of P’s assertions of neck, back, waist/ lumbar and leg injuries on 14 February 2013 (see paragraph 181 above). Further, the medical certificates that P provided to D only gave “left heel contusion” and “back pain” as medical reasons for granting sick leave.

193.P in the P WStmt and under cross-exmaination complained that “…… 實際係 [D] 刪除 [P] 頸、背、腰工傷紀錄 ……”, so P “…… 同先生講「我公司刪除我頸、背、腰工傷紀錄」……”, “…… 搞到今日 …… 咁砌 [P] 生豬肉, [P] 唔怕喇 ……” But given my discussions and findings in Part III above, especially on the mechanism of injury at the time of the Accident, and the injuries described in the medical certificates issued by PMH”s AED, I reject P’s above complaint and find D’s Form 2 correctly reflected P’s physical injuries as a result of the Accident in the acute phase.

194.1 March 2013  In the Ortho 1^st Jt Report, Dr Yip noted that by 1 March 2013 P started to complain of neck pain since 13 February 2013. “She was noted to be very anxious. There was no neurological deficit. Motor and sensory examination was normal. She walked unaided. She declined drug medication”. This was consistent with the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED that no neck injury was reported in the 1^st consultation on 8 February 2013, and that neck pain was documented on 1 March 2013 with X-ray cervical spine and skull bone done on the same day. The medical certificate issued on 1 March 2013 showed PMH’s AED granted 7 days’ sick leave for “neck pain” without further mention of the left heel contusion, which suggested the latter had largely resolved.

195.I note Dr Yip’s summary of the medical notes of PMH’s AED showed that on 1 March 2013 P told the doctor she had neck pain “since 13 February 2013”, which suggested P “隱瞞” about her neck pain (despite awareness of the same) at consultations with PMH’s AED on 13, 18 and 22 February 2013. But this did not sit well with P’s initial evidence under cross-examination that right upon “…… [Left Door] 撞到[P] 嘅後腦, 個頭 …… 腫咗兩嚿, 同埋條頸紅咗 ……” (my emphasis) (see paragraph 88 above), and her later evidence under cross-examination that her neck redness “…… 或者當時未紅, 慢慢、慢慢先紅喇, 可能咁喇 ……” (see paragraph 134 above). It was still later under cross-examination that P claimed “…… [P] 睇唔到 [P] 嘅頸紅晒 ……”, “……係 [PMH] [in early March 2013] 睇到先同 [P] 講 [P] 嘅頸紅晒 ……” (see paragraph 140 above). But even so, P’s allegation that it was the doctor at PMH’s AED who discovered her neck redness was quite different from Dr Yip’s account of the medical notes that it was P who volunteered information about neck pain “since 13 February 2013”. In my view, P was unable to and did not explain or credibly explain such inconsistencies.

196.For reasons explained above, I have found P’s alleged “隱瞞” implausible. P claimed “…… 好似啲痛係當時都唔係好痛, 慢慢、慢慢就好痛, 痛到你想死 …… 再加上返咗兩日工, 傷上加傷呀 ……”, but even on such premise (which I disagree) P should have already complained about neck injury/redness/pain latest at her consultation with PMH’s AED on 13 February 2013. Further, given P’s allegation of severe pain all over her body, including headache, neck pain and back pain since 9 and/or 13 February 2013 and her decision since 18 February 2013 not to stay silent about her injuries/conditions any longer and to seek treatment to facilitate return to work as soon as possible, I find it strange even on P’s own case that she would defer telling PMH’s AED about her neck injury/pain until 1 March 2013 and not disclose such injury/condition at the consultations on 13, 18 and 22 February 2013, and that she would decline medication (or at the very least analgesics). In my view, the above suggested P’s evidence (including her claim of neck injury and severe pain from the Accident) was unreliable, which view was bolstered by the absence of any objective neurological, motor and/or sensory deficit.

197.According to Dr Yip, at the consultation with PMH’s AED on 1 March 2013, P was “noted to be very anxious” (see paragraph 194 above). It appeared that P was referred for psychiatric consultation because according to the records of PMH’s WKPC summarised in the Psy Jt Report, P’s triage assessment on 1 March 2013 was as follows:

“Anxiety-prone. ↑ multiple body pain × shoulder, neck, head, leg, low back. Claimed [illegible] her sleep & neck. Appetite ↓. [illegible] stable. Hand tremor & SOB [shortness of breath]” (my emphasis)

Dr Yu in the Psy Jt Report noted the score for “thought(s) of suicidal attempt(s)…” at such triage assessment was 0, which meant there was “no such act or threat”. This did not sit well with P’s account to the Psy Experts at the Psy Exam that “[the] first time [P] had thought of jumping from height was the month after the Accident when her mother was ill and she thought of take care of her mother” (see paragraph 250 below). which account indicated that at that time P was also under stressor unrelated to the Accident.

198.Importantly, this psychiatric triage assessment was the first medical record of shoulder, head and leg pain and also hand tremor. In respect of alleged leg pain, in fact P had no lower limb symptoms at the consultation at PMH’s AED on 22 February 2013 (see paragraph 189 above), and there was no credible medical basis to explain why leg pain (in contra-distinction to left heel pain) would develop 3 weeks after the Accident and a week after the consultation on 22 February 2013. As for head pain, P had no explanation why she would mention alleged head pain to the medical personnel conducting the triage assessment, but “隱‎瞞” her alleged head pain from the doctor at PMH’s AED being her primary treatment institution also on 1 March 2013. In my view, such build up of signs/symptoms had the hallmarks of overstatement and exaggeration.

199.Further, although P on her own case claimed she was immediately aware at the scene of the Accident that she could not write due to right hand tremor, P did not explain why this was first documented on 1 March 2013, and by PMH’s WKPC and not by PMH’s AED. However, I note that Dr Lai in the Psy Jt Report noted decreased appetite, hand tremor and shortness of breath recorded for the triage assessment on 1 March 2013 were psychiatric symptoms rather than physical signs (see paragraph 351 below).[40] As Dr Yu opined, whilst P’s development of mental symptoms was attributable to the Accident, she had other stressors (see, eg, paragraph 197 above), and the persistence of her somatic signs without significant improvement despite treatment was due to frustrations associated with her overstating symptoms. This is evident from the discussions below.

200.8 March 2013  According to Dr Yip’s account in the Ortho 1^st Jt Report, at the consultation on 8 March 2013 with PMH’s AED, P reported concerns with the left heel only, and she “requested sick leave extension for [left heel] to residual pain. She was noted to walk unaided. With full range of motion of the ankle. No medication was necessary”. The medical certificate issued on 8 March 2013 by PMH’s AED gave another 7 days’ sick leave for “old L heel contusion, neck and back pain”.

201.In light of P’s allegations that (a) she had 2 swollen areas on her head immediately upon being hit by the Left Door at the time of the Accident, which she later claimed were only discovered when she was in severe pain a week after the Accident, (b) she could not return to work on 9 February 2013 and could not patrol the staircase of the Building on 13 February 2013 because of dizziness (which she informed Wong), (c) she had such severe pain 10 days after the Accident that “…… 嗰一刻, [P] 就覺得「我真係要治療喇, 冇咗份工都冇辦法喇, 我點都要同醫生講」……” such that she disclosed her back pain/injury to PMH’s AED on 18 February 2013, (d) she told PMH’s WKPC at the triage assessment on 1 March 2013 that she had inter alia head pain, and (e) P’s WStmt made in November 2018 stated “…… 於2013年3初, [P] 返回 [Control Room] 遞交病假紙時, [P] 向上司 [Wong] 表示 [P] 的頭部亦疼痛 ……”, all of which combined to demonstrate her alleged awareness of her alleged head injury and her decision to disclose her injuries/conditions to medical personnel, I find on balance there was no credible reason for P to “隱瞞” about her head injury from the doctor at PMH’s AED at the consultation on 8 March 2013. This again served to undermine P’s claim for head injury as a result of the Accident, which view was in line with the CCTV Recording that showed there was no impact between the Left Door and the back of P’s head.

202.March 2013  According to the P WStmt, P said as follows:

“19. …… 其後, [P] 每次都將病假紙親自交回 [Control Room], 每次都遭受上司羅淑玲的冷言冷語, 羅淑玲於3月份更致電 [P] 要求 [P] 停止放病假及復工, [P] 回應 [P] 的傷勢倘未復原, 身體多處地方仍然疼痛, 若 [P] 勉強復工, 擔心病情惡化不能補救, 羅淑玲於是沒有再要求 [P] 復工。

20. 於2013年3初, [P] 返回 [Control Room] 遞交病假紙時, [P] 向上司 [Wong] 表示 [P] 的頭部亦疼痛, [Wong] 經理帶 [P] 見黃經理, 黃經理沒有正視 [P] 的傷勢, 只叫 [P] 將情況告訴 [LD]。 [P] 於是到 [LD] 呈報頭部的傷勢, 怎料 [LD] 告訴 [P] [D] 於之前向 [LD] 刪除了 [P] 的頸、背及腰的傷勢, 只呈報予 [P] 左腳及其他的傷勢, 但 [LD] 翻查, 報告後說醫生有紀錄 [P] 的頸、背及腰的傷勢。

21.  由於羅淑玲的冷言冷語及要求 [P] 復工, [P] 感到委屈¸於是在2013年3月份有一次交病假紙回 [Control Room] 時, 告訴 [Wong] [P] 一直保護公司未有向醫生說意外發生時大門是損壞, [Wong] 叫 [P] 照直告訴醫生。 [P] 於是在覆診時告訴醫生意外時大廈的金屬門是損壞的, 但醫生沒有理會。[P] 一直在 [PMH’s AED] 接受治療至2014年3月31日, 期後 [P] 間中亦因為痛楚難耐到 [PMH’s AED] 求診。同月 [March 2013], [P] 告知醫生 [P] 自2月15日開始由頭到腳全身疼痛, 要求醫生安排 [P] 接受磁力共振檢查, 但醫生沒有正視 [P] 病情, 說 [P] 有精神病, [P] 覺得醫生不想 [P] 再到 [PMH’s AED] 求診, [P] 於是轉看中醫。”

P in her final submissions complained that when “[D] 喺 [LD] 告 [P] 嗰個時候, …… 3月、4月、5月都威迫 [P] 返工同恐嚇 [P] ……”

203.In my view, for reasons set out in paragraph 201 above, there was no credible reason even on P’s own case for P to “隱瞞” about her head injury/pain from her primary treatment institution (ie PMH’s AED) until 21 March 2013 (see the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED), including keeping quiet during the consultations on 1, 8 and 15 March 2013.

204.According to the Ortho 1^st Jt Report, at the consultation on 19 March 2013 at PMH’s AED, P “first reported headaches and dizziness, unsteady gait etc for one day” (my emphasis). Dr Yip pointed out that “[such] subjective and vague complaints have persisted since without any abnormality detected and without any test omitted”. I find it strange on P’s own case that she did not tell PMH’s AED on 19 March 2013 that her headaches, dizziness and unsteady gait were due to her head injury at the time of the Accident, and deferred such disclosure to 21 March 2013. In any event, P’s complaint that she had headaches, dizziness and unsteady gait for merely 1 day raised query over the veracity of P’s allegations of head pain/discomfort, dizziness and nausea associated with the Accident.

205.Even so, PMH’s AED carefully ordered computed tomography (“CT”) brain which was done on 19 March 2013,[41] but it revealed no intracranial bleeding or fracture. And when P belatedly raised the matter of head injury at the consultation on 21 March 2013, PMH’s AED referred her to PMH’s neurosurgery outpatient department for “post concussion syndrome”. The referral letter dated 21 March 2013 by PMH’s AED stated as follows:

“Previously well.

c/o [complained of] persistent headache and dizziness after head injury on 8/2/13.

Neck XR [x-ray] nad [no appreciable disease]

CT brain showed obliteration of right fossa of Rosemulerr → ? significance

Imp [impression]: post concussion syndrome

Please kindly see and advise.”

It was significant to note that after the consultations at PMH’s AED on 8, 13, 18 and 22 February and 1, 8 and 15 March 2013 and notwithstanding P’s complaint of neck injury to PMH’s AED on 1 March 2022, the doctor at the consultation on 21 March 2013 at PMH’s AED was of the view that P’s neck had no appreciable disease. Although PMH’s AED referred P to PMH’s DoN with the impression of “post concussion syndrome”, such impression rested on P’s subjective account of head injury as a result of the Accident given to PMH’s AED on 21 March 2013. As explained in paragraphs 209-212 below, it was not for the treatment doctors (who adopted non-judgmental doctor-patient relationship) to question the veracity of P’s subjective complaints (in contra-distinction to medico-legal experts who were tasked to conduct critical forensic analysis), so the vitality of the impression of “post concussion syndrome” necessarily turned on the veracity of P’s complaints. This was echoed by Dr Yip who in the Ortho 1^st Jt Report said that the treatment doctors “…… were compelled to give [P] the benefit of doubt”, and thus their diagnoses (eg concussion) were dependent upon the assumption that there were such actual injuries (eg head injury) (see paragraph 342 below). But as I have concluded in Part III above, there was no collision between the Left Door and P’s head.

206.P’s express report of only left heel injury in the acute phase with subsequent belated and gradated reports of head, neck, back and other subjective symptoms gave rise to concern that P’s build up of signs and symptoms (especially in light of my finding that at the time of the Accident the Left Door only clipped P’s left heel and did not hit other parts of her body) was either afterthought for request for sick leave extension (eg P requested sick leave at the consultation with PMH’s AED on 8 March 2013 – see paragraph 200 above) or overstatement of symptoms that led to frustrations over their perpetuation without significant improvement despite treatment (see paragraph 355 below). In my view, there was force in Mr Wong’s submissions that at the beginning P did not “隱瞞” her alleged injuries from the ambulance crew and PMH’s AED, and appropriate treatment was given for her minor injuries (eg dressing for the bleeding wound at her left heel), but as time went by P overstated her signs/symptoms for extension of sick leave and for referral to other medical disciplines, especially when (a) D submitted Form 2 to the Labour Department in late February 2013 (which raised the matter of EC) (see paragraph 192 above), (b) P’s left heel laceration and soft tissue injury were on the mend by March 2013 (see paragraph 194 above), and (c) the sick leave granted by PMH’s AED at each consultation tapered from 7 days in February/March 2013 to 3 days on 28 and 31 March 2013. But by that time, P had secured referral to PMH’s DoN, and she switched to consult Chinese medical practitioners who regularly granted 2-7 days’ sick leave at each consultation.

207.In the P Wstmt, P complained that in March 2013 “…… [P] 告知醫生 [P] 自2月15日開始由頭到腳全身疼痛, 要求醫生安排 [P] 接受磁力共振檢查, 但醫生沒有正視 [P] 病情, 說 [P] 有精神病, [P] 覺得醫生不想 [P] 再到 [PMH’s AED] 求診, [P] 於是轉看中醫 ……” On balance, I do not accept such explanation. As seen in paragraphs 194, 197 and 205 above and paragraph 222 below, triage assessment by WKPC was done on 1 March 2013 when she was noted by PMH’s AED to very anxious, CT brain was done on 19 March 2013 upon P’s complaint of headache, dizziness and unsteady gait, referrals were made in March 2013 for ear, nose and throat (“ENT”) and DoN consultations for abnormal CT result (on 19 March 2013) and for complaint of head injury (on 21 March 2013), and x-ray pelvis and lumbrosacral was done on 19 May 2013. In my view, PMH’s AED had made prompt specialty referrals and ordered appropriate diagnostic examinations pursuant to P’s complaints. The Psy/Ortho Experts had no criticism of the treatment given by PMH’s AED, and indeed Dr Yu opined that the treatment by PMH’s AED was “without any test omitted” (see paragraph 204 above). In any event, there was no medical evidence why P’s request for “磁力共振檢查” was necessary. Indeed, the Shenzhen MRI and the Hong Kong MRI referred to in paragraphs 230, 245 and 296 below and done in September 2013 and January 2016 respectively did not record any trauma-based pathology, and the medical report dated 16 January 2015 by Ha Kwai Chung Polyclinic General Outpatient Clinic (“GOPC”) (Department of Family Medicine and Primary Health Care (KWC)) (“HKC Clinic”) noted P had cervical spine degeneration (see paragraph 272 below). On balance, I disagree with P’s allegations that PMH’s AED “…… 沒有正視 [P] 病情 ……” and/or “…… 不想 [P] 再到 [PMH’s AED] 求診 ……”, and I find that the reduction of sick leave days in the medical certificates granted by PMH’s AED was because P’s physical injuries (ie left heel abrasion/contusion and soft tissue injury to buttock(s) and low back) were on the mend (see paragraph 194 above).

208.Indeed, P admitted that after March 2013 “…… [P] 間中亦 …… 到 [PMH’s AED] 求診 ……”, and PMH’s AED rendered care and treatment at such consultations. According to the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED, P consulted PMH’s AED on various occasions and was discharged with sick leave during the period from 8 February 2013 to 16 January 2014. She was referred to psychiatry, neurosurgery, orthopaedics, otorhinolaryngology specialist outpatient clinic (“SOPC”) for further management. Thereafter, P had another 44 attendances at PMH’s AED between 17 February 2014 and 20 May 2016 with provisional diagnosis of post-concussion syndrome, back pain or neck pain, and she was mostly discharged or discharged with acknowledgment of medical advice after such consultations with continued follow-ups at SOPC. I reject P’s subjective belief that “…… [P] 覺得醫生不想 [P] 再到 [PMH’s AED] 求診 ……”

209.Treatment doctors/therapists vs medico-legal experts  Before I turn to consider the further medical treatment given by various hospitals, clinics, Chinese medical practitioners and/or other medical institutions after March 2013, it is important to set out the different roles of treatment doctors/therapists and medico-legal experts. I have briefly alluded to this distinction in paragraph 205 above. P did not appreciate such difference for she testified in-chief that D’s medical experts Dr Yip and Dr Yu “…… 話 [P] 痛又假、喊又假，話 [P] 甚麼都假, [P] 想問 …… 咁 [P] 七個鐵打、四個中醫, 包括政府啲醫生話 [P] 頭、頸、背、腰痛, 係咪都係乜嘢呢? ……”

210.In my view, treatment doctors/therapists deal with a patient for therapeutic treatment and medico-legal experts deal with a patient for forensic examination and evaluative opinion. Bharwaney J in Hung Sau Fung v Lai Ping Wai succinctly summarised the difference between factual treatment evidence and forensic expert evidence as follows:[42]

“46. A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person. These are all matters of fact. Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact. However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from the court. ……”

211.In Bai Siba Kumar v Nishimatsu Construction Company Limited & anor,[43] I explained that whilst a treatment doctor/therapist normally adopts a non-judgmental attitude within a doctor-patient relationship in respect of the patient’s account of his/her medical history, complaints and symptoms, the same cannot be said for the medico-legal expert who is obliged to carry out impartial evaluation in a forensic litigation context and who is ultimately answerable to the court and hence bound to make objective/dispassionate assessment of the medico-legal issues by testing rival diagnostic hypotheses to ascertain the medical fallout as a result of the index incident and by subjecting the information from and/or about the claimant to critical scrutiny.[44] The object is to see whether the claimant’s assertions can be medically supported or should be refuted, and to consider whether the claimant is dissembling or not. Thus, it is not unusual for therapeutic and forensic decision-making to differ, and for the medical expert to conclude there is no diagnosable illness/ disability or to conclude that the claimant has exaggerated his/her symptoms and complaints.

212.It has been a running theme in P’s evidence and submissions that (a) the treatment medical reports that rested on her account of her injuries, signs/symptoms and disabilities sufficiently established her claim, and (b) the expert opinion of the Ortho/Psy Experts that did not accept her account or at least the fullness of her account was false. In assessing P’s such assertions on the balance of probabilities, I bear in mind the distinction between the non-judgmental therapeutic nature of factual medical evidence and the evaluative forensic nature of expert medical evidence.

213.March – April 2013  According to the P WStmt, P said as follows:

“22. 自2013年3月份至4月中, [P] 間中向湯紹聰中醫師求診。

23. [P] 交中醫師病假紙給上司時, 上司說他們不會收私人醫生的病假紙, [P] 於是於2013年4月份起亦到 [YCH/BH Centre] 接受中醫治療及針灸, 在接受治療過程中, 醫生問 [P] 為何跌致傷勢這麼嚴重及頭部有瘀腫的原因, [P] 告訴醫生被一扇很重及已損壞了的金屬閘門撞擊頭部及身體後方。

24.         就 [D] 公司向 [LD] 刪除 [P] 的頸、背及腰的傷, [P] 在一次交病假紙時質問 [Wong], [Wong] 帶 [P] 見黃經理, 黃經理恐嚇 [P] 呈報的受傷的部位並非工傷導致及是刑事罪行需要坐牢, [P] 回應是他刪除了 [P] 的頸、背及腰的傷, [P] 並沒有說謊, 有罪的是他不是 [P], 黃經理於是表示相信 [P] 的傷勢與工傷有關。”

214.According to the medical report dated 15 January 2015 by 湯紹聰中醫師, P had 9 consultations for treatment of “左腳踝關節受傷” (15 March 2013), “頸椎受傷” (17 March 2013), “腰椎受傷” (18 March 2013), “頭部受傷” (20 March 2013), “肋骨受傷” (22 March 2013), “左腳踝關節受傷” (24 March 2013), “頸椎受傷” (30 March 2013), “左腳踝關節受傷” (2 April 2013) and “頸椎受傷” (13 April 2013), and was granted sick leave from 17 March to 14 April 2013. The medical report noted P “…… 於2013年03月15日初診, 當時主訴腰椎、頸椎、肋骨、頭部, 左腳踝關節疼痛, 活動受限。報稱2013年02 月8月工作時被門猛烈撞擊, 整個人倒地導致身體多處受傷紅腫。診斷: 腰椎、頸椎、肋骨、頭部、左腳踝關節有壓痛, 有壓痛。診斷為腰椎頸椎、肋骨、頭部、左腳踝關節受傷; 以上可能與報稱之意外有關。治療: 主要以手法理筋, 調整肌肉痙攣, 再以熱敷中藥促進血液循還及外敷中冊” (my emphasis).

215.According to the medical reports dated 22 July 2013 and 11 January 2017 by YCH/BH Centre’s 程瀚鋒註冊中醫 and 劉銳煒註冊中醫師 respectively,

(a)	“現病史及臨床表現摘要” was “2013年2月8日被門撞傷及跌仆, 入急症。次日腰足疼痛, 漸全身疼痛。4月3日來本診所求醫。症見: 頭痛、頸肩痛、夜間痛醒、左骨肋痛、腰痛難轉側、心下壓痛, 呼吸時亦痛、踝腫痛連足底, 局部紅腫, [illegible] 記憶力下降, 認諮能力下降, 手腕活動不靈, 對電視光源敏感, 口唇瘀啃, 舌紫紅, 有瘀斑瘀黑” (report dated 22 July 2013) and “頭頂及後枕重痛, 伴頭暈, 勁背痛, 腰臀痛, 伴大腿外側痺痛, 雙肩痛, 記憶力差, 納了, 寐不酣, 大便不暢, 小便調, 舌淡紅, 伴瘀斑瘀點, 苔薄白, 脈弦細 (末次求診日期: 2016年2月5日)” (report dated 11 January 2017);
(b)	diagnosis was “頭部內傷病、損傷疼痛病 [血虛血瘀證]”;
(c)	“既往史及手術史撮要” was “既往體健” (report dated 22 July 2013) and “焦慮症史” (report dated 11 January 2017);
(d)	the treatment and progress were essentially “以補益氣血, 活血化瘀為主, 時兼補益肝腎。主要以中藥和針灸治療” and P’s condition had stabilised (report dated 22 July 2013) and “患者於2013/4/3至2016/2/5期間曾由3位醫師進行診治 (針灸及內服中藥), 治療後症狀有所緩解但仍見反覆” (report dated 11 January 2017).

The medical report dated 11 January 2017 stated that P had 57 consultations between 3 April 2013 and 5 February 2016, and sick leave was granted on each of the 57 consultations for 2-7 days.

