Fong Yee Yan v. Secretary for Justice
Read the full judgment text of HCPI 1370/2016 on BabelCite. This High Court CFI judgment was delivered on 24 March 2023.
1. In 2013, the plaintiff (“ P ”) was employed by the Hong Kong Police Force (“ HKPF ”) as a probationary inspector of police (ie inspector of police on probationary terms, “ PI ”). Her UI (unique identification) number was WPI [1] 16924.
Cited by 1 case · Cites 18 cases
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HCPI 1370/2016 [2023] HKCFI 844 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1370 OF 2016 ________________________
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____________________ J U D G M E N T ____________________
I. BACKGROUND AND PARTIES’ CASES 1.In 2013, the plaintiff (“P”) was employed by the Hong Kong Police Force (“HKPF”) as a probationary inspector of police (ie inspector of police on probationary terms, “PI”). Her UI (unique identification) number was WPI[1] 16924. 2.P claimed that in 2013 (a) HKPF assigned her to undergo a 36 weeks’ residential foundation training course (“Course”) at the Hong Kong Police College[2] (a police training school to train and educate police officers, “College”) at 18 Ocean Park Road, Wong Chuk Hang, Hong Kong (“Premises”), (b) Chief Inspector (“CIP”) Chau Kwok Kuen (“Chau”) and Inspector (“IP”) Kwan Lam Victor (“Kwan”), who were government servants and police officers, oversaw/supervised the police training at the Premises, and (c) Chau was in charge of her PI training. 3.There was no dispute that at the material time (a) Chau was the course instructor (“CI”) and Kwan was the assistant CI of squad 566 of the 7 October 2013 intake of PIs (including P) at the College (“PI566”), (b) Kwan was also the drill and musketry instructor (“DMI”) of PI566 and squads 567 and 568 of the 7 October 2013 intake of PIs at the College (“PI567”and “PI568”). For convenience, PI566, PI567 and PI568 are collectively referred to as “PI566-568” in this Judgment. 4.There was also no dispute that:
5.P claimed (but the defendant (“D”) did not admit) (a) HKPF qua employer also owed P non-delegable duty and/or duty implied under her contract of employment with HKPF,[3] and (b) the standard of care required of HKPF was higher than the common duty of care or the duty owed under the OLO since the Premises were used as a police training school. 6.P claimed that (a) as part of the Course at the College it was her duty to go from the Women Barrack Block[4] (“WBB”) to Block J (“Blk J”) at the Premises, and to do so she had to descend an outdoor staircase (“Staircase”), and (b) at/about 6:05am to 6:25am on 20 December 2013 P was required to go from WBB to Blk J, but (c) when descending the Staircase she “stepped on an unknown object, the edge of the Stairs or the void”, and (d) as a result “she lost her balance and fell”, thereby injuring her left knee (“Accident”). D denied P’s claim, but agreed on that day she was required to arrive at the Parade Ground of the Premises (“Parade Ground”) before/about 6:30am for morning roll call (which was a daily event in the course of PI training). 7.Whilst there was no dispute that at the time of the Accident:
P claimed (but D denied or did not admit) the following:
In his oral opening submissions, Mr Sakhrani, counsel for P, clarified that P’s essential complaints about the Accident were set out in (c)-(f) above, and (g) above was put forward as a relevant background circumstance rather than as any specific allegation of default on D’s part. 8.P further claimed (and D denied or did not admit) that:
In his oral opening submissions, Mr Sakhrani submitted that (1) insofar as P claimed Kwan did not advise her to seek legal advice, this was a background factor relied upon for the purpose for quantum (ie to justify her claim for exemplary damages), and (2) given Tan’s seniority and his alleged awareness that P was on sick leave and under medical treatment, he had a duty to explore, sound out and discuss with P and to provide advice and guidance to P on inter alia the matters in footnote 9 above before he accepted P’s resignation for “personal reasons” rather than “health reasons”. 9.On the other hand, D relied on the matters in footnote 10 above, denied P resigned under duress and undue influence as alleged, and went on to aver that:
10.P claimed the Accident and the events thereafter as well as the personal injuries, pain/suffering and loss/damage she sustained were caused by HKPF’s (a) negligence, breach of implied terms of her contract of employment and/or breach of the common duty of care,[13] and (b) breach of statutory duties.[14] P claimed HKPF was vicariously liable for the negligence and wrongful acts/omissions of Chau, Kwan and Tan set out in footnotes 13-14 above. 11.On the other hand, D averred that:
12.Further and/or alternatively, D averred the Accident was solely and wholly caused and/or contributed to by (a) P’s pre-existing condition and/or (b) her negligence, breach of employment contract and/ or breach of statutory duty.[16] 13.P disagreed with D’s averments in paragraphs 11-12 above, and claimed that the alleged risk assessment, inspections and training were not done properly, and that had they been done properly the measures particularised in footnote 13(b)-(e) above would have been implemented before the Accident and the matters in paragraph 8(b)-(e) above would not have happened. P repeated paragraphs 5(a) and 8(a)-(e) above, and averred that on 3 January 2014 HKPF, Chau, Kwan and Tan failed to comply with HQO1/14 (but see footnote 15 above), particularly as they failed to offer and discuss with P, properly or at all, any “reasonable accommodation” to be provided or continued to be provided to her on temporary basis. 14.P also relied on the doctrine of res ipsa loquitur, but D claimed the circumstances of the Accident did not justify such reliance. 15.P sought compensatory damages for personal injuries, loss and damage as a result of the Accident. D put P to strict proof, and averred (a) P failed to provide her MCs to D until (i) 13 November 2014 (for sick leave from 27 December 2013 to 24 November 2014) and (ii) 7 January 2015 (for sick leave from 24 November 2014 to 18 February 2015), but (b) upon receipt of such MCs D made periodical payments to P in/about March 2015.[17] 16.P also sought (but D denied) exemplary damages for the following reasons:
17.P would give credit to D for employees’ compensation (“EC”) in the total sum of $1,336,108.56 she received under the Employees’ Compensation Ordinance Cap 282 (“ECO”). II. PROCEDURAL HISTORY 18.On 13 December 2016, P commenced the present action against D to claim compensatory damages for personal injuries, loss and damage as a result of the Accident. P’s claim for damages and exemplary damages by reason of the alleged post-Accident conduct of HKPF, Chau, Kwan and Tan did not appear in the general indorsement on the Writ of Summons, and was first pleaded in the Statement of Claim that P filed more than a year later on 30 January 2018 (“SoC”). On 4 April 2018, D filed his Defence (“Defence”). On 10 April 2018, P filed her Reply (“Reply”). 19.On 22 October and 28 November 2018, P and D respectively filed the Amended Revised Statement of Damages (“ARSoD”) and the Answer thereto (“Answer”). It is useful to set out below a snapshot of P’s pleas in the ARSoD in relation to her initial medical treatment after the Accident:
In the Answer, D (subject to the issue of liability) admitted (a)-(c) and (e)-(f) above to the extent as recorded in the medical records/reports and the MCs of the relevant hospitals/clinics, but D disagreed the relevance of (d) above to the issue of quantum, and did not admit (g) above. 20.In summary, P by the ARSoD claimed damages and exemplary damages in the sum of $23,842,384.66, and D by the Answer denied P’s claim on quantum and put P to strict proof thereof. By the time of further closing submissions in July 2021, P’s claim for damages (excluding interest) on best case scenario was reduced to $15,367,137.40, and D still maintained P was not entitled to damages at all. 21.Both issues of liability and quantum about the Accident and the post-Accident events generated some complexity as demonstrated by the combined volume of written submissions by Mr Sakhrani and Ms Chao, counsel for D, that exceeded 160 pages, which spoke tellingly of the diligence of counsel and the intensity of disputes. 22.For factual witness evidence at trial, P herself gave evidence. D called Kwan, Chau, Woman Sergeant (“WSgt”) Choy Yuen Ling (“Choy”) and SP Chan Pak Lam (“Chan”) to give evidence. D did not call Tan to give evidence. 23.P’s and D’s orthopaedic experts were respectively Dr Johnson Lam (“Dr Lam”) and Dr Wong See Hoi (“Dr Wong”) (collectively, “Ortho Experts”). P’s and D’s psychiatric experts were respectively Dr Benjamin Lai (“Dr Lai”) and Dr Gabriel Hung (“Dr Hung”) (collectively, “Psy Experts”). The Ortho and Psy Experts are recollectively referred to as the “Experts” in this Judgment. The Ortho Experts jointly examined P on 19 October 2017 (“Ortho Exam”), and the Psy Experts jointly examined P on 31 May 2018 (“Psy Exam”). 24.By the order of Master Roy Yu dated 14 November 2018, the Ortho Experts’ joint expert report dated 9 January 2018 (“Ortho 1st Jt Report”) and the Psy Experts’ joint expert report dated 21 July 2018 (“Psy Jt Report”) were to be adduced at trial without calling the makers. On 25 March 2019, Master Roy Yu partially varied such order by directing the Ortho Experts to give oral evidence at trial. Pursuant to my order dated 6 August 2019, the Ortho Experts compiled their supplemental joint orthopaedic expert report on 30 December 2019 (“Ortho 2nd Jt Report”). They eventually gave oral evidence at the trial. 