216.According to the medical report dated 22 July 2013 by YCH/BP Centre’s 程瀚鋒註冊中醫, P at the consultations claimed whole body pain, head pain (including “枕頭痛, 頭頂痛” and “右側頭痛”), neck/shoulder pain, back pain, “雙脅痛”, waist/lumbar pain, buttock pain/bruise, foot pain and “心下壓痛”, and pain on walking, which pain waxed and waned. I note with interest that:

(a)	“左手前臂兩側痛” was first mentioned at the consultation on 12 April 2013, but by the consultation on 17 April 2013 “左手痛巳止”, but on 22 April 2013 “訴左手勞宮穴疼痛, 左內側痛復發” and on 10 June 2013 “近來左手酸疼”;
(b)	“近數天耳鳴, 頭暈” was first mentioned at the consultation on 15 April 2013;
(c)	“訴無明顯誘因下腰臀部瘀黑。臀部疼痛減輕” was mentioned at the consultation on 20 April 2013;
(d)	“大腿酸痛”, “右大腿瘀腫” and “右下腿瘀腫稍減” were noted for the consultations on 7, 14 and 17 June 2013 respectively;
(e)	“四肢瘀腫, 全身疼痛減輕”, “四肢瘀腫減輕。餘痛同前”, “四肢仍瘀腫”, “四肢瘀腫大部份已消, 諸痛減輕” and “四肢已無瘀腫” were noted at the consultations on 19 June, 21 June, 2 July, 8 July and 12 July 2013 respectively.

217.It was evident from above that P started to claim florid signs and symptoms all over her body.[45] These were largely subjective complaints as reported by P to the Chinese medical practitioners (eg “報稱” in paragraph 214 above, and “訴” in paragraph 216(a) and (c) above), and their diagnoses and treatment rested on the veracity of such reported complaints. Essentially, such subjective complaints were multiple non-specific musculoskeletal complaints and complaints of extensive pain that could not be orthopedically explained (see Dr Yip’s opinion in the Ortho 1^st Jt Report and paragraph 341 below). Further, as subsequently noted by SKCJC GOPC, P presented with generalised ache from head down to toes (see paragraph 234 below). In my view, these signs and complaints reflected (as Dr Yu opined) overstatement of symptoms leading to frustrations/anxieties that perpetuated the mental symptoms which became persistent with no significant improvement despite treatment (see paragraph 355 below).

218.Such overstatement was also reflected by P’s tendency to attribute all her signs and symptoms to the Accident. For example, the tinnitus for the past few days noted at the consultation on 15 April 2013 (see paragraph 216(b) above), ie a few days before P’s consultation at YCH’s DoENT on 19 April 2013, could not have been caused by the Accident (see paragraphs 220-221 below). Even P herself recognised that “腰臀部瘀黑” had no obvious cause, ie “訴無明顯誘因” (see paragraph 216(c) above), and in any event she reported recovery from her alleged limb bruises by July 2013 (see paragraph 216(e) above).

219.April – May 2013 According to the P WStmt, “自2013年4月終至2013年8月初, [P] 多次在鄧永基跌打醫館接受治療”, and “自2013年中起, [P] 亦在 [PMH] 耳鼻喉科接受治療”.

220.According to the medical report dated 23 January 2017 by the department of ear, nose and throat (“DoENT”) of Yan Chai Hospital (“YCH”) and the consultation notes of 19 April 2013 by the SOPC of YCH’s DoENT (“ENT Clinic”), P was first seen at YCH’s ENT Clinic on 19 April 2013 for abnormal CT result, ie CT brain done at PMH for headache showed obliteration of right fossa of RosenMuller. P complained of left non-pulsatile tinnitus that was on-and-off for about a year. No hearing loss was noticed. There was “no insomnia” and no other ENT signs/symptoms. Indeed, P denied any nasal signs/symptoms. On physical examination, P’s general condition (GC) was good, tympanic membrances (TMs) were normal, throat was clear, “left earwaxes – out” and both drums were normal. A small cyst was noticed at mid-posterior wall of nasopharynx. Thereafter, P was on regular SOPC follow-up, and her condition was similar. At P’s follow-up on 11 July 2016, her tinnitus was similar, and physical examination revealed her ear drums were intact with the small nasopharyngeal cyst still present. Further appointment at YCH’s ENT Clinic was made, and medications were prescribed.

221.I am unable to see the relevance of the Accident to P’s ENT signs/symptoms. There was no medical evidence that obliteration of right fossa of RosenMuller seen in P’s CT brain was caused by or consistent with blunt injury of the Left Door hitting the posterior part of P’s body/head (although I have found against such allegation). More importantly, P’s left non-pulsatile tinnitus had been on-and-off for about a year, which significantly pre-dated the Accident. It is also interesting to note P told YCH/BH Centre at the consultation on 15 April 2013 that “近數天耳鳴, 頭暈” (my emphasis) (see paragraph 216(b) above), which was consistent with the on-and-off nature of P’s non-pulsatile tinnitus. I am not persuaded P’s ENT condition had anything to do with the Accident. But P’s keen attempt to include her ENT signs/symptoms as part of her injuries and disabilities as a result of the Accident spoke ill of the reliability of her allegations. This was reflected in P’s final submissions which claimed that “…… [P] 仲有好多傷未判囉, [P] 仲有頸、背、腰、蘿柚、右腳、乳房、內科，冇經期嚟, 仲有住院精神科, 仲有好多傷未判, [LD] 話「妳喺庭上同法官講」……” (my emphasis). I have explained why it was improbable that P’s complaints about “右腳” were associated with the Accident (see paragraph 191 above). As seen below, I also do not accept P’s alleged problems with “乳房、內科，冇經期嚟” were caused by the Accident (see paragraphs 246, 299 and 301-303 below).

222.According to the medical reports dated 27 February 2014 and 16 February 2017 by PMH’s AED, x-ray pelvis and lumbrosacral spine was done on 19 May 2013 with no fracture revealed.

223.According to the P Wstmt, “自2013年5月份起, [P] 在 [PMH]接受治療, [P] 被確診患上腦震盪症後群, 但醫生當時未有給予 [P] 病假”. But I note that during such period P was on continuous sick leave granted by YCH/BH Centre.

224.According to the medical reports dated 24 January 2014, 2 March 2015 and 22 September 2017 by PMH’s DoN, upon referral by PMH’s AED to PMH’s DoN,[46] P was first seen at the clinic of PMH’s DoN on 15 May 2013. According to such medical reports, P claimed to have sustained head injury whilst on duty on 8 February 2013. During clinic assessment, P complained of headache, dizziness, impaired memory and poor attention span, but physical examination showed no focal neurological deficit and CT brain done on 19 March 2013 showed no intracranial pathology. P was treated conservatively and was referred to occupational therapist for cognitive function assessment. When P was last seen at the clinic of PMH’s DoN on 9 September 2016, her on-and-off headache and dizziness was static, but no focal neurological deficit was noted. Medication was prescribed, and the neurosurgical diagnosis was post-concussional syndrome.

225.P placed emphasis on the disagnosis of post-conclussional syndrome by PMH’s DoN (see paragraphs 223-224 above). But such diagnosis was premised on the Accident history given by P, ie she was hit on the back of her head by the Left Door during the Accident, and on P’s subjective complaints, ie headaches, dizziness, impaired memory and poor attention span. I have found that the Left Door did not impact on P’s head (see paragraphs 93, 101 and 106 above), and PMH’s neurosurgeons found no objective evidence of neurological deficit during physical examination and/or intracranial pathology from CT brain from 2013 to 2016 (see above paragraph). Given such findings and proper understanding of the non-judgmental therapeutive approach rather than the forensic evaluative role of treatment medical doctors (see paragraphs 209-212 above), I am not persuaded P had “concussion” of the head and/or that she suffered post-concssional syndrome. Indeed, both Psy Experts did not opine P had post-concussional syndrome. In any event, even from the non-judgmental therapeutic angle, the doctors at PMH’s DoN plainly considered there were no focal neurological deficit, so it was unsurprising that they did not grant sick leave for P’s mild condition.

226.Early June 2013 According to the P WStmt, “於2013年6月初, [P] 在黃光滔跌打醫館接受治療”.

227.July 2013  According to the P WStmt,

“29. 於2013年7月份, [P] 曾因身體多處疼痛再到 [PMH’s AED] 求診, [P] 曾要求醫生安排 [P] 接受磁力共震檢查, 但被拒絕。

30.  同月, [LD] 通知 [P] 說 [D] 公司反對 [P] 再放病假及要求 [P] 復工, [P] 向 [LD] 以書面解答了 [LD] 的提問後, [LD] 認同 [P] 需要續續接受治療及放病假。[P] 亦告訴 [LD] [D] 公司拒絕 [P] 的私人跌打醫生發出的病假紙, [LD] 叫 [P] 繼續交私人跌打醫生發出的病假紙給 [D] 公司, 更說如果 [D] 公司再次拒絕, [P] 可再通知 [LD]。自此, [D] 公司接受私人跌打醫生發出的病假紙。”

228.I refer to paragraph 207 above and say that apart from P’s subjective lay evidence, there was no medical evidence as to the clinical relevance and benefit of “磁力共震檢查” for P’s injuries and disabilities as a result of the Accident.

229.August 2013 According to the P WStmt, “[P] 自2013年8月份起向註冊中醫李志光求診, 至 2014年5月份”. P was granted sick leave over the relevant period.

230.September 2013 According to the P WStmt,

“32.  於2013年9月15日, [P] 到深圳接受磁力共震檢查, 檢查結果是C3/4至C5/6及L2/3椎間盤突出 [“Shenzhen MRI”]。

33.  同月, [P] 亦被安排開始在 [PMH’s] 物理治療部接受治療。”

231.According to the Ortho 1^st Jt Report, P told the Ortho Experts at the Ortho Exam that she did not know the result of the Shenzhen MRI, and she did not ask about the findings, but she knew no surgical treatment was advised.

232.According to “於射治療單” dated 15 September 2013 by 魏娜醫生 of 武警廣東邊防總隊醫院, P’s “腰椎MRI平掃” 的印象如下: “一、1. 頸椎椎體輕度骨增生; C2/3-C5/6椎間盤輕度變性; 2. C3/4-C5/6椎間盤輕度突出; 3. 諸段左側黃韌帶稍肥厚; 4. 提示右側椎動脈供血不足可能性大。二、L2/3椎間盤突出”.[47] According to the referral letter dated 1 November 2013 by PMH’s AED to PMH’s DO&T, the report for the Shenzhen MRI showed “Prolapsed IV [intervertebral] disc over C3/4, C5/6 and L2/3”.

233.P in her final submissions argued that “如果 [D] 冇打到 [P], [P]何來有啲傷勢, 有內傷? 如果 [D] 冇打到 [P]，[P] 何來有啲 [Shenzhen MRI] 嘅報告? [PMH] 嘅磁力共振 [ie Hong Kong MRI referred to in paragraph 245 below] 報告、[P] 自己私人磁力嘅共振報告 [ie Shenzhen MRI], [D] 對方都心照喇, [D] 慢慢砌 [P] 喇, 睇唔到, 有證據, 個世界要講證據喇 ……” But in my view, P’s arguments did not take the matter any further as there was no medical evidence to show the outcome of the Shenzhen MRI was indicative of trauma-caused pathology/changes. Rather, the medical evidence (including the Hong Kong MRI referred to in paragraph 245 below and the radiological examination by the Ortho Experts in paragraph 331 below) suggested P’s cervical and lumbar spine had pre-existing mild degenerative changes without significant bone lesion.

234.According to SKCJC GOPC’s medical report dated 13 November 2014, P was first seen at SKCJC GOPC on 26 September 2013. P told SKCJC GOPC she had injury on duty on 8 February 2013 with contusion of head and back by a rebound door (which allegation I have rejected) with no loss of consciousness, SKCJC GOPC noted P presented with generalised ache from head down to toes since then.

235.According to the Ortho 1^st Jt Report, P told the Ortho Experts at the Ortho Exam that she received physiotherapy at PMH for a long time but she could not remember the details. According to the physiotherapy reports dated 4 February 2014 and 18 January 2017 by the SOPC of PMH’s physiotherapy department (“PD”), it was on 26 July 2013 (ie 1½ months before P had the Shenzhen MRI) that PMH’s AED referred P to the SOPC of PMH’s PD for “neck pain persist after injury”, on 26 September 2013 (ie the same month as the Shenzhen MRI) that SKCJC GOPC referred P to PMH’s PD for “back pain”, and on 3 June 2014 that PMH’s AED referred P to PMH’s PD for “Low backpain (LBP)”. Physiotherapy treatment lasted from 3 September 2013 (even before the Shenzhen MRI) to 6 October 2014 for 37 sessions.[48] It was not because of the Shenzhen MRI that P was referred for physiotherapy treatment.

236.October 2013 According to the P Stmt,

“34. 於2013年10月22日, [P] 到 [PMH’s AED] 接受治療, 由於 [P] 有經濟困難, 希望嘗試工作, 醫生給了 [P] 輕工紙, 建議 [P] 輕工紙發出後的4星期內避免粗重工作。[P] 於是向 [D] 公司要求復工做輕工, 例如在 [Station] 抄寫車牌號碼, 不需要巡邏及走樓梯, 但遭 [D] 公司拒絕。

35. 其後, [P] 一直斷斷續續在 [PMH’s AED] 、[SKCJC GOPC]、[YCH/BH Centre] 及不同的中醫接受治療。”

237.P in her final submissions argued that “…… 因為到5月份嗰時, 我就好心急返工喇, 日日去睇鐵打 …… 由頭到腳十幾度地方收費，5月份開始就--嗰啲醫生錢就係好貴㗎喇, 七千至 …… 一萬二千幾喇。同 [D] 講復工, …… 叫醫生寫輕工紙, [P] 話「蓮姐, …… 可唔可以畀我復工？而家我冇錢睇醫生, 我借唔到錢...」2 matters were of note: (a) during this period D paid P periodical payments in the sum of about $6,000/month, and P appeared to have further receipts of a few thousand dollars a month (which under cross-examination she initially said were from an unknown source but should not be loans from relatives/friends, and she later said were payments by the Insurer for her medical expenses limited to $200/day) (but more on this in paragraphs 386-398 below), and (b) by this stage P had so overstated her signs/ symptoms that combined with her other non-Accident stressors (eg her mother’s illness, deterioration of her marital relation, her husband reduced to part-time work with limited income due to leg injury) caused her to become preoccupied, frustrated and worried about her persistent signs/symptoms, to display excessive concern over physical symptoms that had no medical explanation, and to have sensitive thoughts, feelings and responses that seemingly disrupted her daily function and quality of life. In my view, by this time (more than half a year after the Accident), P’s frustrations/anxieties had deluded her into belief in her mental signs that persisted without significant improvement despite treatment (see Dr Yip’s opinion in paragraph 355 below). Thus, while I accept P spent money on medical consultations, I am not persuaded they could be entirely laid at D’s door.

238.November 2013 According to the P WStmt, “於2013年11月, [PMH’s AED] 轉介 [P] 到 [PMH’s DO&T] 接受治療。[PMH’s DoN] 見狀, 才開始於2013年11月給予 [P] 病假”.

239.P consulted PMH’s AED on 19 and 22 October 2013, and on each occasion was granted sick leave for 4 days for “generalised ache”. P again consulted PMH’s AED on 1 November 2013 and was granted 4 days’ sick leave for “old injury, neck and back pain”. On the same day, PMH’s AED referred P to PMH’s DO&T for priority consultation. According to the referral letter dated 1 November 2013 by PMH’s AED, P claimed she had injury on duty in February 2013 “with head and back contusion by a rebound door at work, complained of generalized pain, especially over neck, back and bilateral shoulder. [Physical examination]: Power full over 4 limbs, neck [active range of movement] full, mild tenderness over lumbar spinous process walk unaided”. In my view, it was clear from this referral letter there was little objective medical indicia for P’s generalised ache/pain, especially as “[power] full over 4 limbs, neck [active range of movement] full”. It was also interesting to note that whilst P complained of generalised pain over neck, back and bilateral shoulders, there was only mild tenderness over lumbar area.

240.P returned to PMH’s AED on 5 and 9 November 2013 and was granted 4 days of sick leave on each occasion for “old injury, neck and back pain”. P attended PMH’s DoN on 13 November and 13 December 2013 and was respectively granted 31 days’ sick leave for “post concussion syndrome” and 28 days’ sick leave for “head injury”. At that stage, PMH’s DOT had not yet carried out cognitive assessment, so PMH’s AED was still dealing with P on the basis of their working diagnosis of “post concussion syndrome” premised on P’s reported head injury. However, I have explained in paragraph 205 above why I am unable to place weight on the same. In any event, PMH’s DO&T had not seen P yet when PMH’s DoN issued the aforesaid medical certificates, and I am unable to see the correlation between P’s referral to PMH’s DO&T and sick leave granted by PMH’s DoN based on different medical discipline.

241.P further attended PMH’s AED on 9, 14 and 15 January 2014 and was respectively granted 4 days, 1 day and 2 days of sick leave for “old injury, neck and back pain” and “neck and back pain”.

242.December 2013 According to the P WStmt, “於2013年12月份, [D] 的 [Insurer] 向 [LD] 否認 [P] 的工傷導受頭部受傷, [LD] 於是通知 [P] 及建議 [P] 申請法律援助從司法程序處理 [P] 的工傷索償”.

243.Under cross-examination, P complained “…… 第二次 [Insurer] 去 [LD] 告 [P], 話 [P] 頭唔係工傷 ……”, “…… 實際係 [D] 刪除 [P] 頸、背、腰工傷紀錄 ……”, but “…… [PMH] 醫生見到啲傷勢 …… 14年6月份 …… 咁就 [PMH] 就還 [P] 清白喇 ……”, “…… 因為當時 [PMH] …… 見到 [P] 啲傷勢呀, 又照咗磁力共振, [P] 判完傷 ……” (see paragraph 245 below), “…… 如果唔係 [LD] 話幫 [P] 打上法庭 …… 跟住 [P] 同 [LD] 話 [P] 已經 …… 申請咗喇 ……” P also said “…… [P] 啲傷勢喺邊度攞嚟嘅, 磁力共振、七個鐵打中醫, 七個鐵打、四個中醫, 包括 [PMH] 都係 ……”, “…… [P] 隱瞞咗 …… [D] 次次迫人, 迫到 [P] 精神發癲、 [P] 精神崩潰, …… 一次、二次咁樣 …… 毀謗, 冤屈 [P] ……”

244.P in her closing submissions contended that “…… [D] 慢慢、慢慢為達目的, 呢啲係毀滅證據 …… 誹謗 [P]、冤枉 [P]、誣告 [P]。[P] 工傷以來飽受冤屈和痛苦, 唔單只得唔到 [D] 一個人嘅問候安慰，唔單只得唔到，仲要係加倍、加倍、加倍嘅陷害，陷害 [P]。嗰個世界有證據喇， [D] 陷害 [P] 冇用喇 ……”, “…… 嗰啲醫生報告傷勢囉，[P] 七個鐵打、四個中醫嗰啲傷勢囉，仲有 [PMH’s] [Hong Kong MRI – see paragraph below]，同埋 [P’s] [Shenzhen MRI] ……”, “…… 做咩嘢要刪除 [P] 頸、背、腰工傷紀錄, 呢啲就鐵一般嘅證據 …… [D] 去 [LD] 告 [P], [LD] 嗰啲亦都係證據, [LD] 話 [P] 啲傷殘全部都屬實嘅 ……”

245.In fact, P had MRI cervical and lumbosacral spine done at PMH (“Hong Kong MRI”) in January 2016 and not in June 2014. According to the Ortho 1^st Jt Report, the report dated 18 January 2016 of the Hong Kong MRI revealed as follows:

“(a) Normal alignments with preserved cervical and lumbar lordosis. There is loss of normal T2 bright signals in L2-L5 discs compatible with disc desiccation. Posterior disc bulges observed in L2/3, L3/4, L4/5 with no significant spinal canal stenosis or cauda equina impingement. No significant narrowing of neural foramen. No impingement upon the exiting nerve root seen.

Impression: Mild PID [prolapsed intervertebral disc] in L2-5 discs without spinal canal stenosis or cauda equina impingement.”

Further, the Form 7 and Form 9 were issued by the Medical Assessment Board (“MAB”) on 3 July 2015 and 1 February 2016 respectively, so P only completed MAB assessment procedures in 2016 and not in 2014 (see Part IV(c) and in particular paragraph 317 below).

246.I am unable to see how the Hong Kong MRI and Forms 7 and 9 would demonstrate, as P alleged, that D in not accepting P’s multiple injuries/conditions were trauma caused “…… 實際係 [D] 刪除 [P] 頸、背、腰工傷紀錄 ……” First, in both Forms 7 and 9, it was remarked that the MAB only assessed the quantum of damages of the injury and does not arbitrate any dispute about liability for compensation, and that the final adjudication rested with the court. Secondly, in light of my findings in respect of the Accident in Part III above which showed P only suffered laceration of her left heel and soft tissue injury of her buttock(s) / low back, I am unable to accept P’s allegation that D “…… 係毀滅證據 …… 誹謗 [P]、冤枉 [P]、誣告 [P] ……” by “…… 刪除 [P] 頸、背、腰工傷紀錄 ……” and by “…… 話 [P] 頭唔係工傷 ……” Such assertions at best reflected P’s frustrations / anxieties due to overstatement of her case that perpetuated her mental symptoms without significant improvement despite treatment (see Dr Yu’s opinion in paragraph 355 below and P’s account to PMH’s WKPC at the consultation in paragraph 248 below). Thirdly, P in her final submissions claimed “…… [P] 仲有好多傷未判囉, [P] 仲有頸、背、腰、蘿柚、右腳、乳房、內科，冇經期嚟, 仲有住院精神科, 仲有好多傷未判, 勞工處話「妳喺庭上同法官講」……” Such assertions amply showed P was quite prepared to lay blame on D for any and all of her conditions, including those which were obviously unrelated to the Accident, eg her breast condition, interruption of her menstrual cycle, and her on-and-off tinnitus (see paragraph 221 above).

247.February 2014 According to the P WStmt, “自2014年2月4日, [P] 於 [WKPC] 接受精神科治療, [P] 被診患上焦慮症及抑鬱症”.

248.According to the medical report dated 19 November 2014 by PMH’s WKPC, P complained of multiple persistent tender spots at head, neck, back, legs and ankle, and reported unsettled sleep, worries over career prospect, marital relationship, subjective low mood, fluctuating appetite, loss of interest, agitation, hypersensitivity to noise/voice, and shortness of breath with suicidal ideation, but she became more settled after counselling:

“[P] is a known patient of Reactive Anxiety-Depression.

……

[P] was well until 8-2-2013 when she was knocked on by a heavy iron door of the building (at where she was working as security guard), resulting in her falling to the ground. She was sent to [PMH’s AED] and X-ray cervical spine, lumbar spine & ankle and skull X-ray done revealed no bony fracture. However, she complained of multiple persistent tender spots at head, neck, back, legs and ankles afterwards. The injury was filed to [LD] as injury on duty (IOD). She attended [PMH’S DoN] and [DOT] then. She had been on sick leave since then (she tried to resume duty on 12-2-2013 to 13-2-2013 but failed because of persistent pain at head, neck, back, legs and ankles).

[P] worried much about the progress of recovery and her career prospect after her IOD [injury on duty] after 8-2-2013. Her marital relation also worsened. She was thus noted to have subjective low mood with weeping episodes at times. Appetite was fluctuating with some subjective weight loss. Sleep was unsatisfactory, which was part and parcel secondary to her multiple bodily pain. There was loss of interest / volition / energy. Psychomotor retardation was noted while social withdrawal became more obvious gradually. Negative cognitions were harboured and easy agitation was noted at times. She also became more anxiety-prone than usual, presenting with intrusive fearfulness, feeling of apprehension, hypersensitivity to noise / voice, palpitations, tremors, shortness of breath, chest tightness, muscle tension, general malaise, headache and dizziness. Suicidal idea had been harboured (she had thought of jumping from height because of persistent bodily pain) without actualisation. She was never violent or psychotic.

[P’s] injury was filed to [LD] as IOD [injury on duty]. She had tried to resume duty from 12-2-2013 to 13-2-2013 but failed because of persistent multiple bodily pain (over head, neck, back, legs, ankles). Her mood disturbance lingered on and she finally presented herself to [PMH’s AED] in March 2013. She was thus referred to [WKPC] for further management.

[P] starting attending [WKPC] since 4-2-2014. With treatment and counselling, she became more settled gradually though she would still feel low in mood at times. Understandable worries about her IOD [injury on duty] and career prospect were still reported.

……”

249.According to the records of PMH’s WKPC summarised by the Psy Experts in the Psy Jt Report, the relevant notes for the initial consultation at PMH’s WKPC on 4 February 2014 were as follows:

“4/2/14: “worried much …subjective low mood with weeping episodes …appetite was fluctuating with some subjective weight loss …sleep was unsatisfactory (initial insomnia +/−, fragmented sleep +, early morning wakening +/−) …loss of interest / volition / energy …psychomotor retardation …social withdrawal …negative cognitions (worthlessness +/−, helplessness +, hopelessness −, loneliness +/−) …easy agitation …more anxiety-prone with: intrusive fearfulness, feeling of apprehension, hypersensitivity to noise / voice, palpitations, tremors, SOB [shortness of breath], chest tightness, muscle tension, general malaise, headache and dizziness. Suicidal idea …thought of JFH [jump from height] because of persistent bodily pain … Marital relation worsened

MSE [Mental State Examination]:

Mood a bit tense and depressed …No suicidal …thoughts.

Imp [Impression]: Reactive Anxiety-Depression

Prescription: Cipram 20 mg daily, Valium 2 mg bd prn and 5 mg nocte [nightly] prn, Lyrica 50 mg tds”.

250.The Psy Jt Report noted that P told the Psy Experts at the Psy Exam that she received treatment at PMH’s WKPC since early 2014, and she went on to say as follows:

“25. ……

(b) Her initial symptoms had included being irritable, hearing voices asking her to die, decreased appetite, decreased body weight by about twenty pounds, impaired sleep, depressed mood, suicidal idea, and thought of jumping from height.

(c) The voice was either a male or female voice, and voices started about three months after the Accident.

(d) [D] threatened her that it would be a criminal offence if the injury was not a work-related injury, and forced her to return to work. She was troubled by [D] only reporting to the [LD] about the left ankle and buttock injury but not the injury to the neck, back and low back.

(e) She was given $6000 of salary during sick leave. Yet she spent more than ten thousand dollars a month to cover her medical expenses. She borrowed money from her friends and had accumulated a debt of over two hundred thousand dollars.

(f) The first time she had thought of jumping from height was the month after the Accident when her mother was ill and she thought of taking care of her mother. The second time of suicidal thought was about a year after the Accident when her symptoms did not improve despite treatment.

(g) Then she asked the doctor to write a letter for light duties, and she had frequent crying and irritable mood (scolding her friends who visited her). She disliked meeting people and did not have interest as before the Accident.

26. The psychiatrist comforted her and prescribed medicine to her. She saw a private psychiatrist before seeing the public psychiatrist. Currently she had follow-up about once in a few months, and she was given four to five kinds of medication.”

251.I note at the outset that even on non-judgmental therapeutic basis the impression by the treatment psychiatrists of PMH’s WKPC was not post-concussion syndrome but reactive-anxiety depression on the basis that P became frustrated and anxiety-prone pursuant to preoccupation with multiple complaints unsupported by physical disorders (since the physical injuries as I have found had resolved or largely resolved) and/or intense response to her somatic symptoms (see paragraphs 253 and 266 below) despite many medical consultations and grant of extended sick leave. In my view, there was force in Dr Yu’s opinion that whilst the development of mental symptoms subsequent to the Accident was the precipitating cause of P’s psychiatric sequelae, the perpetuation and persistence of P’s mental signs without significant improvement despite treatment was attributable to frustrations associated with P overstating her symptoms (see paragraph 355 below). This was reflected by P regarding mild symptoms as signs of serious disease, visiting multiple healthcare providers for multiple tests/procedures and for sick leave, spending a lot of time, energy and money dealing with her health concerns, feeling that some healthcare providers, D and/or its Insurer did not take her symptoms seriously enough, claiming her anxiety disrupted daily functioning, and becoming upset with others (eg her husband) when her claimed need for help and emotional support was not met. Indeed, even P’s own Psy Expert Dr Lai accepted that there were inconsistencies in P’s presentation to the Psy Experts, and that P tried to impress upon the Psy Experts the seriousness of her condition when in fact she only had very mild psychiatric symptoms (see paragraphs 352-353 below). Whilst D’s Psy Expert Dr Yu agreed with Dr Lai that it was likely that P suffered from very mild psychiatric symptoms, he opined that P’s reported symptoms were exaggerated (see paragraph 354 below). In the circumstances and on balance, I am not persuaded I could place much reliance on P’s multiple complaints and allegations of general malaise, aches, pains and frustrations. It was also further evident from the above that P’s mental symptoms were complicated by other stressors, eg her mother’s illness which in my view was unrelated to the Accident (see paragraphs 254 and 256 below), and her financial burden, job worry and deteriorated marital relation due to disproportionate worry about physical signs and excessive negative thoughts, feeling and behaviour as a result of overstating symptoms (see paragraph 355 below) (see also Dr Lai’s opinion in paragraph 352(a) below).

252.March 2014 According to the Psy Jt Report, the records of PMH’s WKPC showed that P attended WKPC for consultation on 11 March 2013 as follows:

“improved after Rx [treatment]. Appetite / sleep well … No significant mood fluctuation / major anxiety attacks

MSE [mental state examination]: Mood mildly depressed. Not overtly anxious … No suicidal … thoughts.

Prescription: same”.

253.April 2014 According to the psychological report dated 19 January 2015 by CMC’s department of clinical psychology (“DCP”), P was referred for clinical psychology service on 4 April 2014 over possible post-traumatic stress reaction and multiple somatic complaints after she was injured at work on 8 February 2013.

254.I note also that P’s mother passed away in April 2014 or earlier (see paragraph 165 above). According to the Psy Jt Report, P told the Psy Experts at the Psy Exam that:

34.  (a) [P] says that previously her goal was to help her mother to come to live in Hong Kong even if it was for a few months.  Before the Accident she bought expensive ($10,000-odd a tael) Chong-cao [虫草] (caterpillar fungus) to her mother who consumed a tael in several months.  She also gave her mother 500 Renminbi a month. After the Accident she could only afford to buy cheap ($4,000-odd a tael) Chong-cao to her mother.  She believes that it was because of the change in the Chong-cao that had led to her mother developing choking at the time of the death.

(b)  According to the handwritten information of [P] dated 25 May 2018 (in Chinese), “the greatest regret in life was causing the death of my mother”.

In re-examination, P also agitatedly claimed that:

“…… 仲有, [P] 工傷以來又 …… 間接害死媽媽, 最不人道嘅時候, …… [P] 同 [Wong] 講「媽媽就嚟唔得喇, 返天家喇」, [P] 返去見媽媽最後一面, [D’s Wong] 揸唔到主意, 要問老總關生, …… [Wong] 打電話畀 [P], [Wong] 話「喺出面唔當妳工傷 ……」, 嗰時又驚, 跟住 [P] 朋友話「妳同勞工處講喇」, [P] 家姐話「妳辭咗份工返去喇」, [P] 朋友話「妳唔好辭工，一定唔可以辭工」, 跟住 [P] 同 [LD] 講 ……「媽媽走喇, 我要返鄉下見媽媽一面」……”

255.Taking the last point first, in the Form 2 submitted by P, D did not dispute the Accident was work-related. Indeed, D all along paid periodical payments of about $6,000/month to P, and as P acknowledged, D’s Insurer also reimbursed her medical expenses under the Employees’ Compensation Ordinance Cap 282 (“ECO”) at $200/day. I am not persuaded Wong would have told P that D would not recognise the Accident as an injury on duty (even though D did disagree that the Accident caused P’s multiple injuries/conditions as she alleged, which stance agreed with my findings), or would have taken any obstructive view about P’s intention to visit her mother.

256.As regards the death of P’s mother, Dr Lai opined that the Psy Exam at which P gave account of her circumstances (including her mother’s death) was stressful for her (see paragraph 347(b) below), and might lead to “temporary” worsening of her emotional response, but overall she had very mild psychiatric symptoms (see paragraph 352(i) below), but Dr Yu considered that P’s attribution of her mother’s death to the Accident far-fetched and that her description was “contrived” and exaggerated (see paragraph 354(b) below). In my view, this again reflected P’s exaggeration of symptoms and her tendency to lay all blame (whether related to the Accident or not) on D. I am unable to see any reasonable basis for blaming the illness and death of P’s mother on D.

257.May 2014 According to the P WStmt, “自2014年5月份, [P] 在簡文森中醫診療所接受治療, 至2014年10月份。於2014年5月份, 由於簡文森中醫認為 [P] 喪失工作能力, [P] 告知 [PMH’s AED] 及要求提早接受骨科治療, 醫生於是安排 [P] 提早於2014年10月8日在下蔡涌家庭醫學專科診所接受骨科治療”.

258.June 2014 According to the Psy Jt Report, P attended PMH’s WKPC on 3 June 2014. The Psy Experts summarised the WKPC’s records for such attendance as follows:

“MSE [mental state examination] : Mood mildly depressed. Not overtly anxious … No suicidal … thoughts. c/o [complained of] body pain

Prescription: Cipram 20 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, ↑ Lyrica 75 mg tds”

259.P attended CMC’s AED on 23 June 2014. The medical notes of CMC’s AED noted there was “old injury last year” with “depressive disorder”, and P complained of increased generalised body pain that day. The doctor noted P had multiple attendances at PMH’s AED, had “old back injury / [illegible]”, had already seen PMH’s DoN, and had been referred for clinical psychology consultation. The results of the Shenzhen MRI were also noted. P was discharged without further follow-up and without drug prescription. I note with interest that for some time PMH’s and CMC’s AED had referred to P’s physical injuries from the Accident as “old injury”, thus those physical injuries (ie left heel contusion/ abrasion and soft tissue injury to the buttock(s) and/or low back) appeared to have been resolved.

260.According to the P WStmt, “自2014年6月24日 [should be 23 June 2014] 起, [P] 在 [CMC] 接受心理科治療”. According to the psychological report dated 19 January 2015 by CMC’s DCP, P was seen 6 times as outpatient at CMC between 23 June and 24 December 2014. During the 1^st interview, P reported of low and irritable mood, psychomotor retardation, loss of interest, social withdrawal, sleep disturbance, decreased appetite, forgetfulness, fleeting suicidal ideations and worry preoccupation. She also reported to be anxious when having many people around, experiencing anxiety out of the blue, and was afraid of being hit or stabbed by others. She complained about chronic pain conditions. She felt stressful about worsened marital relationship and financial strain after the Accident. The impression was that P suffered major depressive disorder, but her anxiety symptoms were not indicative for full-blown anxiety disorder. Cognitive-behaviorial therapy for major depressive disorder including behavioural activation was conducted for management of depressive symptoms. She also received training on pain-coping and stress management skills to facilitate her adjustment. With time, P showed higher motivation to engage in pleasurable and social activities which resulted in mildly improved mood states, but she had difficulties retrieving skills and knowledge that were discussed in the sessions which hindered progress to some extent.

261.I bear in mind that the treatment diagnosis of major depressive disorder was based on the clinical psychologist’s non-judgmental approach to P’s account of her multiple complaints and ailments, which I find to be overstatement of her symptoms. Indeed, neither Dr Lai nor Dr Yu considered P to suffer from major depressive disorder, and both opined that P only had very mild psychiatric symptoms. I reiterate the different approaches adopted by non-judgmental treatment doctors/therapists and forensic medico-legal experts with the former taking on board the patient’s complaints and with the latter subjecting such complaints to critical examination. I will deal with P’s psychiatric complaints and the treatment given therefor in light of the expert psychiatric opinion below. However, it is useful to note here that P’s alleged signs of general pain, fatigue, weakness, and malaise were not premised on identifiable physical cause but reflective of her somatic complaints (see paragraphs 251 above).

262.July - August 2014  According to the occupational therapy report dated 16 January 2015 by PMH’s DOT, P claimed to have suffered head injury during work on 8 February 2013. The working diagnosis of PMH’s DoN was post-concussion syndrome, and P was referred to PMH’s DOT for WCE on 25 July 2014. I have explained in paragraphs 205 and 225 above that given my finding on the circumstances of the Accident, there was no “concussion” of P’s head.

263.According to CMC’s clinical psychology progress notes for the consultation on 29 July 2014, P was weepy when revealing her pain, but she had social smiles and her speech was relevant and coherent. She found the psychotropic medications helpful, and slept better accordingly. She continued to see Chinese medical practitioner for pain management, and found herself happier with visit by friends. But she was ambivalent about continuing treatment in Hong Kong or in Mainland China with friends asking her to fight for compensation in Hong Kong.

264.According to the Psy Jt Report, P attended PMH’s WKPC on 26 August 2014. The Psy Experts summarised WKPC’s notes for such attendance as follows:

“Largely settled currently. Appetite was satisfactory. Sleep was fair … No significant mood fluctuation / major anxiety attacks. …Attending Chinese Herbalist as well

MSE [mental state examination]: Mood not overtly anxious / depressed … No suicidal … thoughts.

Prescription: ↑ Cipram 30 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, Lyrica 75 mg tds”

265.According to CMC’s clinical psychology progress notes for the consultation on 28 August 2014, P was in “stable and calm mood, momentary sobbing for pain and financial strain”, but her speech was relevant and coherent. The clinical impression was that P was “motivated to do [rehabilitation] exercises wishing for faster recovery and earlier resumption of work”. P reported headaches and dizziness that improved mildly with Chinese medicine, but suffered from financial strain for such medical treatment. P still received periodical payments, but had to borrow money from her sisters. She felt less painful with psychotropic medications, and felt more relaxed after breathing exercises. P tried to increase activity level, but had to stop after feeling severe pain. She slept well (but her sleep was shallow), but had suboptimal appetite with weight loss since the Accident. She complained of unclear mind and hair loss.

266.According to the medical reports dated 16 January 2015 and 25 January 2017 by HKC Clinic, P first attended HKC Clinic on 26 July 2014 for work injury on 8 February 2013. It was reported that she had neck and back contusion by a rebound door at work with no loss of consciousness but there was generalised ache from head down to toes since then. Previous investigations included CT brain in public and MRI spine in private. She had been followed up by neurosurgeons with diagnosis of post-concussion syndrome. P attended HKC Clinic for analgesics for pain relief and for sick leave certificates. She was last seen on 14 January 2016. Sick leave was granted on various days during the period from 26 July 2014 to 4 December 2015. According to the medical report dated 16 January 2015 by HKC Clinic, P still had numerous somatic complaints like headache, dizziness, neck pain, back pain and shoulder pain which were all static in progress. HKC Clinic had once ordered MRI spine for P “as she requested”, but the appointment was in 2016.

267.I should point out here that P was under covert surveillance in June and July 2014, and the recordings from such surveillance as discussed in Part IV(h) below (“Surveillance Recordings”) showed P’s daily functioning and quality of life were more positive than P’s report to various healthcare providers and the Ortho/Psy Experts and in her statement/oral evidence. Suffice to state here that P’s alleged significant preoccupation with her symptoms, which symptoms were said to strongly interfere with her daily functioning, was not evident in the Surveillance Recordings.

268.September 2014 According to CMC’s clinical pychology progress notes for the consultation on 29 September 2014, P’s mood was on the low side and she sobbed, but her speech was relevant and coherent. P had less pain generally (once 2-4 days) and tried climbing downstairs each day. Her mood was better, she attended church regularly, she was visited by friend twice, she went out to yum cha once, and she felt happier after social gathering. She also went swimming 1-2 times/day. She had some weight gain, better appetite after seeing Chinese medical practitioner, better sleep with psychotropic medications (but sometimes unrestorative sleep and very painful on changing sleeping posture), and less nightmares (but still 2-3 times/week with horrible content). She had dizziness when bending her head down when washing dishes, and had fear in approaching door that would remind her of the Accident. She felt some medical professionals did not understand her pain.

269.October – December 2014  According to SKCJC GOPC’s medical report dated 13 November 2014, P followed-up with PMH’s DoN for post-concussion syndrome and with the department of psychiatry (“DoPsy”) of Kwai Chung Hospital (“KCH”). It was noted P had completed physiotherapy in October 2014, and was then on occupational therapy (see paragraph 271 below). When last seen by PMH’s DoN on 20 October 2014, P presented with generalised ache from head down to toes and on-and-off headaches and dizziness, and required pain relief medication. Physical examination showed P could walk unaided, but she became agitated with upper limb tremor whenever she talked about her problems. There was muscle wasting over right buttock, but her back was non-tender. Straight leg raising was 70º on both sides. Limb power was full, and light touch sensation was intact. Analgesics were prescribed, but no regular follow-up was arranged.

270.According to the medical report dated 16 January 2015 by HKC Clinic, “…… [light] duty was granted on 8 October 2014 for 1 week by Family Medicine Specialist (Orthopaedics)”.

271.According to the P WStmt, “自2014年11月24日, [P] 在 [PMH] 職業治療部接受評估, 評估結果是 [P] 的工作能力未能乎合意外前從事保安員的要求”. According to the occupational therapy report dated 16 January 2015 by PMH’s DOT, P was referred by PMH’s DoN to PMH’s DOT on 25 July 2014 for WCE. Occupational therapy was provided on 24 November 2014, and WCE was done on the same day. P reported pain over head, neck, upper limbs, pelvis and lower limbs, and also dizziness. Her lifting and pushing abilities were decreased. Cognitive assessment showed she had decreased ability in memory and attention. Her overall work ability was assessed to be not-matched with previous job demand as a security guard. Job plan was discussed, and retraining and vocational resettlement service were introduced. P was discharged from PMH’s DOT services on the same day.

272.According to the medical report dated 16 January 2015 by HKC Clinic, “…… [P] also had dyspepsia symptoms on our last consultation [on 20 December 2014]. [HKC Clinic] diagnosed [P] as cervical spine degeneration with multiple sore and ache and dyspepsia. [HKC Clinic] offered analgesics and medicine for dizziness and dyspepsia ……”

273.In my view, cervical spine degeneration (see Shenzhen MRI and Hong Kong MRI referred to in paragraphs 230 and 245 above) was not caused by the Accident. Further, there was no medical evidence to demonstrate that dyspepsia was trauma-caused by the Accident. In my view, there was no or no sufficient medical basis to ground P’s display of severe somatic signs/symptoms to the medical personnel on physical disorders. But even if some physical disorder was present, P’s response was excessive and out of proportion, eg attributing not unusual sensation/ discomfort such as a grumbling stomach to the Accident. Such complaints were belied not only by the opinion of the Ortho/Psy Experts but also by the Surveillance Recordings discussed below. Indeed, as Dr Yu explained (and on balance I accept), the persistence of P’s mental symptoms without significant improvement despite treatment was attributable to frustrations associated with overstating symptoms (see paragraph 355 below).

274.According to the P WStmt, “自2014年10月份起, 透過 [PMH] 醫務社工的轉介, [P] 接受香港撒瑪利亞的防止自殺會幫助”. However, the records of P’s consultations at PMH’s WKPC on 4 February, 11 March, 3 June and 26 August 2014 all indicated P had no suicidal thoughts (see paragraphs 249, 252, 258 and 264 above) despite initial reporting of suicidal idea “because of persistent bodily pain” (see paragraph 249 above). But as Dr Yu opined (and on balance I accept), such assertion was not credible as it was unlikely for P to have suffered “persistent bodily pain” (see paragraph 354(c) below), which I find to be overstatement of symptoms. Further, according to the Psy Jt Report, P attended PMH’s WKPC on 24 October 2014, and again she had no suicidal thoughts. The Psy Experts summarised WKPC’s notes for such attendance as follows:

“(original apt. 16-12-14, before due as she reported feeling low in mood at times). Appetite was satisfactory. Sleep was fair …No significant mood fluctuation but would feel low at times. No major anxiety attacks.

MSE [mental state examination]: Mood not overtly anxious / depressed … No suicidal … thoughts.

Prescription: ↑ Cipram 40 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, Lyrica 75 mg tds”

According to the medical report dated 19 November 2014 by PMH’s WKPC, “…… when …… seen on 24-10-14, [P] was not overtly anxious or depressed. No active psychotic symptoms were elicited. Speech was relevant and coherent. There were no expressed suicidal or violent thoughts ……”

275.According to CMC’s clinical psychology progress notes for the consultation on 11 November 2014, P was in stable and calm mood although she sobbed at times, and her speech was relevant and coherent. P claimed she was in low mood most of the day, had some nightmares, met friend once and swam once (and felt more painful afterwards). Her daily activities included “walking downstairs for levels, once/day, felt difficulty walking when walking”. She was able to sleep for 2-3 hours with medications, and eat “2/3 bowl of rice, 3 meals per day”.

276.According to CMC’s clinical psychology progress notes for the consultation on 24 December 2014, P had social smiles and was in “stable and calm mood in general, held her tears at times”. P claimed “conducted PMR [progressive muscle relaxation] 1-2 times/day, felt more relaxed, mildly more stable mood states as perceived, felt not being understood by husband at times”.

277.2015  According to the physiotherapy reports dated 4 February 2014 and 18 January 2017 by the SOPC of PMH’s PD, P was again referred for physiotherapy by PMH’s AED for “Headache and back pain” on 20 November 2014, and by PMH’s DoN for “post concussion syndrome” on 6 February 2015. Physiotherapy treatment started on 23 January 2015, and the last treatment session was on 2 April 2015. P attended 7 physiotherapy sessions, and treatment given included hot pad (HP) and active mobolisation exercises.

278.According to the Psy Jt Report, P attended PMH’s WKPC on 12 February 2015, and the Psy Experts summarised WKPC’s notes for such attendance as follows:

“Appetite was satisfactory. Sleep was fair … No significant mood fluctuation but would feel low at times. No major anxiety attacks

MSE [mental state examination] : Mood not overtly anxious / depressed … No suicidal … thoughts

Prescription: same”

279.According to the psychological report dated 12 January 2017 by CMC’s DCP, P was seen for 2 more sessions on 17 February and 1 April 2015. She continued to receive training on mood regulation, pain coping and stress management skills. She was found motivated in engaging in regular mobility exercises and showed some progress on increased activity tolerance. She also had wider range of activities including social gathering. However, difficulty in retrieving knowledge and skills remained to be a major factor in hindering her in engaging in appropriate between-session exercises, so she showed slow progress in attaining more stable mood states. Effects of psychotherapy appeared to have reached a plateau when she was last seen. Different treatment options were discussed with P and she agreed to terminate the services, so her case was closed.

280.According to CMC’s clinical psychology progress notes for the consultation on 17 February 2015, P was in stable and calm mood, had social smiles, and her speech was relevant and coherent. The clinical impression was slow progress. P reported she had applied for comprehensive social security assistance (“CSSA”), “went swimming 2-3 times/week”, tried to ignore her husband (who earned about $2,000/month as part-time worker) to minimise chance of quarrel, had spent $100,000 for medical expenses, and had borrowed from friends and was under financial strain.

281.P disclosed various certificates issued by the Social Welfare Department (“SWD”) that showed P (as a CSSA recipient) was granted medical waivers.[49] The Hospital Authority also granted certificates on 22 May 2014 and 26 August 2014 for waiving her medical charges (not exceeding $16,000 per case) valid from 22 May to 21 August 2014 and from 26 August 2014 to 25 February 2015. P also applied for disability allowance.[50]

282.It appeared from the above account that P’s reaction and behaviour about her somatic symptoms arising from her overstatement of complaints had not eased, and that she still maintained she had generalised pain, fatigue, weakness and malaise that persisted without clear cause. The intensity and persistence of her symptoms were quite disproportionate, so unsurprisingly there were no significant improvement despite treatment, which led to even more frustrations with healthcare providers (for not taking her symptoms seriously enough) and her husband (for not understandings her and not meeting her need for emotional support), and even more time and energy in dealing with her health, which in turn perpetuated her financial burden and job worry. But as Dr Yu opined, such perpetuating cause of P’s mental symptoms was attributable to her overstatement of symptoms and not the Accident (see paragraph 355 below).

283.P was assessed by the MAB on 24 March, 27 March, 9 April, 10 April and 19 June 2015 for “multiple injuries resulting in (i) post-concussional syndrome with headache, insomnia, irritability and dizziness; (ii) residual neck pain, low back pain and left heel pain; (iii) psychiatric impairment”. The MAB issued the Form 7 on 3 July 2015 (see paragraph 315 below).

284.According to the consultation notes of YCH’s ENT Clinic for the attendance on 8 June 2015, P claimed to still have tinnitus and insomnia. Her tympanic emmberances were intact. Medication and follow up were prescribed. As explained in paragraph 221 above, I have found that P’s tinnitus was not caused by the Accident.

285.According to the medical report dated 16 February 2017 by PMH’s AED, P was admitted to emergency medicine ward on 25 March, 24 July and 29 October 2015 for suicidal idea, adjustment reaction, and mixed anxiety and depressive disorder. P claimed under re-examination that “…… [Dr Yip and Dr Yu] 話 [P] 痛又假、喊又假、甚麼都假, [P] 啲痛症稍為好啲, 情緒反而好啲又畀佢刺激到, 又搞到 [P] 兩次入住精神科 ……” But P was hospitalised 3 times in 2015 long before the Ortho Exam and Psy Exam on 19 May 2017 and 16 May 2018 respectively, and P was admitted to KCH once in 2019 almost 9 months after the Psy Exam (see paragraph 310 below). In the circumstances, the opinion of Drs Yip and Yu could not have been the triggering reasons for P’s hospitalisations in 2015.

286.According to the discharge summary by PMH, P was admitted on 25 March 2015 for “mixed anxiety and depressive disorder” and discharged on the following day with medications and follow-up appointments. Since this hospitalisation could not have been caused by expert opinion of Drs Lai and Yu, and bearing in mind the medical notes of PMH’s WKPC for 24 October 2014 and 12 February 2015 showed P’s mental condition was fairly stable in the few months before such hospitalisation,[51] and CMC’s clinical psychology progress notes for 11 November and 24 December 2014 showed progress in coping with her mental condition,[52] P’s sudden overnight hospitalisation had not been satisfactorily explained, especially when a few days later (a) she was again in stable and calm mood so much so that CMC’s clinical psychological service decided to close her case (consultation on 1 April 2015 – see paragraphs 288 below), and (b) she had satisfactory appetite, fair sleep, no significant mood fluctuation, no major anxiety attacks and no suicidal thoughts, and her feeling low at times were such that PMH’s WKPC considered her mood was not overtly anxious and either not depressed or only mildly depressed (consultations on 2 and 13 April 2015 – see paragraph 289 below).

287.In my view, given that during the aforesaid period P’s mood was only mildly depressed, she was not overtly anxious and she had no suicidal thoughts, the relevant/likely stressor at the time, as particularly referred to by CMC’s clinical psychologist and WKPC’s psychiatrist in December 2014 and April 2015, was her poor marital relation, ie feeling she was not understood by her husband at times (see paragraph 276 above), sobbing when she mentioned her marital relationship (see paragraph below), and “[marital] relation was unsatisfactory” (see paragraph 289 below). In my view, P felt stressful around that time as she consulted the Samaritans Befrienders in October 2014 and after taking advice she was about to and eventually did propose divorce (see the notes of PMH’s WKPC for the consultation on 2 April 2015 recording that P had made application for divorce and on 18 June 2015 recording that the application had been postponed – see paragraph 289 above). I am not persuauded P’s claimed poor marital relation was attributable to the Accident. Indeed, there was force in Dr Yu’s opinion that P’s marital relationship was not as bad as she wished to impress upon the Psy Experts (see paragraph 354(h) below). After all, despite P’s strong preoccupation with her somatic signs/symtoms, her husband promptly declined to divorce when she raised the subject and even promised to treat her better (see paragraph below). But if there were some concerns over P’s marital relationship, I find on balance it was probably due to underlying marital issues and/or P’s overstatement of symptoms that exaggerated demand for emotional help and support leading to frustrations when she felt her perceived needs were not met.

288.According to CMC’s clinical pychology progress notes for the last consultation on 1 April 2015, P was in stable and calm mood although she sobbed when she mentioned her marital relationship. She claimed to have poor short term memory, but her speech was relevant and coherent. The clinical impression was that P had poor recollection of session materials, and her treatment effect had plateaued. P reported mildly improved states. She proposed divorce following advice by staff of the Samaritan Befrienders and friends, but her husband declined divorce and tried to treat her better, so she was less stressful. [53] P felt less painful at times. She engaged in activity pacing, could tolerate more walking and walking downstairs, and also regularly tried stretching exercises taught by friends. P’s case was closed with her consent.

289.According to the Psy Jt Report, P attended PMH’s WKPC on 2 April, 13 April and 18 June 2015, and the Psy Experts summarised WKPC’s notes for such attendances as follows:

“(original apt. 18-6-15, before due as she was noted to have a bit low in mood recently … Appetite was satisfactory. Sleep was fair … No significant mood fluctuation but would feel low at times. No major anxiety attacks. … Marital relation was unsatisfactory. In application × divorce.

MSE [mental state examination]: Mood not overtly anxious / depressed … No suicidal … thoughts.

Prescription: Cipram 40 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, Lyrica 75 mg tds, add Remeron 15 mg nocte” (2 April 2015)

“(original apt. 18-6-15, before due as she wanted to apply × disability card).[54] Appetite was satisfactory. Sleep was fairly well … No significant mood fluctuation but would feel low at times. No major anxiety attacks.

MSE [mental state examination]: Mood mildly depressed. Not overtly anxious … No suicidal … thoughts.

Prescription: same” (13 April 2015)

“Appetite was satisfactory. Sleep was fairly well …No significant mood fluctuation but would feel low at times (with decreased magnitude after addition of Remeron). No major anxiety attacks … Had postponed her application × divorce.

MSE [mental state examination]: Mood not overtly anxious / depressed … No suicidal … thoughts.

Prescription: same” (18 June 2015)

290.As seen in paragraphs 315-316 below, Form 7 was issued on 3 July 2015, but P objected to the same on 15 July 2015. According to the discharge summary by PMH, P was admitted 9 days later on 24 July 2015 for “mixed anxiety and depressive disorder” and was discharged on 26 July 2015 with medications and follow-up appointments. According to the Psy Jt Report, P attended PMH’s WKPC on 30 July 2015, and the Psy Experts’ summary of WKPC’s notes for such attendance stated that P had “[been] admitted to PMH EMW [Emergency Medical Ward] from 24-7-15 to 26-7-15 for low mood with suicidal idea, and A/H [auditory hallucination] with vague content. Assessed by psychiatrist → Quetiapine 25mg N added. ……” On the same day of discharge, PMH’s AED referred P to PMH’s DO&T at P’s request. According to the referral letter dated 26 July 2015, P complained she was “still in persistent neck and back pain”, but there was “NO focal neurological deficit” (original capitalised word) and “Patient requested for O&T referral”.

291.In my view, P’s hospitalisation in July 2015 was temporally connected with (i) the issuance of the Form 7 on 3 July 2015, and (ii) P’s request for referral to PMH’s DO&T on the date of her discharge, and they were likely to be driving factors for P’s hospitalisation:

(a)

In respect of (i) above, I find on balance that P’s flare up of mental symptoms was reactive frustration over the MAB assessments in the Form 7 which she did not accept as she thought certain sick leave granted to her had not been included and the assessed loss of earning capacity was too low (see paragraph 316 below). Given the background of P’s injuries and my findings thereto, this plainly fed Dr Yip’s opinion that the perpetuating cause of P’s psychiatric condition and the persistence of her mental symptoms without significant improvement despite treatment were attributable to frustrations associated with overstating symptoms (see paragraph 355 below).

(b)

In respect of (ii) above, I note that on 1 November 2013 PMH’s AED had already referred P to PMH’s DO&T for priority consultation. I have found in paragraphs 238-239 above that the referral letter dated 1 November 2013 made clear there was little objective medical indicia for P’s generalised ache/pain when “[power] full over 4 limbs, neck [active range of movement] full”. But there was no appointment as yet for DO&T consultation. P was plainly anxious for (and hence her request for) PMH’s DO&T consultation to support her objection to the Form 7 and to bolster her case for the MAB review. After all, P had experience of her first hospitalisation in March 2015 that successfully enabled expedition of the appointment with PMH’s WKPC from June 2015 to April 2015 (see paragraph 289 above). But I note with interest that PMH’s AED had been at pains to emphasise the referral was at P’s request in the absence of objective indicia of medical deficit. This was reiterated in the referral letter dated 26 July 2015 that emphasised there was “NO” focal neurological deficit despite P’s complaints of persistent neck and back pain.

292.The medical report dated 20 January 2017 by PMH’s WKPC adopted the history set out in their report dated 19 November 2014 and went on to state that “[in] late July 2015, [P] reported episodes of having auditory hallucinations with vague content. She presented herself to [PMH’s AED] and was assessed by Psychiatrist. Quetispine was added and her auditory hallucinations subsided soon ……” According to the Psy Jt Report, P attended PMH’s WKPC on 30 July 2015, and the Psy Experts summarised WKPC’s notes for such attendance as follows:

“Been admitted to PMH EMW [Emergency Medical Ward] from 24-7-15 to 26-7-15 for low mood with suicidal idea, and A/H [auditory hallucination] with vague content. Assessed by psychiatrist → Quetiapine 25mg N added. … Appetite was satisfactory. Sleep was fair …No significant mood fluctuation but would feel low at times. No major anxiety attacks.

“MSE [mental state examination]: Mood not overtly anxious / depressed. No more vague voices reported currently. No D [delusion] elicited … No suicidal … thoughts.

Prescription: (with addition of Quetiapine)”

293.It appeared that auditory hallucination and suicidal ideation were elicited during P’s hospitalisation in July 2015 (but see paragraph 250 above). Dr Yu, whose opinion I accept, found P’s allegations in these respects to be exaggerated (see paragraph 354(c) and (g) below): (a) since it was unlikely for P to have suffered “persistent bodily pain” the underlying premise for her suicidality was not credible (ie save for initial reporting of suicidal idea “because of persistent bodily pain” to PMH’s WKPC on 4 February 2014 and a reference to fleeting suicidal ideation at the 1^st interview by CMC’s DCP on 23 June 2014, there was no record of suicidal thoughts by PMH’s WKPC from 4 February 2014 to 16 December 2016) (see paragraph 274 above), and (b) there were inconsistencies indicative of exaggeration in her allegations, eg notwithstanding P’s hospitalisation for inter alia hearing hallucinatory voices in 24-26 July 2015, there were “no more vague voices” by 30 July 2015 (see paragraph 292 above).

294.According to the medical report dated 21 January 2017 by HKC Clinic, on 18 September 2015 HKC Clinic referred P to HKC Clinic’s DOT for “Occupational Lifestyle redesign program”. Occupational therapy services with 2 sessions of pain management technique education were provided from 19 September to 9 November 2015. During the last review done on 9 November 2015, P’s condition was static and she was discharged on the same day.

295.According to the discharge summary by PMH, P was admitted on 29 October 2015 for “mixed anxiety and depressive disorder” and “vertigo”, and was discharged on 30 October 2015 with medications and follow-up appointments. According to Form 9 issued on 1 February 2016 (see paragraph 317 below), P was assessed by the MAB on 30 October, 6 November, 12 November 2015 and 18 January 2016. Plainly, P was admitted just a day before the 1^st MAB review assessment, and was discharged on the same day of such assessment. But despite such hospitalisation, P’s condition was not severe because according to the Psy Jt Report, P was able to attend PMH’s WKPC on 30 October 2015 (ie on the very day P was discharged from PMH), and the Psy Experts’ summary of WKPC’s notes for such attendance was as follows:

“Appetite was satisfactory. Sleep was fair … No significant mood fluctuation but would feel low at times. No major anxiety attacks.

MSE [mental state examination]: Mood not overtly anxious / depressed. No more vague voices reported currently. No D [delusion] elicited. … No suicidal … thoughts.

Prescription: Cipram 40 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, Lyrica 75 mg tds, ↑ Remeron 30 mg nocte, ↑ Quetiapine 50 mg nocte”

In my view, P was anxious to impress upon the MAB the seriousness of her condition (such that she required hospitalisation) when her condition was in fact quite fair.

296.2016  According to the medical reports dated 16 January 2015 and 25 January 2017 by HKC Clinic, HKC Clinic “had once order MRI spine for [P] as [P] requested [prior to 16 January 2015 – see paragraph 266 above], which its appointment will be in 2016”, and “MRI cervical, lumbar and sacral spine was done on 18/1/16 which showed mild prolapse intervertebral discs in L2-5 without spinal canal stenosis or cauda equine impingment”. P was given sick leave for 14-17 January 2016.

297.P was assessed by the MAB on 30 October, 6 November and 12 November 2015 and 18 January 2016 for “multiple injuries resulting in (i) post-concussional syndrome; (ii) headache, neck pain, low back pain and left heel pain; (iii) psychiatric impairment”. The Form 9 was issued on 1 February 2016 (see paragraph 317 below).

298.According to the Psy Jt Report, P attended PMH’s WKPC on 5 February and 20 May 2016, and the Psy Experts summarised WKPC’s notes for such attendances as follows:

“Appetite was satisfactory. Sleep was fairly well … No significant mood fluctuation but would feel low at times. No major anxiety attacks.

MSE [mental state examination] : Mood not overtly anxious / depressed. No more vague voices reported currently. No D [delusion] elicited … No suicidal … thoughts.

Prescription: Cipram 40 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, Lyrica 75 mg tds, Remeron 30 mg nocte, Quetiapine 50 mg nocte, add Artane 2 mg tds” (5 February 2016)

“Appetite was satisfactory. Sleep was fairly well … No significant mood fluctuation but would feel low at times. No major anxiety attacks.

MSE [mental state examination] : Mood not overtly anxious / depressed. No more vague voices reported currently. No D [delusion] elicited. … No suicidal …thoughts.

Prescription: same” (20 May 2016)

299.On 30 June 2016, Hong Kong Breast Cancer Foundation referred P (who was then asymptomatic) for bilateral mammogram and ultrasound scan of both breasts under the Breast Screening Programme. According to the report dated 30 June 2016 by Dr Lui Chun Ying of Hong Kong Women’s Imagining Limited, there were multiple nodules in both breasts. The mammogram revealed a 13mm x 9mm mass at the upper part of her left breast, which corresponded to the L11H nodule revealed in the ultrasound scan. “These are probably benign, could be fibroadenomas or fibroadenosis, BI-RADS category 3. Suggest short interval follow up ultrasound scan in 6 months to establish stability and may consider ultrasound guided core biopsy of L11H mass if there is overriding clinical concern or patient preference”.

300.According to the consultation notes of YCH’s ENT Clinic for 11 July 2016, P’s tinnitis was similar, “occ [occasional] blocked nose, hyposmia +”, but physical examination revealed TMs (tympanic membranes) were intact, “FN intact, AR [airway], throat: clear, NE: small NP [nasopharyngeal] cyst”. Medication was prescribed. According to the medical report dated 23 January 2017 by YCH’s DoENT, at the follow-up on 11 July 2016 P claimed to have heard some auditory hallucination recently, and she was referred to YCH’s AED for hallucination. According to the relevant referral letter dated 11 July 2016 by YCH’s ENT Clinic, it was said P had known history of reactive anxiety depression, and she “claimed to have auditory hallucination on and off recently”, hence she was referred to YCH’s AED for management. But despite P’s allegations, according to Dr Yu in the Psy Jt Report, the WKPC records from 20 January 2015 to 16 December 2016 recorded “[no] more vague voices currently”, and it was his opinion (which I accept) that such inconsistency indicated exaggeration. In any event, I have found that P’s ENT complaints were unrelated to the Accident.

301.On 30 August 2016, SKCJC GOPC issued a referral letter to PMH’s department of surgery (“DoS”) that noted P complained of on-and-off breast pain for 6 months, “[no] lump felt, [no] nipple discharge, [no] fhx [family history] ca [carcinoma] breast”. The referral letter referred to the mammogram and untrasound scan in June 2016, and gave physical examination results as “GC [general condition] stable, Nipples nad [no appreciable disease], breast symmetrical, [lumpiness] Rt upper outer quadrant and Lt ~ 11 o’clock region, nontender, Ax [axilla] clear”. SKCJC GOPC’s impression was “[breast] lumps/lumpiness”, and urged the SOPC of PMH’s DoS to see P.

302.According to the medical report dated 17 February 2017 by PMH’s DoS, P was seen at the breast clinic of PMH’s DoS on 14 November 2016. There was no family history of breast cancer. There was no more breast mass/pain at the time of consultation. Physical examination showed no breast mass. Private mammogram and ultrasound showed left 11 o’clock probably benign mass. PMH’s DoS would review P’s mammogram in their mammogram meeting for subsequent management, and P would be seen in 6 months’ time.

303.According to the Psy Jt Report, P told the Psy Experts at the Psy Exam on 16 May 2018 that she was seen at PMH’s Breast Clinic for suspected lump in her breast, but was told there was no need for operation. In P’s Letter dated 23 May 2017, P complained she “[had] CT, X-Rays and MRI for not less than 18 times, on 19 May had X-Rays for 7 times [ie radiological examination by the Ortho Experts], because there are metallic dentures, causing radiation, will affect her breast, not only there is radiation, moreover, it causes black spot in breast tissue, increase risk of having cancer”. There was, quite simply, no medical evidence to support such allegations, and no medical evidence to suggest that P’s breast condition was causally related to the Accident. I am not persuaded P’s breast complaints were injuries/sequelae relevant to the Accident.

304.According to the Psy Jt Report, P attended PMH’s WKPC on 2 September 2016, and the Psy Experts summarised WKPC’s notes for such attendance as follows:

“Appetite was satisfactory. Sleep was fair … No significant mood fluctuation but would feel low at times. No major anxiety attacks.

MSE [mental state examination] : Mood not overtly anxious / depressed. No more vague voices reported currently. No D [delusion] elicited … No suicidal … thoughts.

Prescription: Cipram 40 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, Lyrica 75 mg tds, Remeron 30 mg nocte, ↑ Quetiapine 100 mg nocte, Artane 2 mg tds”

305.According to the P WStmt, “自2016年10月6日起, [P] 在 [PMH’s DO&T] 接受診療。第一次在 [HKC Clinic] 接受骨科治療, 由於醫院未還 [P] 清白, 醫生一直沒有用藥及 [P] 及安排 [P] 判傷。直至第二次到 [PMH’s DO&T] 接受治療, [PMH] 醫生還 [P] 清白, 醫生才開藥給 [P] 及安排 [P] 頸及腰判傷”. But according to the Psy Jt Report, P told the Psy Experts at the Psy Exam that she was given analgesic medicine and medicine for neuropathic pain in the orthopaedic clinic. Physiotherapy and occupational therapy was arranged for her, but she was discharged from the orthopaedic clinic some time ago. And, in my view, P’s above allegations about MAB assessment in the P WStmt was not understood. P attended HKC Clinic being a GOPC and not a SOPC on 26 July 2014 for treatment by doctor from the department of family medicine and primary health care, who prescribed analgesics as well as medicines for dizziness and dyspepsia, and also ordered MRI spine for P “as she requested” (see paragraphs 266 and 272 above). Despite referral by PMH’s AED on 1 November 2013, there was no appointment as yet for PMH’s DO&T until priority appointment was given for 6 October 2016 pursuant to referral upon P’s discharge from hospitalisation on 26 July 2015 (see paragraph 290 above and paragraph below). I do not agree with P’s criticisms against HKC Clinic.

306.According to the medical report dated 26 June 2017 by PMH’s DO&T, P was referred by PMH’s AED to the SOPC of PMH’s DO&T on 26 July 2015 for further management of neck pain and back pain (see paragraph 290 above). She was first seen on 6 October 2016. The medical report gave the following history: (a) P was allegelly injuried at work on 8 February 2013 when she was a security guard, and claimed occiput/back injuries from being hit by a door, (b) P was under the care of PMH’s DoN and YCH’s DoENT since 2013 for management of head injury, and she attended GOPC for conservative management of neck/ back pain after the injury, (c) P completed a course of outpatient physiotherapy and occupational therapy with work rehabilitation, but the outcome report dated 24 November 2014 concluded her work capacity did not match her previous job demand with significant degree of limitation, (d) further rehabilitation potential was limited and resettlement/vocational retraining service was offered, (e) P was under care of WKPC for anxiety and depression since 2014. According to the Psy Jt Report, the Psy Experts summarised such medical report as follows:

“[P] was first seen in [PMH’s DO&T’s] clinic on 6.10.2016. …complained of residual pain over the neck and low back. She alleged of pain radiation to both thighs and there was diffuse numbness in both lower limbs. She denied the presence of such symptoms before the abovementioned injury. Physical examination revealed positive Waddell signs. There was no objective abnormality of her cervical and lumbosacral spine. Her lower limbs were neurologically intact. …As last seen …on 26.1.2017, her neck & back pain remained static ……” (my emphasis)

As D noted in the Answer, PMH’s DO&T did not issue any sick leave for P.

307.Form 9 was issued on 1 February 2016, ie about 3 years after the Accident and 8 months before P was first seen by PMH’s DO&T on 6 October 2016, so PMH’s DO&T could not have “…… 安排 [P] 頸及腰判傷 ……” Indeed, P recognised as much when she said under re-examination that “…… 後來照完磁力共振喇 [Hong Kong MRI done in January 2016], …… 骨科醫生話「妳嘅門好重?」[P] 話「係, 個門好重喇」, 佢話「妳同勞工處講判頸同腰喇」 ……”, “…… 後來 [P] 仲知道仲有好多傷未判, [P] 同 [LD] 講「做咩嘢我仲有咁多傷你唔判畀我呀?」佢話「妳上法庭同大狀講喇, 妳工傷完咗喇,冇得判喇」……”, “…… [P] 話「對我好唔公平囉, 我仲有頸、背、腰、蘿柚，仲有住院精神科、仲有工傷以來打擊我嘅乳房有黑點」…… 同埋 [P] 要求 [D] 賠償兼道歉囉, 賠償 [P] 喪失工作能力同埋精神永久創傷囉, …… 要求一個合理賠償囉, 賠償 ……對 [P] 嘅損失囉 ……” (my emphasis). Several matters were of note from P’s such evidence:

(a)	Although P in the P WStmt complained that “第一次在 [HKC Clinic] 接受骨科治療, 由於醫院未還 [P] 清白, 醫生一直沒有用藥及 [P] 及安排 [P] 判傷”, this was not correct because the doctors at the HKC Clinic did prescribe medications (see paragraphs 272 and 305 above), and the Form 7 and Form 9 did assess loss of earning capacity for “(i) post-concussional syndrome with headache, insomnia, irritability and dizziness; (ii) residual neck pain, low back pain and left heel pain ……” and “(i) post-concussional syndrome; (ii) headache, neck pain, low back pain and left heel pain ……” respectively (see paragraphs 315 and 317 below).
(b)	After the issuance of Form 9, the MAB had no statutory power to carry out further re-assessment, and any employee dissatisfied with the assessment in the Form 9 has to appeal to the District Court pursuant to section 18 of the ECO. Thus, LD was correct to ask P to bring her claim for further work injuries to the court for determination.
(c)	I am not persuaded that “…… [PMH] 醫生還 [P] 清白 ……” and/or urged P “「妳同勞工處講判頸同腰喇」 ……” when the Form 7 and Form 9 already included assessment for “multiple injuries resulting in” the conditions referred to in (a) above.
(d)	In any event, PMH’s DO&T did not really “…… 還 [P] 清白 ……” as P alleged when the doctors at PMH’s DO&T confirmed “[there] was no objective abnormality of [P’s] cervical and lumbrosacral spine. Her lower limbs were neurologically intact” (ie there was no objective deficit at P’s neck and waist/lumbar regions). Instead, physical examination by the doctors at PMH’s DO&T revealed P displayed positive Waddell signs, which, according to Dr Lam, “suggested non-specific pain symptom from unknown origin” and, according to Dr Yip, were non-organic signs of malingering or fictitious disorders (see paragraph 335 below). Given medical finding of no objective abnormality in physical and radiological examinations (as found by PMH’s DO&T, Dr Lam and Dr Yip), and in view of my factual finding of no direct head injury at the time of the Accident, the late onset of neck symptoms (at least after 18 February 2013), Dr Lam’s aforesaid opinion that the “non-specific” pain was of “unknown origin”, and Dr Yu’s robust view that P’s complaints were feigned, I find it unlikely that P suffered any significant neck injury. I prefer Dr Yip’s opinion that P’s neck and waist/lumbar pain symptoms were somatic over-reporting without physical origin. In my view, the medical findings by PMH’s DO&T actually served to undermine rather than to bolster P’s case.
(e)	P’s testimony under re-examination also demonstrated she was prepared to blame D for being hit on the whole posterior side of her head/body (which stance I have rejected) as the cause for all her ailments/conditions, including those which obviously had no causal connection with the Accident (such as her ENT and breast conditions).

308.According to the Psy Jt Report, P told the Psy Experts at the Psy Exam that she was seen at YCH’s ENT Clinic for tinnitus and impaired ability in smelling, and at the neurosurgical clinic of PMH’s DoN, but the treatment was stopped. I have found P’s ENT signs and symptoms were unrelated to the Accident.

309.According to the Psy Jt Report, P attended PMH’s WKPC on 16 December 2016, and the Psy Experts summarised WKPC’s notes for such attendance as follows:

“(assistant of district council reported in the absence of the patient that she had some self-muttering at times) Appetite was satisfactory. Sleep was still fair …No significant mood fluctuation but would feel low at times. No major anxiety attacks.

MSE [mental state examination] : Mood not overtly anxious / depressed, No more vague voices reported currently. No D [delusion] elicited … No suicidal … thoughts.

Prescription: Cipram 40 mg daily, Valium 2 mg bd prn and 5 mg nocte prn, Lyrica 75 mg tds, Remeron 30 mg nocte, ↑ Quetiapine 150 mg nocte, Artane 2 mg tds”

The medical report dated 20 January 2017 by PMH’s WKPC adopted the history set out in their report dated 19 November 2014, and went on to state as follows:

“In December 2016, [P] was reported to have self-muttering at times, and her medication was titrated accordingly.

When last seen on 16-12-2016, [P] was not overly anxious or depressed. Self-muttering was reported at times. No other active psychotic symptoms were elicited. Speech was relevant and coherent. There were no expressed suicidal or violent thoughts. Her lastest treatment included :- [psychiatric medication].”

310.2019  The medical report dated 30 April 2019 by PMH’s WKPC adopted the history set out in their reports dated 19 November 2014 and 20 January 2017 and went on to state as follows:

“[P] was largely settled then till she was admitted to [KCH] for psychiatric inpatient treatment from 8-2-2019 to 27-2-2019 for low mood and unstable emotion with idea of harming her husband, secondary to stress from compensation issue of her IOD dated 8-2-2013.

[P] remained settled with maintenance treatment since last discharge. When last seen on 13-3-2019, [P] was largely settled with no active psychotic or mood systems elicited. She was not overly anxious or depressed. Speech was relevant and coherent. There were no expressed suicidal or violent thoughts. Her latest treatment included :- [psychiatric medication]

From psychiatric point of view, [P’s] prognosis is not bad if her multiple bodily pain could be satisfactorily controlled. The impairment degree and the impact of the IOD [injury on duty] dated 8-2-2013 on her vocational capacity should be better commented by Neurologist and Orthopaedic Specialists.

Sick leave had been granted to [P] from [WKPC] since 26-8-2014.”

311.There was paucity of medical evidence as to the precipitating cause for P’s hospitalisation in 2019 apart from her generalised multiple complaints. The above medical report suggested P’s low mood and unstable emotion were associated with “idea of harming her husband”, which was suggestive of deterioration of marital relation as a precipitating stressor.

312.Another event that occurred during this period was the discharge of P’s legal aid certificate in relation to the present action on 28 January 2019. P in her re-examination stated that “…… 第二次係由 [PMH] 醫生簽名入去, [P] 完全唔知道咩嘢一回事喇, 喺 [KCH], 喺精神科醫院度住半個月完全唔清醒, 畀人哋綁手綁腳, 教會師母又探 [P]、教友又探我, [P] 完全唔知道, 唔清醒 …… 跟住直情由 [P] …… 同師母講「你哋喺度食飯」, 師母先知 [P] 唔清醒喇, 跟住到半個月後清醒喇, 師母話「妳多謝醫生醫醒妳喇」……”, “…… 如果 [Insurer’s] 醫生咁樣刺激 [P] 就唔使入住精神科囉, 有兩次喇 ……” It appeared that P blamed Drs Yip and Yu, and suggested their adverse opinion was the precipitating stressor that led to her hospitalisations in 2015 and 2019. But P’s hospitalisations in 2015 were long before the Ortho Experts rendered the Ortho 1^st/2^nd Jt Reports, and her hospitalisation in 2019 was about 15 months after the Ortho Experts rendered the Ortho Jt Reports on 20 July and 14 November 2017 and about half a year after the Psy Experts rendered the Psy Jt Report on 10 August 2018. In any event, since Drs Yip and Yu were not D’s agents/ servants, I am unable to see how P could blame D for their opinion in discharge of their duties to the court as forensic medico-legal experts (which opinion P did not accept) and/or for the DLA’s discharge of P’s legal aid certificate. I find on balance that P’s hospitalisation in 2019 could not be blamed on D.

313.2020  The medical report dated 10 December 2020 by PMH’s WKPC adopted the history set out in their reports dated 19 November 2014, 20 January 2017 and 30 April 2019, and went on to state as follows:

“[P] remained settled with maintenance treatment since last discharge. When last seen on 26-8-2020, [P] was largely settled with no active psychotic or mood systems elicited. She was not overly anxious or depressed. Speech was relevant and coherent. There were no expressed suicidal or violent thoughts. Her latest treatment included :- [psychiatric medication]

From psychiatric point of view, [P’s] prognosis is not bad if her multiple bodily pain could be satisfactorily controlled. The impairment degree and the impact of the IOD [injury on duty] dated 8-2-2013 on her vocational capacity should be better commented by Neurologist and Orthopaedic Specialists.

Sick leave had been granted to [P] from [WKPC] since 26-8-2014.”

314.The medical reports by WKPC in paragraphs 310 and 313 above suggested that “[from] psychiatric point of view, [P’s] prognosis is not bad if her multiple bodily pain could be satisfactorily controlled”. This was the view of non-judgmental treatment psychiatrists, which view had to be considered against the evaluative opinion of the forensic Psy Experts discussed below. But at least it suggested P’s mental symptoms were dictated by the veracity of her reporting of her physical condition, which in turn must rest on P’s credibility and the Ortho Experts’ opinion. I have found that P was preoccupied and frustrated with her mental/ somatic symptoms which persisted without significant improvement due to her overstatement, and as a consequence she spent excessive amounts of time and energy on these symptoms and health concerns even after her limited physical deficits had resolved or largely resolved. This undermined P’s allegations about her signs and symptoms (eg (a) having generalised pain, malaise, weakness and fatigue, (b) having trouble functioning, (c) having anxiety that such symptoms were serious disease, (d) feeling her healthcare providers were not taking her signs/symptoms seriously, and/or (e) approaching multiple healthcare providers to seek treatment and/or sick leave) as being attributable to the Accident. It is now appropriate to turn to the expert evidence, but before I do that I set out briefly the Forms 7 and 9, and also P’s many complaints throughout the years.

(c)  Form 7 and Form 9

315.The Form 7 issued on 3 July 2015 for “multiple injuries resulting in (i) post-concussional syndrome with headache, insomnia, irritability and dizziness; (ii) residual neck pain, low back pain and left heel pain; (iii) psychiatric impairment” assessed the period of absence from duty necessary as a result of the injury was from 8-11 February 2013, 14 February 2013 to 20 January 2014 and 25 January 2014 to 19 June 2015, and the assessed loss of earning capacity permanently caused by the injury was 13%. By a letter dated 25 August 2015 to P’s solicitors, the MAB clarified that the assessed percentage of loss of earning of 13% was 5% (DoN), 3% (AED), 5% (DoPsy), and 0% (DoENT).

316.On 15 July 2015, P objected to the Form 7 on the basis that certain sick leave granted to her had not been included, and that the assessed loss of earning capacity was too low.

317.According to the Form 9 issued on 1 February 2016 by the MAB for “multiple injuries resulting in (i) post-concussional syndrome; (ii) headache, neck pain, low back pain and left heel pain; (iii) psychiatric impairment”, the assessed period of absence from duty necessary as a result of the injury was 8-11 February 2013, 14 February 2013 to 20 January 2014 and 25 January 2014 to 18 January 2016, and the assessed loss of earning capacity permanently caused by the injury was 16.5%. There was no change to the assessed sick leave save that sick leave granted after Form 7 were included.[55]

(d)  P’s complaints

318.Ortho Exam According to the Ortho 1^st Report, P’s made the following complaints to the Ortho Experts at the Ortho Exam on 19 May 2017:

“33.  Dizziness all the time, especially in vehicles and walking downstairs.

34.  Headache, neck, thoracic and lumbar spine pain, bilateral lower limb pain from buttock down to sole

- Constant

- Provoking factors included watching television, poor mood, raining.

- Level ground walking tolerance 30 minutes, then after some rest, she can walk a maximum further 10–20 minutes.

- Standing for maximum10 minutes can increase pain.

- For stair climbing, needs to hold on handrail, can cope with one to a few flights (less than 5).

- Sitting for 10 minutes can increase pain.

- Can carry about 1 to 2 pounds, increased pain if more than 1-2 pounds. Must rely on husband for grocery shopping.[56]

- Does not know whether can squat or not.

- Cannot do household work.

- Neck, back pain can be partially controlled by self-thumping and change of posture.

35.  Can cope with self-care. Can only prepare cup noodles.

36.  Seldom participates in social activity. Does not eat out with friends.

37.  Cannot cope with public transport, except MTR because bus or van will cause dizziness.

38.  Her pain and dizziness improved in recent months after taking tonics.

39.  Unable to sleep, poor mood, poor memory.

40.  Afraid of sight and sounds of doors and ambulances.

41.  No travels to China even though mother passed away (According to Dr. Yip’s record).”

319.After the Ortho Exam, P sent P’s Letter dated 23 May 2017 to the Ortho Experts making further complaints:

“69.  地下已壞的大堂鐵閘門打掉幾隻牙齒 (Lost a few teeth because hit by the mal-function metal door)

70.  同時打傷頭部, 身體後方 (例如: 頸部, 背, 腰, 屁股) (At the same time also hit on her head and posterior aspect of her body (e.g. neck, back, lumbar area and buttock))

71.  由頭致腳, 全身痛, 行路腳指, 腳底均痛 (From head to feet, pain all over her body, pain over toes and soles with walking)

72.  全身多處有嚴重內傷及瘀血 (Internal injuries and internal bruises over multiple parts of body)

73.  有工傷後, 經常被先生鬧 (After the work injury, frequently scolded by husband)

74.  每月6千不足夠看醫生 (Six thousand dollars each month not enough to pay for treatment fee)

75.  做不到家務, 家庭關係破裂 (Cannot do household work, relationship between family members was broken)

76.  失去工作能力 (Lost ability to work)

77.  身體瘦了20斤, 同事及朋友突然關心及擔心, 並說本人傻傻地 (Lost 20 catties of body weight, colleagues and friends suddenly showed concern and worried about her, and said she became strange)[57]

78.  上司逼及恐嚇本人返工 (Superior (of the company) threatened her and forced her to go back to work)

79.  鬧交後, 無家可歸, 要訓公園 (After quarrel, cannot go home, had to sleep in the park)

80.  警察見到要求去和諧之家住, 但車費~ $20, 實在無法負擔, 只好繼續訓公園 (Policeman discovered her condition and advised her to go to “Harmony House”. However cannot afford to pay 20 dollars of transportation fee; therefore continued to sleep in the park)

81.  本人要求復工2次, 但被公司拒絕 (Requested to return to work for 2 times but were refused by company)

82.  照CT, X光及磁力共振共不少於18次,5月19日, 一共照了7次X光, 因假牙有金屬, 導致有輻射, 對乳房有影響, 不但有輻射, 更加令乳房有黑點, 增加致癌症風險 (Had CT, X-Rays and MRI for not less than 18 times, on 19 May had X-Rays for 7 times, because there are metallic dentures, causing radiation, will affect her breast, not only there is radiation, moreover, it causes black spot in breast tissue, increase risk of having cancer)

83.  壓力大, 身心受創, 精神崩潰, 已以淚洗面3年, 看什麼醫生都哭, 痛得不知道如何表達 (A lot of pressure, mind and body both injured, mentally broken, crying for 3 years, cried whenever she saw a doctor, so painful that unable to express her pain)

84.  開始出現記性差及眼蒙 (Started to develop poor memory and poor visual acuity)

85.  返風落雨, 各方面的痛會加劇 (More pain with rainy and windy days)

86.  工傷後, 身體越來越差, 體力下降, 更多次出現感冒 (Since injury, general body health keeps on deteriorating, general physique keeps on deteriorating, had flu many times)

87.  經常在街上暈倒, 途人好心幫忙CALL 白車, 本人拒絕後被途人恥笑及報警, 為無身份證人士 (Frequently fainted on street, after she refused other people’s help of calling ambulance, she faced other people’s contemptuous attitude and, police was called because she had not carried her identity card with her)

88.  曾自殺2次, 因各方面造成的痛楚難以承受 (Attempted suicide for 2 times, because the pain from all sources was unbearable)”

320.Psy Exam According to the Psy Jt Report, P made the following complaints to the Psy Experts at the Psy Exam on 16 May 2018:

“27.  According to [P], the following are her current symptoms,

(a)  Physical:

i.       She has on and off pain at the vertex (top) and the back of the head.  It occurs daily.  Each episode lasts up to a few hours.  It is of moderate degree.

ii.      She has on and off neck pain.  It occurs daily.  Each episode lasts up to a few hours.  It is of moderate to severe degree. 

iii.     She has on and off dizziness.  She fainted in the streets several times.  It occurs almost daily.  Each episode lasts up to a few hours.  Things in the surrounding move around when she has dizziness.  She has vomiting and friends thought she was pregnant. 

iv.     She has on and off pain in both buttocks, more so on the right side.  The right buttock had a concavity.  It occurs daily.  Each episode lasts up to a few hours.  It is of moderate degree. 

v.      She has on and off low back pain.  It occurs daily.  Each episode lasts up to a few hours, during which she was unable to eat and so she threw away the chopsticks. It is of moderate degree.

vi.     She has on and off pain in both knees.  It occurs daily.  She has difficulty walking down a flight of stairs.  The pain is triggered by walking.  It is relieved by massage and topical ointment.  The degree of the pain varies. 

vii.    She has on and off pain at the plantar aspect of both feet (both soles).  It occurs daily.  It is triggered by walking. 

viii.   She has on and off pain at both arms.  She has difficulty elevating her upper limbs and cannot take off her pull-over clothes.  Her husband scolded her when she asked him to help.

ix.     The pain symptoms started after the Accident.  The pain was at the most severe degree in the initial period after the Accident.  On the whole the pain symptoms have improved by about a half.  The symptoms have remained about the same in the past one to two years. 

x.      She has amenorrhoea.  She had flu and fever more often after the Accident.  She had loss of teeth after the Accident and a herbalist told her that the loss of teeth was related to the Accident.  She lost two or three molar teeth from the Accident, but did not disclose the loss initially.  The Accident also made her front teeth loosened and she had false teeth fitted.

(b)  Mental:

i.       She hears a voice, sometimes a male voice and sometimes a female voice, about once or twice a day both in the day time and in the night time.  Each episode lasts for up to one-plus minutes.  The voice says it is good for everyone if she dies.  She does not have fear on hearing the voice now. 

ii.      She sees dark grey shadows both at home and on the street in the day time and in the night time.  The size of the shadow is that of a person (either male or female) and sometimes it is smaller in size.  Sometimes it has the appearance of a person with long hair and sometimes with short hair.  She does not recognize the person.  Each episodes lasts for one to two minutes.  It has occurred a few times in the past one month.  Sometimes she is clear in her mind and sometimes unclear in her mind when she sees the shadow.  She says she fainted on the street more than a month ago and then she saw a shadow.  She has fainted on the street on two to three occasions this year. 

iii.     She is forgetful.  She forgets what she has been asked to buy.  She mixes up sugar and salt when she cooks.  She forgets to turn off the gas and leaves the house when she is boiling something.  A week ago, she boiled dry a pot and the kitchen was darkened.  She just closes the wooden door and forgets to close the metal gate of the residence when she goes out.  The wooden door is not locked.

iv.     She has difficulty falling asleep. She sleeps for one to two hours usually in the night time.  At most she can sleep for two to three hours. 

v.      She does not have any interest to go out for fun.  She used to put on cosmetics but not now. 

vi.     She has decreased appetite.  She takes meals two times a day.  Her body weight has decreased by more than twenty pounds after the Accident.  She is not sure if her body weight has remained about the same in the past one year. 

vii.    She is depressed and feels distressed when her husband scolds her as being useless even if she does not die.  She is depressed because she is not able to do household chores and she cannot support the finance of the family.  Previously she shared half of the expenses of the family.  She described on one occasion she slept in the park and was brought by the police to a MacDonald.  Then she had rows with her husband.  She says that she sat in the park in the night time at least once or twice almost every month.  It happened more often in the past.  She was seen by a social worker of the Samaritans and was suggested to have divorce with her husband.  This happened about one to two years ago. After the intervention by the social worker, her husband refused divorce and has become better to her.  She says that in the first year after the Accident her husband slapped her at the face when she asked money from him.  Now he does not hit her but still scolds her for being useless.  She is also depressed because of her pain symptoms.  Currently she has on and off depressed mood five to six days in a week and each episode lasts up to a few hours.  She says for one to two days in a week she does not have negative thoughts.   She is happy when she takes an orange or a banana, when friends chat with her, and when a doctor shows concern to her.  She is troubled by the work-related injuries and has pressure from the pain symptoms and from financial issue.   

viii.   On the whole she considers that the psychiatric symptoms have improved.  For example, she has less hallucination.  However, she is not sure about the degree of improvement.”

321.P WStmt According to the P WStmt made on 30 November 2018, P complaints at that time were as follows:

“48.  至今，本人仍慘受下列的殘疾及痛楚：-

(a)  長期頭痛及頭暈；

(b)  由頭至腳全身疼痛，特別頸部、雙肩、雙臂、腰部、背部、臀部及雙腳疼痛；

(c)  大腿麻痺，走路時雙腳腳底灼熱疼痛；

(d)  上半身內傷；

(e)  腰背僵硬疼痛，睡覺時只可側睡，不可平伏在床上；

(f)  低頭時及坐車時特別暈眩；

(g)  睡覺時雙腳伸直時會疼痛，需要曲腳；

(h)  落樓梯有困難, 不能連續落多層樓梯；

(i)  咳嗽、打噴嚏亦會疼痛；

(j)  進行性生活有困難，自意外至今與丈夫分床；

(k)  嚴重精神困擾、失眠及易怒，曾兩次自殺；

(l)  不能集中精神；

(m)  自意外至今不能進食辛辣、酸及寒涼的食物；

(n)  不能從事意外前的工作。

49.  意外後，本人因失去收入，家中經濟出現困難，本人受丈夫責備，本人與丈夫感情破裂，本人曾有數個月需要在公園露宿。”

322.Trial  P in her evidence-in-chief claimed that since the Accident “ …… 後腦兩個地方腫咗 …… 個頸紅晒、個背同埋兩個手臂瘀晒--瘀黑, 除衫除唔到 …… 叫 [P’s] 先生除, 除得到又畀佢鬧, ……”, “…… [P] 個頭到而家都未有一日唔痛、唔暈呀, 一低頭同埋坐車、一頸怕凍就突然暈呀。…… 當時畀個鐵門打到 [P] 落樓都落唔到, 喺度震震震, 震到成幾分鐘醒唔到 ……” Under cross-examination, P reiterated “…… [P] 工傷嗰日到而家, [P] 到今時今日個頭未試過一日未痛、未暈, [P] 成日喺條街度暈低 ……”, “…… [P] …… 工傷以後call過好多次白車 ……”, “…… 有一次唔要人哋call白車, 就報警拉 [P], 話 [P] 冇身分證嘅 ……”, and P “…… 對啲門到而家都有陰影 ……”

323.Summary  A number of matters were of note in respect of P’s many complaints set out above. First, in 2017, 2018 and at trial P complained that she could not cope with public transport except MTR and she could not bend her head to look down or to wash dishes because taking minibus/bus or bending her head down would cause dizziness (see paragraphs 268, 318 and 321-322 above and paragraph 346 below), but such allegation was exploded as P was observed in 2014 taking minibus and bending her head down to handle her mobile telephone in the Surveillance Recordings. Secondly, in 2017 and at trial P complained of being fearful of the sight/sound of doors (see paragraphs 318 and 322 above), but such allegation could not be right because she was observed in 2014 to easily push open glass door for entry/exit without hesitation or facial grimace in the Surveillance Recordings. Thirdly, in 2017 and 2018 P complained that she frequently fainted on the street due to dizziness, which episodes occurred almost daily, lasted up to a few hours and involved vomiting (see paragraphs 319-320 and 322 above), but the Surveillance Recordings in 2014 showed P was out and about on the street/park for extended time without bout of dizziness as alleged. Fourthly, in 2018 P complained she had difficulty walking down a flight of stairs because of headaches, dizziness, low back pain and knee pain (see paragraphs 320-321 above and paragraph 346 below), but in the Surveillance Recordings in 2014 she was seen to walk down steps/ staircase without pause or rest. Fifthly, in 2018 P complained of difficulty in elevating upper limbs to take off pullover clothes and needed her husband’s help (see paragraphs 320 and 322 above and paragraph 346 below), but P was seen to have full range of movement for her shoulders and her upper limbs when she used a towel to wipe her neck, body and back underneath her tee-shirt in the Surveillance Recordings in 2014. This was also borne out by the Ortho Experts’ physical examination of P that revealed active range of motion of both shoulders were “near full and symmetrical full” and for the elbow and waist was “full” (see paragraph 326 below).

324.From the above account of P’s medical care and treatment, her complaints throughout the years and my observations set out in Part III(m)-(n) and Part IV(b)-(d) above/herein, it appeared there was little medical/physical cause for P’s reported somatic signs/symptoms and worries over physical signs, and even if there was some medical/physical cause, her limited physical disorder (eg left heel abrasion/ contusion) had resolved, and her intense worry was quite out of proportion to her underlying condition. In my view, as bolstered by Dr Yu’s opinion in paragraph 355 below, P’s overstatement of symptoms (such as generalised pain/fatigue from head to toe, shortness of breath, hand tremor etc) caused overly excessive and long-lasting frustrations and negative thoughts about the seriousness of her physical condition that caused her to visit multiple healthcare providers and to seek many medical examinations/treatments. Plainly, P’s overstatement led to excessive preoccupation and anxiety about her signs/symptoms, seeing mild signs as serious conditions, wishing for various diagnostic tests and examinations, feeling she was not taken seriously by her healthcare providers, going to and seeking treatment from multiple healthcare providers, spending excessive time, energy and money in dealing with her alleged health concerns, becoming angry with others (eg husband) for perceived insufficient emotional support, and having trouble with day-to-day functioning because of her worries, which worries arose from frustrations associated with overstatement of symptoms and could not, in my view, be attributable to the Accident and its limited sequelae. It appeared that with treatment P had some improvement and remission of symptoms, but she had difficulty in accepting her concerns were excessive and inappropriate due to her overstatement.

(e)  Ortho Jt Reports

325.Physical examination  The Ortho Experts noted P appeared very emotional, constantly crying and agitated, and was very melodramatic physically and verbally. During the Ortho Exam on 19 May 2017, P frequently got up, frequently moving her neck and back, and frequently putting her head down on forearm that rested on the table. Otherwise, P’s sitting and standing were normal, and no walking aids were required. But P had a slow and unsteady gait, and said to be unable to perform single leg standing, tiptoe walking, heel walking and squatting. P claimed under cross-exmaination she did not lie when she told the Ortho Experts she was unable to perform single leg standing, tiptoe walking, heel walking and squatting, but in the Ortho 1^st Jt Report, Dr Yip opined that P’s such alleged disability was feigned. Indeed, the Surveillance Recordings showed that as early as in July 2014, P had normal and easy walking gait and that by leaning with one hand on a post she could stand on one leg and then lift her other leg to fix the sock on her foot (see paragraph 372 below).

326.For the spine, tenderness was reported over whole neck, whole spine and extensive paraspinal area on superficial palpation. There was inconsistent reporting of tenderness over palpation on cervical spine midline, trapezius and shoulder. P claimed firm percussion and palpation / massage of the Ortho Experts’ examination could help relieve pain. Active range of motion of neck was 30° painful (flexion), 40° associated with dizziness and blurring of vision (extension), 40° painful (rotation to right) and 40° painful (rotation to left). Active range of motion of both shoulders was “near full and symmetrical full” for extension, flexion, adduction, abduction, internal rotation and external rotation, and elbow and waist was “full” for both extension and flexion. Upper limb tremor during movement was noted, but motor power for shoulder (adduction and abduction) and elbow/wrist (extension and flexion) was 3 for both sides. Hoffman sign was negative, but finger escape sign could not be performed.

327.For the lower limbs, the range of motion for ankle was 0° for dorsiflexion and 30° for plantarflexion on both sides. There was a 1cm transverse scar at lateral aspect of the Achilles Tendon at the left heel with mild tenderness reported. Motor power for hip/knee (extension and flexion) and ankle (dorsiflexion and plantarflexion) was 3 for both sides. P said under cross-examination that she did not under-perform in respect of motor power of her lower limbs at grade 3 (out of 5) and did not lie about dorsiflexion of both ankles being 0°, and although she could perform dorsiflexion of ankle by the time of trial, she claimed “……好痛囉 …… 左腳好啲, 右腳 …… 就唔係幾得, 因為右邊蘿柚凹同埋右腳凹就唔得囉 ……” As explained in paragraph 191 above, it was difficult to see why P’s right leg was worse than the left leg when it was her left heel that was clipped by the closing Left Door, which door had no contact with her right leg. Further, in the Ortho 1^st Jt Report, Dr Yip opined that the diffuse lower limb weakness of grade 3 out of 5 also completely contradicted the fact P could attend the Ortho Exam without any walking aid or wheelchair. Dr Yip cited further examples, eg if P had bilateral ankle had absence of dorsiflexion movements, she would not have been able to walk. P’s normal and easy gait as early as in June/July 2014 was also evident from the Surveillance Recordings.

328.The Ortho Experts noted cogwheeling weakness during all active movement of both upper and lower limbs. In the Ortho 1^st Jt Report, Dr Yip opined that “[cogwheel] weakness is often demonstrated malingering. [P] demonstrated cogwheel weakness both in the upper and lower limbs ……”

329.The Ortho Experts also noted during the Ortho Exam that there was whole body jerking movement during examination for upper and lower limb reflexes. Straight leg raising (supine) test was 0° (right) and 20° (left) both associated with pain over lower limb and low back, but straight leg raising (sitting) test on both sides was 80°. P said under cross-examination that she did not lie about test results for straight leg testing (supine) of 0° (right) and 20° (left) both associated with pain over lower limb and low back. But in the Ortho 1^st Jt Report, Dr Yip opined that “[the] extremes of [P’s] feigning is further illustrated by her demonstration of 0° of straight leg raising on the right hand side lying flat but when the same test performed sitting, it is 80°”. On balance I accept Dr Yip’s opinion, and, indeed, even in October 2014, P had straight by raising 70° on both sides (see paragraph 269 above).

330.During the Ortho Exam, the Ortho Experts noted that vertex compression test caused pain from head to sole, and arm elevation test was positive. Shoulder compression caused diffuse pain lower body, and pelvic trunk rotation caused diffuse pain over lower body. “Light touch sensation over all 4 limbs: “cannot tell what is normal or tell the difference between her face and her limbs”.” Whilst P agreed the Ortho Experts tested light touch sensation over all her limbs, she disagreed that in telling the Ortho Experts she could not tell what was normal or tell the difference between her face and her limbs was a lie, and claimed “…… 唔虛構, 而家都唔知 ……” In the Ortho 1^st Jt Report, Dr Yip opined that the fact “[P] claimed she could not tell what ‘normal sensation’ is, when such examination was performed” was a sign of “demonstrated malingering”. I accept on balance that P’s such assertion was exaggerated overstatement.

331.Radiological examination According to the Ortho Experts, x-rays cervical and thoracic spine taken on 19 May 2017 showed minimal degenerative changes and the alignment was normal with no significant bone lesion seen, and x-rays lumbar spine taken on 19 May 2017 showed decrease in lumbar lordosis and minimal degenerative changes but no significant bone lesion.

332.P said under re-examination that “…… [D] 私家醫生點會七次X光, …… 醫生話「妳係咪傻喇? 唔可以照咁多喇」, 但 [P] 當時照完七次X光, 當時 [P] 嚟緊經期喇, 跟住好多好多, 跟住 …… 冇經期嚟喇, 到而家都冇經期來喇, 呢啲都係 [P] 人生最大嘅遺憾, [P] 未有兒、未有女, 到而家都冇經期來 ……” I note it was joint radiological examination by P’s Ortho Expert Dr Lam and D’s Ortho Expert Dr Yip, and not by Dr Yip alone. In my view, there was no medical evidence to support P’s farfetched allegation that the radiological examinations had any correlation to her menstrual condition and/or her fertility. This reflected clear overstatement of symptoms that fed her frustrations.

333.Opinion on Ortho Exam  Under cross-examination, P denied that at the Ortho Exam “…… [P] 係故意提供唔真實嘅反應嘅 ……” with a view to “…… 誤導 [Ortho Experts] 以為 [P] 嘅傷勢係好嚴重 ……”, and she even claimed “…… [P] 仲隱瞞咗添, 唔識表達 ……”

334.The Ortho Experts agreed there was no known pre-existing condition that might affect the treatment outcome in respect of the Accident, and despite P’s complaint of pain all over her body and physical examination that showed non-specific generalised tenderness over whole spine, there was no focal neurological deficit in the limbs, and x-rays cervical/thoracic/lumbar spine showed no significant abnormality. In short, the Ortho Experts were of the joint view there was no orthopaedic or musculoskeletal physical cause for P’s multiple complaints (see paragraphs 337-338 and 341-343 below).

335.The Ortho Experts noted that apart from her orthopaedic injuries P developed multiple somatic symptoms (eg headache, dizziness, and mental symptoms) after the Accident, and opined they could not be orthopedically explained by the subject injury. In short, the Ortho Experts agreed that P’s multiple complaints were not supported by underlying physical/orthopaedic causes, which was in line with my views above on the chronology of P’s complaints, her consequent medical care/treatment and her positive Waddell signs (see paragraphs 323-332 above). Indeed, Dr Yip in the Ortho 1^st Jt Report went further to say that the Ortho Exam reflected P’s demonstrated malingering and “[the] list is extensive.”

336.Dr Lam’s opinion Dr Lam noted that P attended PMH’s AED on 8 February 2013, and claimed she was hit by a large metal door and sustained left heel injury. On examination there was a 1cm abrasion at left heel. No head injury, neck injury or back injury was reported at that 1^st consultation. Back injury was documented on 18 February 2013, neck pain was documented on 1 March 2013, and head injury was documented on 21 March 2013. Dr Lam opined that, based on the available information, P suffered left foot injury. With such mode of injury, it was also very likely that she also suffered from back injury. In the Ortho 1^st Jt Report, Dr Lam’s diagnoses of the Accident were left foot injury with abrasion over left heel, and soft tissue sprain injury of low back.

337.Although P also reported neck injury, Dr Lam opined it was unlikely that she suffered from significant neck injury because of (a) the mode of injury seen in the CCTV Recording and (b) the late onset of neck symptom (at least after 18 February 2013). Dr Lam also took into account that no direct head injury was seen in the CCTV Recording. As regards P’s complaint of multiple non-specific symptoms, Dr Lam said her current orthopaedic symptoms could not be explained by the diagnoses of the Accident and the radiological findings. In Dr Lam’s opinion, a certain degree of residual pain was likely to be present in P’s left foot and low back, but P’s symptoms due to the Accident might have been overshadowed by her severe non-specific generalised pain. Dr Lam estimated that the orthopaedic whole person impairment due to the Accident to be 1.5%, ie 0.5% for residual left foot pain and scarring, and 1% for residual low back pain.

338.In the Ortho 2^nd Jt Report, Dr Lam maintained the same diagnoses for the Accident. He noted P was seen by PMH’s DO&T on 6 October 2016, and complained of neck / low back pain and lower limb symptoms. No objective abnormality was found in physical and radiological examinations, and Waddell signs were positive. The findings of PMH’s DO&T were less severe than those elicited during the Ortho Exam, which “suggested non-specific pain symptom from unknown origin”. Dr Lam maintained his opinion in the Ortho 1^st Jt Report.

339.Thus, even P’s own Ortho Expert Dr Lam found that P’s claim for neck and head injuries could not be supported on physical/ orthopaedic basis, and P’s “multiple non-specific symptoms” and “severe non-specific generalised pain” could not be explained by the mechanism of the Accident (that resulted in left foot injury and soft tissue injury to buttocks and low back) and the objective radiological findings. Rather, Dr Lam noted the orthopaedic findings of PMH’s DO&T in October 2016 were even less severe than those elicited during the Ortho Exam, so he came to the view P’s non-specific painsymtoms had non-organic cause.

340.Dr Yip’s opinion In the Ortho 1^st Jt Report, Dr Yip opined that the detailed AED medical records by multiple independent doctors clearly documented P’s principal problem to be left heel pain with abrasion. There was only slight discomfort or “fatigue” (as P described it then) of the back. Thus, Dr Yip’s diagnoses were (a) simple laceration of the left heel without gapping, and (b) trivial buttock soft tissue injury. But these injuries even in combination were so mild that P declined medication repeatedly for the 1^st month. No complication from the abrasion was found, and P was able to walk unaided throughout. Dr Yip suggested P’s principal concern for the attendance at PMH’s AED was to have sick leave extensions.

341.P complained of multiple non-specific musculoskeletal complaints and extensive pain that could not be medically explained. Dr Yip opined that such complaints were not consistent with the diagnoses and the medical evidence, and were likely to be feigned. Dr Yip further opined that the medical evidence clearly showed P would go out of her way to mislead the medical examiner and to influence the medical opinion in her favour to suit her motive. She was “melodramatic so as to distract the examiner and to drag the interview process to an unbearable pace”. Further, in light of the matters during the Ortho Exam which Dr Yip noted (see paragraphs 325-332 above), Dr Yip would go so far as to say P was effectively totally clinically unreliable. Dr Yip opined that when considered with the CCTV Recording, there was a high degree of certainty that P’s complaints were unlikely to be genuine, but such complaints could be explained by malingering. Dr Yip opined that P’s simple laceration of the left heel without any gaping or any complication did not result in any permanent impairment.

342.In the Ortho 2^nd Jt Report, Dr Yip noted P only alluded to left heel injury in the acute phase whilst the medical report by PMH’s AED clearly showed the neck, back and other subjective symptoms were reported much later. Dr Yip found this was clinically and logically consistent with the CCTV Recording. Dr Yip opined that much later P expanded her alleged injury to head and back to treatment doctors “who were compelled to give her the benefit of doubt”. Thus, the subsequent diagnoses (eg concussion) were dependent the assumption there were such actual injuries. But P’s vague complaints from head to toe were typically seen in malingering or fictitious disorders. Even if P had minor contusion to those areas, they should not present in the manner or severity as alleged.

343.Dr Yip agreed with the treatment orthopaedists that no sick leave was necessary for P’s orthopaedic complaints based on her presentation and the time from the injury. The finding of Waddell non-organic signs at the 1^st orthopaedic consultation was further supportive of fictitious disorder. Bizarre inexplicable complaints/findings were found extensively during physical examination at the Ortho Exam, eg whole body jerking movement during upper and lower limb reflexes testing, and shoulder compression causing diffuse pain in the lower body, which were fictitious responses. Dr Yip found P’s only consistency was her clinical unreliability as documented by many different medical practitioners. Even though P was treated to the highest standard and had been thoroughly worked up by different specialties with appropriate investigations, no real or serious pathology was identified despite the passage of time. Dr Yip maintained all his opinion in the Ortho 1^st Jt Report.

344.Discussion P disagreed with the opinion of the Ortho Experts that “…… 話 [P] 痛又假、喊又假，話 [P] 甚麼都假, [P] 想問 …… 咁 [P] 七個鐵打、四個中醫,包括政府啲醫生話 [P] 頭、頸、背、腰痛，係咪都係乜嘢呢? ……” In her re-examination, P questioned why Drs Yip and Yu found she had no permanent impairment when the MAB by the Form 9 assessed her loss of earning capacity was 16.5% for her neurological, orthopaedic and psychiatric conditions.

345.In my view, the courts in dealing with claims for common law damages are not guided by the percentage of loss of earning capacity as assessed by the MAB or as opined by medico-legal experts.[58] Given the above analysis and observations in respect of the mechanism of the Accident, P’s injuries as a result of such Accident, her treatment and care by healthcare providers who took on board P’s reported complaints on non-judgmental basis such that their diagnoses and treatment must be viewed against the forensic evaluative opinion of the Ortho Experts, I prefer and accept on balance the opinion of Dr Yip as set out in the Ortho Jt Reports which was consistent with the objective evidence (eg the CCTV Recording, the Surveillance Recordings, the radiological examinations (MRI and x-rays), and P’s Waddell signs) and my findings. Indeed, Dr Lam accepted that P’s somatic complaints (which could not be orthopedically explained) might have overshadowed her limited orthopedic impairment (see paragraph 337 above), and I have found such somatic complaints to be exaggerated overstatement not attributable to the Accident.

(f)  Psy Jt Report

346.P’s psychosocial adjustment  At the Psy Exam, the Psy Experts elicited P’s then psychosocial adjustment as follows:

“28.  Currently [P] is living with her husband as before the Accident.  Currently she is not at work. She received four fifths of monthly salary during more than one year of sick leave after the Accident. Then she had been on [CSSA] for one-odd year. She was paid a sum of compensation last year.  She repaid part of her debt. Currently she had debts from her younger sister and two friends amounting to about one to two hundred thousand dollars. 

29.  Her husband had leg injury about two years ago and was only able to do part-time job as a replacement taxi driver for one year.  Now he has returned to full time taxi driving. 

30.  Currently she gets up at about 8 am.  After morning toiletry she takes bread as breakfast.  The bread is bought by her husband.  She goes to the park to walk for about half an hour and for two to three times a week.  She has two close friends, and they come to meet her in turn amounting to once or twice a month. Sometimes she goes shopping.  She may not recognise her way to return home and she just cries.  She is brought home by her neighbour.  She cooks noodle for herself.  Otherwise she does not do household chores.  When she is at home, she usually lies on the bed.  She may listen to the Bible with her mobile phone. 

31.  Currently in general she has no problem in basic self care.  She can take a bath, wash her hair and wear the clothes.  A bone setter has advised her not to bend the back.  She can travel by MTR but has difficulty to find the appropriate exit. She has difficulty to travel by bus because of her dizziness. 

32.  After the death of her mother, she returned to Mainland China for the funeral.  She had also returned to Mainland China on a few occasions, say, to get some medicines for herself from her relatives and to attend the burial of the bones of her mother. 

33.  Currently she wishes to go to work.  She will try if she is given the opportunity to return to the job.  She feels she can cope with light duties when patrolling is exempted.  She thinks she cannot walk down a flight of stairs because of headache, dizziness, low back pain and knee pain.  She considers that if she has dizziness when she is back to work, she may resign from the job.  She also considers that her mood can affect her work adversely.  She does not have any alternative job that she has considered.  She does not have any plan for her future.  If she retires now, she feels there is no meaning in life. 

34.   (a)  She says that previously her goal was to help her mother to come to live in Hong Kong even if it was for a few months.  Before the Accident she bought expensive ($10,000-odd a tael) Chong-cao [虫草] (caterpillar fungus) to her mother who consumed a tael in several months.  She also gave her mother 500 Renminbi a month.   After the Accident she could only afford to buy cheap ($4,000-odd a tael) Chong-cao to her mother.  She believes that it was because of the change in the Chong-cao that had led to her mother developing choking at the time of the death.

(b)  According to the handwritten information of the Plaintiff dated 25 May 2018 (in Chinese), “the greatest regret in life was causing the death of my mother”.

35.  She had turned to Christianity in the year after the Accident.  The pastor’s wife brought her out.  She went to the church to listen to the sermon and to pray.  The pastor prayed for her.”

347.Mental state examination  At the Psy Exam, the Psy Experts carried out mental state examination of P as follows:

348.Under cross-examination, P remembered she was examined by the Psy Experts. She disagreed that at the time of the Psy Exam “…… 其實 [P] 係精神上 …… 只係患有輕微嘅適應力障礙啫, 而係 [P] 嘅情況唔會影響 [P] 嘅日常生活或者工作能力嘅 ……”, and “…… [P] 係故意提供錯誤嘅答案嚟誇大 [P] 嘅傷勢 ……” Instead, P claimed “…… [P] …… 仲隱瞞咗啲痛添 …… 講少咗 …… 就唔單只唔誇大, 仲要隱瞞咗呀 ……” When pressed, P agreed there was little point in hiding her condition from the Ortho/Psy Experts and/or worrying about losing her job by the time of the Ortho/Psy Exams (ie after commencement of the present litigation), but she alleged “…… 但都係個頭影響 [P] 囉 …… 就表達能力唔係幾好囉, 唔識善意表達囉 ……”, “…… 即係個中醫都咁講喇 ……” For reasons discussed above, I am not persuaded P was unable to articulate her injuries. I note she gave detailed accounts to the Psy/Ortho Experts, and also wrote the detailed P’s Letter to the Ortho Experts and gave the detailed P WStmt that set out her complaints.

349.Common ground The Psy Experts agreed to adopt DSM-5 as the diagnostic and classification system. They agreed on the history and mental state examination findings at the Psy Exam. It was common ground that P was mentally normal before the Accident.

350.Diagnosis  The Psy Experts agreed that P’s psychiatric symptoms based on the available documents satisfied criteria A, B, C D and E[59] and fulfilled the diagnostic criteria of an adjustment disorder. In the presence of predominant depressive symptoms, the Psy Experts’ diagnosis was adjustment disorder with depressed mood. P received treatment from public psychiatric clinic since February 2014, and from clinical psychologist from June 2014 to April 2015. Improvement and fluctuation of her psychiatric symptoms had been reported, but the current mental symptoms were very mild.

351.Dr Lai premised his opinion on the description of the Accident in the joint instructions letter by the parties’ solicitors dated 6 April 2018. P’s case under such instructions was as set out in paragraph 3 above. After the Accident, P developed psychiatric symptoms in addition to his physical symptoms:

“Based on the information from the available medical documents, [P’s] psychiatric symptoms with the date of the symptom first reported in brackets have included: decreased appetite, hand tremor, shortness of breath (WKPC Triage, 1 Mar 2013), headache, dizziness, impaired memory, poor attention span (Dr. Wong Wai Kei, 1^st consultation 15 May 2013), low mood, weeping episodes, fluctuated appetite, subjective weight loss, unsatisfactory sleep, loss of interest / volition / energy, psychomotor retardation, social withdrawal, negative cognitions (worthlessness, helplessness, loneliness), easy agitation, more anxiety prone, intrusive fearfulness, feeling of apprehension, hypersensitivity to noise / voice, palpitations, tremors, shortness of breath, chest tightness, muscle tension, general malaise, suicidal idea, thought of jumping from height, worsened marital relationship, mental state examination findings of mood being a bit tense and depressed (WKPC, 4 Feb 2014), expecting contract to end in June 2014, feeling of at a loss about her future, difficulty to express herself, losing her way to home from market many times, shattered self worth, being forgetful, low mood most of the day, irritable mood, losing interest in watching television, going to karaoke and yum cha, generalized anxiety when with many people around, mother passed away in April 2014, worries, dream about being hit and stabbed by others, avoiding going to crowded / noisy place, observation findings of sobbing, some social smiles at times (CMC clinical psychology, 23 Jun 2014).”

352.In assessing P’s then psychiatric condition, Dr Lai considered the following:

353.On the basis of information from the available medical documents, current examination findings and the above discussion, Dr Lai observed there were inconsistencies, and opined that P likely tried to impress the Psy Experts of the seriousness of her condition, and that at the time of Psy Jt Report she was likely to be suffering from very mild psychiatric symptoms.

354.Whilst Dr Yu agreed with Dr Lai that P was likely to be suffering from very mild psychiatric symptoms, Dr Yu gave his own reasons as follows:

355.Causation  Dr Lai opined that on the basis of the nature and timing of the development of P’s psychiatric symptoms, it was compatible with the adjustment disorder being caused by the Accident and its aftermath. But Dr Yu opined that (a) for the precipitating cause(s), the development of mental symptoms subsequent to the Accident was attributable to the Accident, but (b) for the perpetuating cause(s), the persistence of P’s mental symptoms without significant improvement despite treatment was attributable to frustrations associated with overstating symptoms.

356.Prognosis  Dr Lai said that in general the prognosis of an adjustment disorder depends on the development of its stressors, and he opined that based on the presence of normal pre-morbid personality, absence of family history and past history of psychiatric illness, and absence of severe degree of underlying physical pathology, it was likely P would have minor residual psychiatric symptoms after completion of further treatment and conclusion of the present litigation. Dr Yu agreed that in general prognosis for adjustment disorder is good as most patients return to their previous level of functioning after treatment or termination of the stressor, but he opined that in P’s case the prognosis depended entirely on the outcome of the compensation litigation. If the outcome would not be as she desired, she might suffer great frustrations. But even if the outcome were unfavourable, she might still move on and come to terms with this unhappy chapter of her life.

357.Disabilities  As to assessment of P’s permanent disabilities based on her psychiatric condition, Dr Lai opined that they were likely to be in the very mild range. Her levels of impairments were likely to be compatible with most useful functioning. With reference to the 5^th edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association, from the psychiatric perspective P had no problem in self care and activities of daily living, she could travel around on her own, she had appropriate attention and concentration, her ability in adaptation to a work environment would likely be similar to her ability before the Accident, so she would likely have minor residual psychiatric symptoms. For a gross estimation of the degree of severity, Dr Lai opined that the permanent impairment of the whole person based on P’s psychiatric condition as a result of the Accident was within 1.5%. On the other hand, Dr Yu considered P’s permanent impairment was 0%. P only had very mild symptoms, and no more than slight impairment in functioning. She had no permanent impairment due to mental symptoms.

358.Summary  I note as a starting point that Dr Lai did not state in the Psy Jt Report that he had viewed the CCTV Recording, and he expressly adopted P’s account of the Accident as pleaded (see paragraph 99 and footnote 22 above). Thus, Dr Lam’s opinion rested on the factual assumption that the Left Door forcefully crashed into the posterior side of P’s body/head and that P felt immediate pain in her neck as well as dizziness. But I have rejected P’s account of the Accident, and found that only P’s left heel was clipped by the Left Door, and that she did not have head and neck injuries.

359.Dr Lai opined that P would be depressed if she had persistent physical symptoms following the Accident “and they affected her significantly”, but her depressive symptoms would improve if her physical symptoms would improve and were less disabling to her (see paragraph 352(b) above). Dr Lai also recognised that P’s allegation of heightened sensitivity to pain would depend on the underlying physical pathology (see paragraph 352(l) above). Given my findings as to the nature and circumstances of the Accident, the parts of P’s body that were injured as a result of the Accident and P’s overstatement of her symptoms, it was plain that P’s underlying physical pathology were less debilitating than as she alleged, and following Dr Lam’s medical logic they would not have caused significant depressive symptoms. The fact P displayed florid anxiety, depressive and other somatic symptoms fed Dr Yu’s opinion that it was P’s overstatement of her symptoms (eg persistent dizziness and sensation of pain (see paragraph 352(a) above), laying other stressors at the door of D (see paragraph 352(d) above) exaggerating her auditory hallucination (see paragraph 352(g)-(h) above), and having difficulty in doing simple subtraction (see paragraph 352(k) above) that led to persistent frustrations and mental signs despite treatment (see paragraph 352(i) above) rather than any genuine underlying physical disorder. Indeed, P’s limited physical injuries (eg left heel laceration and soft tissue injury to buttocks and low back) had resolved, and her psychiatric symptoms were actually very mild (see paragraph 352(f) and 353 above).

360.I prefer and accept Dr Yu’s opinion that P exaggerated her physical and mental symptoms (see paragraph 354(a)-(b) above). Indeed, records of the consultations at PMH’s WKPC showed even from a therapeutic angle P’s anxiety and depressive symptoms were very mild (see paragraph 354(b) above). Indeed, Dr Lai also accepted that even if P were subjected to temporary stressor (eg the Psy Exam), it would only lead to a “temporary” worsening of her emotional responses (see paragraph 352(i) above). Dr Yu highlighted various examples of P’s overstatement of her symptoms with a view to impress the examiners, and explained why such exaggerations failed to stand up to forensic scrutiny (see paragraphs 354(c)-(i) above) (and, in my view, also to the objective the Surveillance Recordings (see Part IV(h) below)). Dr Lai fairly accepted that there were inconsistencies in P’s account, and that she tried to impress on the Psy Experts of the seriousness of her condition (see paragraph 353 above). It was not surprising that both Psy Experts agreed (and I accept) that P had adjustment disorder with depressed mood but with very mild mental/psychiatric symptoms (see paragraphs 350, 353 and 354(j) above).

(g)  Sick leave

361.According to the Form 9, P was given sick leave from 8 February 2013 to 11 February 2013, 14 February 2013 to 20 January 2014 and 25 January 2014 to 18 January 2016. According to the sick leave schedule prepared by D’s solicitors based on the available sick leave certificates, P had a total of 2,836 days (ie 7.77 years) of sick leave between 8 February 2013 and 16 February 2021 granted by various healthcare providers.

362.Ortho Experts  Dr Lam opined that up to 3 months’ sick leave would be reasonable for P’s left foot and back injury, and that the prolonged sick leave issued by different clinics was likely to be given on compassionate basis or for her neurosurgical symptoms. On the other hand, Dr Yip opined that given the nature of P’s work, reasonable period of sick leave for left heel laceration would be 4 weeks at the very most.

363.Psy Experts  Upon considering P’s psychiatric symptoms, Dr Lai opined that P would appropriately have required sick leave for 3-6 months when she was worse in her psychiatric condition, but Dr Yu did not recommend any sick leave due to mental symptoms as P should be mentally fit to return to her pre-Accident employment.

364.The starting point is Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd[62] in which Le Pichon JA said medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge should not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff. Mr Wong suggested that 4 weeks’ sick leave (as recommended by Dr Yip) would have been sufficient for left heel laceration. However, I have found that P’s physical injuries included soft tissue injury to the buttocks and low back in addition to left heel laceration. I have also accepted that the initial development of mental symptoms (but not the persistence of somatic signs due to frustrations/anxieties from overstatement of symptoms) were precipitated by the Accident, which would not have taken long to case with only minor residual signs but for P’s overstatement, I consider sick leave period of 5 months would have been appropriate.

(h)  Surveillance recording

365.D engaged private investigators to carry out covert surveillance of P in May-July 2014. P was sighted by the private investigators on 16 June and 25 July 2014. P did not dispute she was the person shown in the relevant surveillance recordings on 16 June and 25 July 2014 (“16/6/14 and 15/7/14 Recordings”, ie the Surveillance Recordings). The private investigators also produced a surveillance report dated 29 July 2014. I reiterate my observations in paragraph 323 above in relation to the Surveillance Recordings.

366.16 June 2014  The 16/6/14 Recording showed P walked out from Kwai Shun House, Kwai Fong Estate, Kwai Chung, New Territories at 11:49am to Hing Fong Road. At 11:51am P boarded a minibus for PMH. At 12:10pm P was seen walking into PMH, and at 3:10pm P left PMH to take a minibus for Kwai Fong. At 3:26pm P alighted from the minibus near Kwai Chung Plaza. At 3:33pm P approached a photo shop, and at 3:37pm she left the shop. At 3:39pm she opened a door and at 3:41pm she walked down staircase to Hing Fong Road. At 3:44pm P entered Bank of China branch office, and at 3:51pm P left the bank to walk towards Kwai Fong Estate. At 3:54pm P was seen walking with pushing off and stepping out with left heel/foot. She reached Kwai Shun House at 3:56pm.

367.The 16/6/14 Recording showed P could bend down her head to look into her tote bag as she searched the contents of such bag carried on her shoulder, and she was able to freely turn her head/neck in various directions and to walk in natural gait with easy arm swing, which did not sit well with P’s slow and unsteady gait seen at the Ortho Exam years later in 2017 (see paragraph 325 above). P was also seen bending her head down to view and handle her mobile telephone without outward signs of dizziness, fainting and/or unease.

368.The 16/6/14 Recording also showed P could also stand on one leg and lift the other leg to board the minibus, and “…… [P] 兩次落樓梯, 一次大概三級左右、一次大概八級左右, 呢兩次落樓梯 ……” without sign of physical unease and/or facial grimace and without holding handrail. P claimed at that time “…… [P] 痛囉、暈囉 ……”, but P did not display outward signs of unease and/or dizziness. Given P’s ability to negotiate the stairs, her left heel injury appeared to have been resolved, which was consistent with the opinion of the Ortho Experts. I also note from the relevant footage that P was seen pushing open a glass door twice without hesitation or sign of unease.

369.The 16/4/14 Recording further showed P walked at a normal pace for about 30 minutes from 3:26pm to 3:56pm without pausing, slowing down or sign of unease. P agreed “…… [P] 行路行足三十分鐘都毫無困難 …… 又唔知點, 毫無困難, [P] 痛囉, [P] 有痛囉 ……”, “…… 即係行冇問題, 如果坐同埋瞓, 因為 …… 蘿柚凹咗, 特別辛苦, 由頭咁樣扯到落頸 …… 同埋抽筋、同埋晚晚瞓唔到喇 …… 坐同埋瞓特別辛苦喇, 行冇問題 ……”, ie “…… 無論 [P] 話暈好、痛好, [P] 都行得到三十分鐘 ……” On balance, I am not persuaded by P’s subjective complaints of severe pain and severe dizziness when she was able to and did walk easily for 30 minutes.

370.25 July 2014  At 10:38am P left Kwai Shun House to walk towards Hing Fong Road. At 10:41am P was seen standing at the minibus stop where she was seen pulling her socks. At 10:48am P boarded a minibus for PMH, and at 11:05pm she alighted to walk to the hospital. At 4:30pm, P together with a woman came out of PMH and walked along Lai King Hill Road. At 4:35pm P was seen talking with the woman on the road. They walked towards the direction of Mei Foo, down a staircase towards Lai Chi Kok Park, and reached such park at 4:48pm. At 4:50pm P put her belongings on a bench (with backrest) at the park, and was seen talking with the woman there.

371.The 25/7/14 Recording showed P walked from 4:30pm to 4:50pm with normal and easy gait, and she frequently lifted her hands to touch her head/neck. The footage also showed that at about 10:40am “…… [P] 跑咗大概十秒鐘嘅時間㗎 ……” P claimed to have forgotten whether she was chasing a minibus at the time but she “…… 感受係痛囉 ……”. However, P had no answer when pressed on why she would run if she were in pain. In my view, P’s running appeared quite spontaneous, and if she were in such severe pain as alleged, she would not have been able to or would not have wished to run.

372.There was no dispute that the 25/7/14 Recording showed “…… [P] 就因為兩隻襪就甩咗少少, [P] 就整理下兩隻襪嘅, …… [and with a hand leaning on the minibus post] 開頭 [P] 係用右腳站立, 左腳抬起, 跟住用 [P] 隻左手去整理 [P] 隻左襪, 跟住 [P] 就係左腳單腳站立, 右腳抬起, 跟住用 [P] 隻右手整理 [P] 隻右襪 ……” Given such dexterity despite alleged pain, P was pressed under cross-examination on why she was not able to stand on one leg (perhaps with some hand support) during the Ortho Exam in 2017. All P could say was “…… [P] 唔記得喎, [P] 有好多嘢冇講都講出嚟, 有啲嘢 [P] 冇講過 ……”, and claimed the Ortho Exam “…… 梗係喇, 一個局吖嘛 …… [D] 啲私家醫生話 [P] 痛又假、喊又假、話 [P] 甚麼都係假 ……” P went on to allege under cross-examination that she felt painful at the time, “…… 個痛係無時無刻喇，頭、頸、背、腰, 而家就可以間歇性, 之前係無時無刻呀 …… [P] 痛呀, [P] 痛又唔代表整唔到嘅, [P] 又忍得痛嘅, [P] 自己認為--兩個鐵打師傅都認為 [P] 忍得痛 ……” But P could not explain why years later in 2017, she could not even “忍得痛” to attempt standing on one leg at the Ortho Exam. I find on balance P exaggerated her pain symptoms.

373.The 25/7/14 Recording at 10:45am to 10:47am showed“……. [P] 就攞條綠色嘅毛巾出嚟抹汗嘅 …… 當 [P] 抹 [P] 條頸嘅時候, [P] 條頸上下左右嘅轉動都係好自然嘅 ……” I further note P put her arm behind her back to push the green towel underneath her tee-shirt to wipe her back and to use the green towel to wipe her neck, which demonstrated flexibility of the shoulder and upper limb with effective active range of movement. Whilst P did not deny such actions, P claimed she felt painful on 25 July 2014 when “…… [P] 喺度 …… 喐動 [P] 條頸上下左右嚟抹汗 ……”, “….. 痛呀, 而家兩個手臂著衫都痛呀, 當時係除唔到衫喇, 叫 [P] 先生除, 除都畀佢鬧 ……” However, I note from the range of movement of P’s shoulder and upper limb as shown in the 25/7/14 Recording, P should have no difficulty in putting on and/or removing pullover clothes. P went on to claim “…… 一路抹住, 一路好痛 …… 痛唔代表抹唔到吖嘛, 係咪？……”, and “…… 痛喇, 係, 當時頸又痛、頭又痛, 同埋兩個手臂都痛喇 ……” But P’s actions as shown in the footage were swift and smooth with no sign of unease/discomfort or facial grimace due to pain. P was also seen to fold her left arm across her chest and use her right arm to hold her mobile telephone to her ear.

374.P agreed that the 25/7/14 Recording at 4:40pm “…… 就見到 [P] 落樓梯, …… 總共大概十幾級樓梯嘅 ……” When it was suggested to P under cross-examination that “…… 咁都落得好正常嘅速度, 毫無困難咁嘅 ……”, P explained “…… 因為 [P] 朋友話「妳想返工就落樓梯，妳想返工妳就落樓梯」, 因為 [P] 返工要巡樓, [P] 話畀佢聽, [P] 可以落得五至七層樓 ……” I see from the footage that P and her companion had a comfortable stroll (including down the staircase to the park). P walked easily and chatted with her companion, and although she held onto the handrail, her pace down the staircase was natural and easy without need to stop to rest.

375.The 25/7/14 Recording at 4:48pm showed P “…… 當時係將 [P] 嘅 …… 身體就向前去到接近45度角嘅 ……” and pointed her mobile telephone at a downward angle towards some low plants. When cross-examined on whether she was trying to photograph flowers in the park, P said “…… 唔知呀, [P] 手機好似都影唔到相呀 ……”, and she was in pain so “…… 唔影都痛喇 ……” When P’s attention was drawn to her posture of “…… 特別咁樣彎住條腰 ……”, P said “…… 頭、頸、背、腰都痛, 因為腰間盤突出吖嘛 …… 咁痛唔代表影唔到相吖嘛 ……” I disagree, and on balance do not accept P’s subjective allegations of persistent pain, especially as the treatment doctors and the Ortho Experts agreed that x-rays and MRI of P’s cervical/ thoracic spine only showed minimal degenerative changes. P’s allegations were also exploded by P sitting down on the bench, bending forward to take off her socks and shoes and bending her head down to use her mobile telephone. More importantly, P was seen standing next to her companion who remained seated on the bench. P had her knees against the seat of the bench and her hands on the backrest of the bench looking away from her companion on the bench. But she continued to chat with her companion, and was able to easily turn her head/neck back towards her companion to look at the mobile telephone in her companion’s hands. In my view, P could not have any significant head/neck injury or any dizziness/nausea as she claimed.

376.The 25/7/14 Recording at 4:54pm showed P chatting happily with her companion. She appeared relaxed and had social smiles. P explained under cross-examination that “…… 醫生話多啲搵朋友傾偈, 幫助 [P] 嘅情緒 ……” The 25/7/14 Recording at 4:55pm even showed P dancing with lifting of arms to clap her hands to her right and to her left with social smiles and certainly no facial grimaces. P testified under cross-examination that “…… 喺度跳舞, [P] 唔知喎 …… 可以跳舞咩? ……”, “…… 哦, 可能喺街做運動, [P] 唔知, [P] 唔記得喇, 個朋友好好喇 …… 係 …… 痛喇 …… 因為都--嗰時痛, 無時無刻痛 ……”, and “…… 朋友傾偈就有幫助啲痛症吖嘛, 即係分散啲注意力囉, 所以醫生建議 [P] 多啲搵朋友囉, 唔好成日喺屋企咁囉 ……”, and in her closing submissions contended that “大狀話 [P] 唔可以笑, 係咪工傷以來唔可以笑, 犯法呀?” But in my view, the significance of the footage was not about doctor’s advice, but the fact P appeared to be comfortable, at ease and happy to be out and about with her companion, which was quite unremarkable and quite unlike a person bedevilled by severe anxiety and depressive symptoms as well as (as P alleged) constant pain. Indeed, I agree with Mr Wong’s submissions that P’s lifting of arms to clap hands on her right and on her left, “…… 又扭埋條腰 ……” with relaxed smiles and chatting with her companion appeared incompatible with P suffering constant and severe pain all over the body.

(i)  Pain, suffering and loss of amenities (“PSLA”)

377.P claimed the Accident caused her to suffer serious physical injuries and mental distress. In the RSoD, P claimed her injuries placed her within the “serious disability” category in Lee Ting Lam v Leung Kam Ming,[63]and averred she should be entitled to an award of not less than $600,000 for PSLA.P said under cross-examination that “…… 真係工傷以來飽受抑鬱和痛苦囉, 畀 [D’s] [Metal Door] 壞咗, 鐵一般事實打到我 …… 總之 [P] 精神崩潰、心力交瘁喇，要求公司賠償 ……”, and contended in her closing submissions that “…… [P] 要求 [D] 賠償 [P] …… 永久傷殘喇, 精神上永久傷殘喇, 仲令到 [P] 家庭差啲離婚囉, 感謝主, 冇離到, 對我好多嘢遺憾喇, 造成嘅遺憾 ……”

378.D disagreed, and claimed that in view of the unreliability of P’s evidence, the agreement by the Ortho/Psy Experts that P only suffered (a) minor abrasion at the left heel, (b) soft tissue injury to lower back and (c) adjustment disorder with mild symptoms (but the persistence of mental symptoms was due to frustrations from P’s overstatement), and the opinion of the Ortho/Psy Experts including the assessed minimal/nil whole person impairment from orthopaedic/psychiatric perspectives (see paragraph 357 above), reasonable damages for PSLA ought not exceed $80,000.

379.Having considered the authorities cited by Mr Wong[64] and bearing in mind that each case would turn on its own circumstances, had P succeeded on the question of liability (which I disagree), in P’s circumstances as I have found (including P’s overstatement and exaggeration of her injuries, signs/symptoms and disabilities as evident from the overall unreliability and inconsistencies inherent in her evidence and when viewed against the objective evidence (eg the Surveillance Recordings) and expert medical opinion, which suggested favourable prognosis but for P’s exaggeration and overstatement, I would have awarded $100,000 for PSLA (subject to discount for P’s contributory negligence).

(j)  P’s earnings

380.Pre-Accident earnings There was no dispute that P’s monthly earnings as a security guard employed by D at the time of the Accident were $7,100/month.

381.D disclosed documentary evidence of the monthly earnings of 2 comparable workers 董榮述 and 藍七妹from February 2018 and November 2020, and the average monthly earnings of 董榮述[65] and 藍七妹[66] for the period from January to November 2020 were $9,472.87 and $9,864.44, and the overall average monthly earnings of a security guard employed by D in 2020 would be ($9,472.87 + $9,864.44) ÷ 2 = $9,668.66.

382.Ability to work In the P WStmt, P claimed “…… [P] 因身體多處傷患, 未能再從事意外前的保安公作, [P] 曾經到茶餐廳及雲貴軒米線應徵樓面, 亦曾到便利店應徵, 至今沒有任何消息 ……” But there was no evidence as to when P made such attempts to return to work as restaurant waitress. P also said in her examination-in-chief that “…… [D] 疏忽 …… 導致 [P] 身體創傷, 兩個中醫話 [P] 喪失工作能力、西醫話 [P] 做唔番呢份工 ……”, “ …… 咁就係 [P] 要求 [D] 賠償 [P] 喪失工作能力 …… 因為呢啲 …… [D] 嘅疏忽造成 [P] 身體殘疾, …… 做唔到工, 見工又冇人請, 同 [D] 講過, 四次又畀 [D] 拒絕, [P] 日後生活 [P] 都唔知點, [P] 工傷以來借人哋好多錢, [P] 借錢食飯同埋睇醫生, 搞到精神崩潰、心力交瘁 ……” P also relied on the WCE assessment by PMH’s DOT in November 2014 that concluded her overall work ability did not match with job demand of her pre-Accident work as security guard (see paragraph 271 above).

383.Orthopedically, Dr Lam opined that P’s buttocks / low back and left foot injuries by themselves were not expected to prevent P from resuming her pre-Accident work with her usual capacity as before the Accident, and Dr Yip opined that P was definitely suitable for open employment and she would be able to return to her pre-injury work if she was motivated.

384.Psychiatrically, Dr Lai opined that P’s ability in adaptation to a work environment would likely be similar to her ability as before the Accident. As for her work capacity, Dr Lai opined that from the psychiatric perspective P was mentally fit to return to her pre-Accident job. Her work tolerance and work efficiency were likely to be affected by her psychiatric condition to a very mild degree. The loss of earning capacity based on her psychiatric condition was in the very mild range. On the other hand, Dr Yu opined that P had very mild mental symptoms, would be able to resume the pre-Accident duties, and would not have any impaired work efficiency due to mental symptoms. Dr Yu opined that P had no impairment that would affect her current or future earning capacity due to mental symptoms.

385.In my view, the treatment occupational therapist at PMH’s DOT in carrying out the WCE assessment by PMH’s DOT was non-judgmental over P’s report of her multiple symptoms/conditions and her subjective performance of the tests administered. But in light of my findings as to the circumstances of the Accident, P’s mild physical and mental sequelae from the Accident, and her reasonable recovery from her minor injuries and disabilities, I further find on balance that P would have been physically and mentally able to return to her pre-Accident work after expiry of sick leave for 5 months. This view accorded with the opinion of the Ortho/Psy Experts. I also find that P’s work efficiency was unlikely to be adversely affected but for her overstatement of symptoms and her frustrations and anxieties thereby caused, which in turn perpetuated her mental symptoms.

386.Post-Accident income and monies in bank account  Apart from her return to work on 12-13 February 2013, P did not return to work as security guard for D after the Accident. P claimed under cross-examination that “…… 見工冇人請呀 …… 同 [D] 講復工, 畀番工作又被 [D] 拒絕呀 ……” P claimed that after the Accident, her only sources of income were periodical payments and statutory reimbursement of medical expenses under the ECO paid to her by D and/or the Insurer, and later CSSA granted by the SWD, but “…… 因為 [P] 睇醫生, [P] 每個月出糧出6,000鈫都唔夠每個月睇醫生, 七千至一萬二千幾, [P] …… 齋睇醫生借錢錢都冇晒朋友 ……”

387.P had a bank account with the Bank of China (“Bank Account”), and disclosed her passbook for the Bank Account for the period from 22 April 2009 to 2 November 2015 (“Passbook”). A review of the Passbook showed various entries for cheque deposits, NTR (無存摺轉賑交易) and NCC (無存摺交換票交易) as summarised by Mr Wong as set out in the schedule to this judgment (“Schedule”).

388.There were regular monthly deposits in the Bank Account by “GOOD EXCEL C” between 7 October 2009 to 7 February 2013, which were P’s pre-Accident monthly income paid by D. There were also regular monthly “GOOD EXCEL C” deposits from 7 March 2013 to 6 October 2015, eg deposit on 5 October 2012 in the sum of $6,749.75, which P confirmed were post-Accident monthly periodical payments paid to her by D.

389.There were also monthly “SWD-COMP SOC” deposits in various amounts in the Bank Account.[67] When it was suggested to P under cross-examination that these payments were CSSA payments by the SWD,[68] P said that “二千二百六十[69]—[P] 唔知呀, 總之係--除咗綜援錢, …… 咁其他錢就唔知邊度攞嚟㗎喇, [P] 要問下銀行喇, 唔知呀, 唔記得喇 ……”, “…… [P] 唔知呀 …… 唔清楚 ……”

390.Then there were regular “CDM CHQ DEP” cheque deposits in the Bank Account for the period from 2 May 2013 to 22 October 2014 (see the Schedule), eg a deposit of $4,890.60 on 2 May 2013.

391.At first, P gave evidence under cross-examination that “[P] 唔知喎, …… [P] 唔記得, 唔知咩嘢錢嚟喇 ……”, “…… 真係唔知喎, 因為 …… [P] 都唔知乜嘢 …… 真係唔知喎, 點解有嗰啲錢嘅?”, “…… 真係唔知喎, 點解有咁多錢 …… 因為工傷以來啲記性好差喇, 真係唔記得喇, 等 [P] 諗下先, 點解有嗰啲錢, 都唔知有嗰啲錢 …… 要去查下先知喎, 要銀行查下先知喎, 真係奇怪 ……”, and “…… 真係唔記得, 唔知, [P] 唔知有嗰啲錢, [P]要去銀行查, [P] 就知嗰啲錢喺邊度攞--嚟㗎喇 ……”

392.Later under cross-examination P suggested “…… 好似係…… 買嗰啲係…… 補品食, 回購, [P] 都唔知呀, …… [P] 都唔記得係--唔知係咪回購, [P] 都唔記得喇 …… [P] 都唔知有嗰啲錢 ……” (my emphasis). When this court explained such entries in the Passbook were deposits and not withdrawals, P then said “…… 朋友借喇 ……” But when pressed, P claimed she had no impression, “…… 唔知係咪啲朋友借還是咩嘢原因喇, [P] 都唔記得喇 ……”, but P later confirmed “…… 啲朋友借錢都係收據, 都冇入簿吖, 朋友借錢 ……”, “…… [P] 知係冇入簿嘅 ……”

393.P’s attention was then drawn to (a) the “COM CHQ DEP” deposit of $5,120 on 21 June 2013, (b) her bank balance before such depsit being $886 only, and (b) her subsequent withdrawals via ATM 2 days later on 23 June 2013 ($500), a further 2 days later on 25 June 2013 ($3,000) and then another 5 days later on 30 June 2013 ($2,000). P agreed under cross-examination (i) “…… [P] 去櫃員機撳錢, …… [P] 個戶口有錢先至撳得錢出嚟㗎 ……”, (ii) “…… 如果唔係入咗呢張5,120鈫嘅支票, [P] 就之後嗰幾日撳唔到錢出嚟㗎 ……”, and (iii) “…… 係呀, …… 知道有錢就去撳錢囉, 如果唔知道有錢, 點去撳呀 ……” Thus, P admitted “…… 當時 …… 係知道係 …… [deposit of $5,120] 咩嘢錢呀 …… 呢啲係合法錢, 唔係唔合法嘅錢 …… [P] 都唔記得咩嘢錢㗎喇 ……”, “…… 你畀 [P] …… 再諗諗, 頭先 [P] 出面冷靜嘅時候諗到 …… 呢啲係 [Insurer] 畀[P] 嘅錢, 睇醫生嘅錢 …… 肯定呀, …… [LD] 話「一日睇醫生可以最多200鈫, 多咗就冇得claim㗎喇」, [P] 次次睇醫生, 睇鐵打, 270鈫至390鈫, …… 其他係 [P] 補出嚟嘅, 呢啲係睇醫生嘅錢 …… [P] 去睇醫生, [Insurer] 畀 [P] 嘅錢 …… 補番一樣 …… [P] 記得喇 ……” (my emphasis) P claimed “…… [P] 就係銀行出糧簿同埋--同埋 [D] 畀嘅錢, 其他 [P] 記得係冇㗎喇。你話嗰啲錢喺邊度攞嚟, [P] 要問銀行, [P] 就明白嗰啲錢喺邊度嚟喇, 銀行就知道, [P] 就唔知道 ……”

394.There were “CDM CHQ DEP” cheque deposits of $200 and $5,800 on 12 September 2014. P said under cross-examination that “…… [P] 唔記得, [P] 知道 [P] 係綜援錢，同埋 [D] 出糧錢，其他--呢啲支票錢 [P] 就唔知喇, 唔知…… 真係唔知”. For the further “CDM CHQ DEP” cheque deposit in the sum of $3,890 on 22 October 1014, P said “… [P]唔知喎，[P] 除咗係綜援錢, 其他 [P] 唔--啲支票啲錢喺邊度攞嚟, [P]就唔知喇 ……”

395.On 30 July 2014, there were 4 deposits in the Bank Account in the sums of $6,000, $4,205 and $2,290 and $1,655. P testified under cross-examination that “真係唔知喎, 對唔住, [P] 要--真係要去銀行查一查, [P]都唔知點解有嗰啲錢嘅, [P] 都唔知呀, 點解有……”On 28 August 2014, there was another deposit of $6,000. P said “除咗綜援嘅錢, 應—[P] 諗一兩個, 都冇咁多 …… [P] 做咩嘢有…… 咁多錢, 應該係綜援錢嚟喇…… [P] 要去銀行check check點解--嗰啲錢喺邊度嚟喇, 就--咁 [P] 就知道喇 ……” (my emphasis). P said some friends had lent her money, but “…… [P] 知係冇入簿嘅 ……”

396.On P’s suggestion that the “CDM CHQ DEP” cheque deposits should be reimbursement of her medical expenses at $200/day by D’s Insurer, she was cross-examined on why D’s Insurer paid cash in the sums of $6,000, $4,205, $2290 and $1,655 to P all on 30 July 2014. P testified that “……呢四筆, [P] 唔知咩嘢--睇下先, [P] 除咗 [Insurer] 畀嘅錢, [P] 睇醫生, [P] 冇其他錢來㗎喇 …… 除 [Insurer] 錢, [P] 冇其他收入喇 ……” P said “…… [P] 都諗唔到 …… 同朋友借錢, 都好少 …… 入銀行簿 …… 好少--好少經銀行 ……”, “…… 總之 [LD] 話一日200鈫睇醫生, 超過就冇得claim, 有單據就有得claim、冇單據就冇得claim咁樣囉 ……”

397.As regards P’s allegation that the deposits identified in the schedule were reimbursement of medical expenses by D’s Insurer, P at first said “…… [P] 單據 …… 所有啲嘢都係交畀 [D] 喇 ……” “…… [P] 唔知交咗畀 [D], 又唔知交畀律師喇, 唔記得喇, 總之 [P] 就記得 [P] 每日睇醫生超過200鈫喇 ……”, “…… [Insurer] 點解要畀 [P] 呢, 係因為 [P] 工傷, …… [P] 有權根據法例 [ie ECO], …… 睇醫生嘅話, 每日最多有200鈫嘅醫療費可以claim番 ……”, “…… [LD] 話睇醫生每日claim 200鈫囉 ……” , “…… 所以 [P] 本簿仔睇到有支票入落 [P] 個戶口度, …… 嗰啲就 …… [Insurer] 畀 [P] 醫療費呀 ……”, “…… 其實應該負晒, [LD] 又要cut人200鈫, [P] 覺得唔係幾公平, [P] 睇醫生都唔只200鈫喇 ……”

398.Under cross-examination, P disagreed the deposits identified in the Schedule were earnings from P’s post-Accident work when “…… [P] 工傷以來冇出面做過嘢, [P] 都係見工見--冇人請 ……” P in her closing submissions contended she had no money apart from periodical payments paid by D, reimbursement of medical expenses at $200/day by D’s Insurer, her disability allowance and “…… 仲有一次 [P] 買嗰啲 …… 營養品回購嘅錢 ……”, and claimed “…… [Mr Wong] 屈 [P], 砌 [P] 生豬肉, 唔係[Insurer] 畀 [P] 嘅錢, 心照喇 ……”, “…… [P] 要 …… 去銀行check番 …… 呢啲錢係咪 [D’s Insurer] 畀 [P]，喺度玩緊嘢 ……” Nevertheless, P did not so check with the bank before the trial.

399.I agree with Mr Wong that the deposits in the Bank Account identified in the Schedule raised suspicion. P time and again in her evidence claimed she did not know what such deposits were for, but eventually said that upon reflection they should be statutorily prescribed reimbursement of her medical expenses under the ECO by D’s Insurer. But P did not explain why she would suddenly remember the aforesaid deposits were reimbursement of her medical expenses. But if the deposits were reimbursement of medical expenses, I note with interest that ever since the SWD started to make CSSA payments on 19 December 2014, there were no further “CDM CHQ DEP” cheque deposits into the Bank Account. P also did not explain why there was no such reimbursement after 22 October 2014 when P continued to incur medical expenses.[70] Also P had no or no satisfactory explanation why D’s Insurer would have reimbursed her medical expenses by way of 4 separate cash deposits all on the same day on 30 July 2014 when other reimbursements were by cheque.

400.Even more interesting was the fact that the deposits identified in the Schedule did not sit well with P’s explanations that they were statutorily prescribed reimbursement of P’s medical expenses by D’s Insurer. Mr Wong argued that the total amount of those deposits in the sum of $72,985, “…… 係超過 [Insurer] 根據 [ECO] 要畀 [P] 嘅醫藥費嘅 ……” According to the schedule of medical expenses based on invoices/receipts discovered and disclosed by P,[71] P’s incurred medical expenses from 8 February 2013 to end of 2014 (the last item dated 28 March 2014) were in the total sum of $53,386, and at $200/day over the same period the amount to be reimbursed should have been $43,000, so it was said D’s Insurer would not have paid P a total sum of $72,985 as reimbursement of her medical expenses. But P sidestepped this concern by merely saying “…… 對 [P] 嚟講就少過囉, 因為 [P] 睇醫生都唔只呢條數喇, 你畀咁少 [P], [P] 睇醫生超過呢條數喇 ……”

401.Whilst P denied the deposits identified in the Schedule were her post-Accident earnings, Mr Wong urged me to draw inference from the above analysis and P’s failure to satisfactionly explain that the more than 20 cheque/cash deposits identified in the Schedule that ceased just before SWD started to make CSSA payments to P were P’s earnings from her post-Accident work which she failed to disclose, especially as P herself excluded the possibility of such deposits being loans by friends or other payments to P, which inference would adversely affect P’s overall credibility on the questions of both liability and quantum (including her claim for loss of earnings and loss of earning capacity).

402.I agree that P had no satisfactory explanation for the deposits identified in the Schedule, and her belated explanation that they were reimbursement of medical expenses by the Insurer was unconvincing. But whilst I accept that such deposits were money available to P (ie sometimes about a few thousand dollars a month) from an unknown source during the post-Accident period in which she claimed she was financially stressed, there was insufficient material for me to infer on the balance of probabilities that they were actually P’s earnings from post-Accident work. However, P’s poor explanations added to the overall unreliability of her evidence.

(k)  Pre-trial loss of earnings

403.In her closing submissions, P claimed that but for the Accident she would have continued to work as a security guard for D or elsewhere in the same industry, but because of the Accident “……精神科都話 [P] 永久創--喪失工作能力, 兩個中醫話 [P] 喪失咗工作能力, 政府醫生話 [P] 做唔番呢份工囉, 仲有 [P] 要求 [D] 賠償 [P] 喪失工作 ……”

404.On the other hand, in the Answer to the RSoD, D generously pleaded that P’s pre-trial loss of earnings even on her best case (which D denied) would not have exceeded $7,100 x 9 months x 1.05 = $67,095. But in light of the evidence that came to light at trial, Mr Wong submitted that on the basis of an appropriate sick leave period of 4 weeks (or 1 month), P’s pre-trial loss of earnings should be $7,100 x 1 month x 1.05 = $7,455.

405.But given my findings on P’s injuries, recovery and disabilities as well as the appropriate period of sick leave of 5 months after which time she should be able to return to her pre-Accident work, there was no need for me to consider any notional increase of earnings over the post-Accident years. Thus, had P been liable to D for the Accident (which I disagree), P’s pre-trial loss of earnings (inclusive of loss of MPF contribution) would have been $7,100 x 5 months x 1.05 = $37,275 (subject to discount for P’s contributory negligence).

(l)  Post-trial loss of earnings

406.In the P Wstmt, P claimed that “……. 若沒有 [Accident], [P] 會一直從事保安員工作直至最少70歲。以 [P] 所知，保安員的每月薪金已增加至不少於港幣9,000元。所以，[P] 每月最少損失港幣9,000元的收入”. On the other hand, D denied that P lost all her working capacity, and claimed that the treatment and expert medical evidence clearly showed P was fit to return to her pre-Accident work as a security guard or any work of a different nature with similar earnings, and that she had a duty to mitigate loss. In light of my findings that P’s reasonable sick leave would have been 5 months, and that she would be able to return to her pre-Accident work after expiry of such period, there would have been no post-trial future loss of earnings even if she had succeeded on the issue of liability (which I disagree).

(m)  Loss of earning capacity

407.P averred (but D denied) that by reason of her disabilities arising from the Accident, she suffered and would continue to suffer handicap in the labour market, ie (a) her choice of work was unduly restricted in that she could no longer engage in work requiring heavy physical strength, (b) her chance for promotion was unduly limited, and (c) she was likely to be compelled to have early retirement because of her injuries. P claimed (but D denied) an award of not less than $7,100/month x 12 months = $85,200 for loss of earning capacity.

408.I have found that P suffered from (a) contusion/abrasion at the left heel, (b) soft tissue injury to buttocks and lower back, and (c) adjustment disorder. But P recovered from the physical/orthopaedic injuries in (a)-(b) above, and only had very mild psychiatric symptoms in (c) above. I have further found that she would have been capable of returning to her pre-Accident work after sick leave of 5 months. Even P’s own Psy Expert Dr Lai agreed that P’s ability in adaption to a work environment would likely be similar to her ability before the Accident (see paragraph 357 above). On balance, I am not persuaded P would suffer handicap in the labour market caused by the Accident as she alleged. So even if D were liable to P for the Accident (which I disagree), I am not convinced P would be entitled to any award for loss of earning capacity.

(n)  Further treatment

409.In the Ortho 1^st Jt Report, Dr Lam opined that P’s orthopaedic condition due to the Accident had achieved maximal medical improvement, so further treatment was unlikely to give significant improvement and therefore was not recommended. Dr Yip opined that further rehabilitation would not be medically beneficial as P had reached maximal medical improvement with no indication for surgery. Dr Yip claimed “[further] abuse of the public healthcare system should not be encouraged”. In short, further orthopaedic treatment was not required.

410.According to the Psy Jt Report, Dr Lai thought P required another 6-9 months of further psychiatric treatment (in the public psychiatric clinic every 4-6 weeks) or psychiatric treatment could be terminated within 6 months after conclusion of the present litigation, whichever would be later. Dr Lai opined that further psychiatric treatment was required as the present litigation was still on-going and it would take time for the psychiatric medication to be tailed off (as P was on high dosage of medicines), and the goals of the treatment were to help P maintain the progress she had made, reduce further the degree of psychiatric symptoms, and return to an optimal level of functioning. Dr Lai was of the view that P could continue further treatment at the public psychiatric clinic at an average frequency of once in 4-6 weeks (ie 4-6 sessions), and the attending psychiatrist could provide necessary psychological intervention.

411.On the other hand, Dr Yu opined that P would not require and/or benefit from any further psychological or psychiatric treatments, and she should stop attending psychiatric clinic. Dr Yu explained that whilst psychotherapy was in general the mainstay treatment for adjustment disorder, he opined that in P’s case she should be told the physical symptoms were out of proportion to the physical findings, and that 1-2 hourly sessions would suffice to address her anxieties and frustrations, but she would not be motivated as long as she exaggerated the physical symptoms. Further, although in general pharmacotherapy (medications), ie antidepressants and anxiolytics, would augment psychotherapy, Dr Yu opined that in P’s case her symptoms were very mild, and medications were not needed.

412.Given my findings that P had very mild psychiatric symptoms and her persistent mental symptoms were due to frustrations and anxieties from her own overstatement rather than caused by the Accident, I find it would not be reasonable or necessary to have any future course of psychiatric treatment except to have 3-4 sessions with the public sector psychiatrist to address her frustrations and anxieties and to tail off her psychiatric medication. But no award should be allowed for such future treatment since P’s frustrations and anxieties were caused by P’s own overstatement of symptoms and not by the Accident.

(o)  Special damages

413.Medical expenses P claimed medical expenses in the sum of $100,000. According to the schedule of P’s medical expenses based on invoices/receipts provided by P,[72] P’s medical expenses for the period from 8 February 2013 to 22 March 2019 were $61,412.00 and RMB13,817.43. The P WStmt claimed that “…… 至今, [P] 已支付了不少於港幣200,000元的醫療費用及購買補品 …… [P] 已遺失部份單據。由於 [P] 有經濟困難, [P] 向朋友借貸支付大部份的醫療費用 …… [P] 現在仍然接受多間醫院及部門的治療，[P]繼續需要支付醫療費用及交通費 ……”

414.In the Answer, D put P to strict proof on whether all medical treatment sought was necessary and reasonable, and if liability against D were established (which D disagreed), D would only have agreed to a sum of $3,000 for treatment sought at government hospital. Mr Wong in his written opening submissions contended that “…… 就醫療費用 …… 而言, [P] 申索的$100,000明顯過高。[D] 重申, [P] 的傷勢只是非常輕微的左腳跟裂傷及臀部軟組織受傷及非常輕度的適應障礙症。多年來, [P] 向醫生所求診的全身痛症都是雙方專家無法以醫學角度解釋及/或與本意外無關, 當中大部分是由於 [P] 裝病而引致的醫療費。單就 [P] 的輕微傷患而言, 她的醫療費用不應多於$8,000 ……”

415.In light of my findings as to P’s limited injuries and disabilities, and her overstatement of symptoms that led to frustrations and anxieties that perpetuated her somatic signs (which could not be laid at D’s door), I agree with Mr Wong that P’s claim of about $100,000 for incurred medical expenses was excessive. Had D been liable to P (which I disagree), I would have awarded a sum of $10,000 under this head of claim (subject to discount for P’s contributory negligence).

416.Tonic food expenses  P claimed (and D denied P’s claim) for tonic food expenses in the sum of $100,000. According to the schedule of P’s tonic food expenses based on invoices/receipts provided by P,[73] P’s such expenses for the period from 15 October 2013 to 12 September 2019 were $171,785.70 and RMB14,826.43. The P WStmt claimed that “…… 至今, [P] 已支付了不少於港幣200,000元的醫療費用及購買補品 …… [P] 已遺失部份單據……” In the Answer, D averred that subject to production of receipts, it would agree to $1,000 for this head of claim.

417.P was cross-examined on why “…… [P] 就去啲蔘茸海味舖或者啲藥房就去買花膠、黨參、鹿茸 ……” being expensive tonic food,[74] P explained that “…… 中醫話食啲補嘢囉, 朋友就帶 [P] 去買囉, 佢話「妳食咁多藥好傷, 食啲補嘢, …… 個頭冇咁暈囉」……”, “…… [P] 食啲補品, 個頭冇咁暈呀, …… 同埋 …… 瞓到少少, 如果--瞓唔覺呀 ……” P claimed that in 2016 “…… 好似賠咗償, 賠償有錢先至買囉, 唔賠償邊有咁多錢買, 一係朋友借囉, 都唔係好記得喇 ……” Further, on 1 August 2018, P spent $54,800 on the purchase of a piece of equipment from Cosmo Health HK Ltd. P explained “…… 嗰部機係治痛, 叫Cosmo, 止痛機㗎喇 ……” She disagreed “…… [P] 嘅真實嘅傷勢係不需要 …… 買一部咁昂貴嘅機 ……”, and claimed “…… 因為自己身體 …… 痛症 …… 惟有自己先清楚 ……”

418.In my view, while P’s claimed sum was receipted, the receipts were from October 2013, and there was no documentary evidence as to what tonic food was purchased and/or consumed in the initial 8 months after the Accident. Given my findings that the Accident only resulted in minor physical injuries of left heel abrasion and soft tissue injury to the buttocks and low back (which soon resolved and reached maximum medical improvement), and that P only had adjustment disorder with very mild psychiatric symptoms from the Accident (but the persistence of mental/somatic signs from P’s frustrations and anxieties were a result of her overstatement of symptoms, which could not be attributed to the Accident), only a reasonable sum would be awarded for tonic food in the initial few months after the Accident when there was no evidence (apart from P’s hearsay allegations) as to the advisability or suitability of tonic food from any doctor or Chinese medical practitioner or person with medical knowledge. I am not persuaded that I should allow expensive tonic food expenses for an extended period up to 2019 in view of P’s limited injuries and disabilities as I have found. Following Yu Ki v Chin Kit Lam[75] and judging from the nature of P’s injuries and disabilities as I have found, had P succeeded on the question of liability, I would have allowed a global sum of $5,000 for her claim under this head (subject to discount for her contributory negligence).

419.Travelling expenses  P claimed (and D denied P’s claim) for travelling expenses in the sum of $5,000. According to the schedule of P’s local taxi expenses and train fares to Guangzhou and within Guangzhou and Shenzhen in Mainland China based on receipts provided by P,[76] P’s travelling expenses for the period from 9 February 2013 to 27 August 2018 were $628.40 and RMB1,009. The P WStmt claimed that “…… 至今, [P]已支付了 …… 不少於5,000元的交通費, [P] 已遺失部份單據。…… [P] 現在仍然接受多間醫院及部門的治療, [P] 繼續需要支付 …… 交通費 ……” In the Answer, D averred that the Ortho/Psy Experts agreed P was capable of maintaining her self-care and daily activities, including making her way about by way of public transport, so subject to production of receipts D would agree to $1,000 under this head of claim.

420.In light of my findings in relation P’s injuries and disabilities, her required sick leave and her limited medical expenses for medical attention attributable to the Accident, and bearing in mind (a) P’s ability to travel on minibus, and (b) the Shenzhen MRI which only revealed minimal degenerative changes to the spine not caused by the Accident, I find the claim for travelling expenses in the sum of $5,000 excessive. Had P succeeded on the question of liability, I would have awarded $1,500 under this head of claim (subject to discount for P’s contributory negligence).

(p)  Summary

421.In light of the above analysis, had P succeeded on the question of liability, she would have been awarded damages for $100,000 (PSLA), $37,275 (pre-trial loss of earnings), $10,000 (medical expenses), $5,000 (tonic food expenses) and $1,500 (travelling expenses) (subject to discount for P’s contributory negligence). Since P had to give credit for a sum of $405,770.73 being EC that P received under DCEC863/2014, which sum well exceeded the notional damages that would have been allowed had P succeeded on liability, P’s claim would not have availed her and she would not have been entitled to any damages.

V.  CONCLUSION

422.In the circumstances, P’s claim is dismissed.

423.There is no reason why costs should not event, and P should therefore pay D’s costs of the action (including all costs reserved if any) to be taxed if not agreed.

424.But Mr Wong submitted that P should pay D’s costs on indemnity basis. He argued that P was a malingerer, who raised the present dishonest claim for damages against D and was unable to prove the circumstances of the Accident and her resultant injuries. It was said that P had exaggerated the quantum of her claim for damages, which (had she succeeded on the question of liability) would have less than the EC she had received. Mr Wong pointed to the inherent inconsistencies of P’s evidence, and her allegations as to the circumstances of the Accident and her injuries/conditions that were contradicted the CCTV Recording and the Surveillance Recordings, and that did not sit together with the opinion of the Ortho/Psy Experts who questioned or expressed caution as to her veracity. Mr Wong in his oral opening submissions contended that an award of costs in favour of D on indemnity basis was justified because “…… [P] 以誇大及不誠實的方式在本案申索。不論在意外過程或她的傷勢方面, 她都不停地虛構情節及誇大事實, 其訴訟行為實屬濫用司法程序, 並且浪費了法庭的實貴時間及 [D] 的金錢。如 [P] 如實申索, 此案極大機會不會來到審訊這一天 ……”

425.There is no dispute that the court had a wide discretion on costs. Order 62 rule 5(1) of the RHC provides that the court in exercising its discretion on costs shall, to such extent if any, as may be appropriate in the circumstances, take into account inter alia the underlying objectives set out in Order 1A rule 1 of the RHC and the conduct of all the parties. Order 62 rule 5(2) of the RHC provides that the conduct of the parties includes (a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, (b) the manner in which a party has pursued or defended his case or a particular allegation or issue, (c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim, and (d) conduct before, as well as during, the proceedings.

426.I reiterate the general principles in granting costs on indemnity basis, which I have summarised in Wong Shu Keung v Li Sing Ming[77] and in Heung Wing Yan v Hangway Housing Management Limited & ors,[78] and I adopt such principles without repeating them here. There is an infinite variety of situations which can come before the courts and which the courts may consider appropriate to make an order for indemnity costs. In general, the court awarding costs in its discretion on indemnity basis should be satisfied that there is something in the conduct of the action or in the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs. It is not always necessary to show deliberate misconduct although a dishonest and fraudulent claimant should normally be penalised by appropriate cost order;[79] in some cases unreasonable conduct to a high degree would suffice. Whilst bringing a hopeless, incompetent and unsalvageable claim before the court is plainly a circumstance that takes the conduct of legal proceedings so out of the norm as to justify an award of costs on indemnity basis, the pursuit of speculative, weak, opportunistic or thin claims may also justify an order for indemnity costs in appropriate cases.

427.In my view, an exaggerated claim increases costs incurred or wasted by the parties, and has a distorting effect on the proceedings, eg excessive exaggeration and overstatement beyond what is expected of normal hostile litigation prevents realistic assessment of the merits of the case, useful settlement discussions and/or successful mediation. Even without involving dishonest concoction, such excessively exaggerated claim may indicate conduct meriting criticism.[80]

428.Here, I do not think P brought a dishonest claim. After all, the Accident did happen, albeit not in the way she alleged. In my view, P brought an exaggerated claim, partly resulting from her preoccupation with her grievance over the Accident, her embellishment over the circumstances of her injury, and her overstatement of her symptoms that led to frustrations and anxieties that were out of proportion to some genuine but minor underlying physical disorder and mild adjustment disorder. But P had access to legal advice and to the CCTV Recording, the Surveillance Recordings and the Ortho/Psy Jt Reports. These matters gave rise to a forceful argument that the present claim should not have been started or pursued, especially given the EC that P had received. As a result of P’s behaviour and insistence of exaggerated contentions that were inherently unreliable and that flied in face of available objective evidence, D was needlessly put to considerable trouble and expense to deal with the present claim and the way it was presented. The present claim bore the hallmarks of an atypical claim in which P’s conduct and behaviour were not reasonable conduct of proceedings or behaviour expected in normal hostile litigation. Her claim on liability flied against the CCTV Recording and the objective medical records in the aftermath of the Accident. Her claim on quantum was grossly inflated, opportunistic, unjustified and thin, and unreconcillable with the expert medical opinion and contemporaneous covert surveillance recordings. In my view, such conduct was sufficiently reprehensible to justify an order for indemnity costs.

429.In the circumstances, I grant a cost order nisi that P shall pay D’s costs of and occasioned by the action (including all costs reserved if any) on indemnity basis to be taxed if not agreed, and that P’s own costs up to 30 January 2019 be taxed in accordance with Legal Aid Regulations. However, although I am sure that Mr Ho must be of assistance to Mr Wong in the conduct of D’s case at trial, I am not persuaded that this case merits certificate for two counsel.

The plaintiff, acting in person and present

Mr Simon S Wong and Mr Jacky Ho instructed by Winnie Leung & Co, for the defendant

Schedule

原告人中國銀行存摺紀錄 [1/G/244-260]