25.By my order dated 21 August 2019, P and D were directed to prepare/agree schedules of sick leave, post-Accident actual/notional earnings and special damages from information extracted from the disclosed documents. By my order dated 7 August 2020, I granted case management directions inter alia to facilitate the parties to prepare/agree schedules of P’s actual earnings as a PI, the EC she received, her post-Accident earnings before and after she worked as an assistant labour officer II (“ALOII”) of the Labour Department (“LD”) and the notional earnings of an IP, and to urge the parties to agree on other quantum- related information for the purpose of the trial. 26.On the last day of the trial, I further directed the parties to jointly prepare/agree schedules of quantum calculations on the basis of 4 different potential outcome scenarios. The parties were unable to agree on (a) the extent of liability under the 4 different potential outcome scenarios and/or (b) the method for calculating the quantum of damages thereunder. On 22 March 2021, the parties lodged inter alia (i) P’s “detailed calculations of [P’s] loss of earnings under various scenarios” together with “Revised Appendix 1” (“P’s Subs” and “P’s Table”), and (ii) D’s “explanatory notes to the calculations of [D]” together with “[D’s] schedule on the 4 scenarios” (“D’s Subs” and “D’s Table”). On 27 July 2021, the parties appeared before this court for oral submissions on the aforesaid quantum matters. 27.For convenience, the sections and pages of the trial bundle are referred to in this Judgment as, say, “A/xx” or “E/xxx”. III. FACTUAL WITNESSES 28.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.[19] (a) P 29.When P gave evidence, she adopted her witness statement dated 24 August 2018 (“P 1st WStmt”) and her supplemental witness statement dated 28 September 2019 (“P 2nd WStmt”). 30.P was born in Hong Kong on 30 September 1991. According to the Psy Jt Report, P’s father (70 years old at the time of the Ortho Exam in 2017) used to work as security guard, but suffered a work injury and had since retired. P’s mother (66 years old at the time of the Ortho Exam in 2017) was all along a housewife. She suffered from hypertension/diabetes, and had an eye operation. P lived with her parents in a public housing unit in Tseung Kwan O. P had an elder brother (older by 5 years), who worked at a jewelry shop and who was married with 2 children. He moved out of the family home after his marriage. P reported to the Psy Experts that she had good relationship with her parents, that she was quite close to her elder brother, and that she had a happy childhood. 31.P studied in a local girls’ secondary school up to Form 5 (“1st SS”) and, according to the Psy Jt Report, attained a score of 25 in the Hong Kong Certificate of Education Examination. She then attended Forms 6-7 at the Hang Seng School of Commerce (“2nd SS”) in 2008-2010, and obtained her Bachelor of Business Administration (majoring in information systems and management) at the Hong Kong University of Science and Technology (“HKUST”) in November 2013. The 1st SS, the 2nd SS and HKUST are referred to in this Judgment collectively as “Schools”. 32.P told the Psy Experts that she had many friends (including good and close friends at the Schools), that she had no family history of psychiatric illness, and that she herself had no personal past history of major stress and/or psychiatric illness. P told the Psy Experts her pre-morbid personality was optimistic, cheerful, extroverted, creative, brave, strong-willed and determined with stable mood. 33.According to the Psy Jt Report, P reported she was one of the top students in her class in primary/secondary schools. She performed well academically, and was given leadership positions at school, such as class monitor and chairperson of the student union. She was often told by her teachers she would go on to accomplish great things given her talent and personality. 34.According to P’s curriculum vitae annexed to her various post-Accident job application letters (“CV”),[20] (a) she was selected as “The Outstanding Youth Leader” for the Federation of Youth Group Youth Leadership Programme in June 2006, (b) she received the president’s nomination out of 350 Form 7 graduates on recommendation by the headmaster of the 2nd SS in 2010, and (c) she was awarded the HKUST Alumni Endowment Fund Service Award to “[honor] …… strong leadership abilities & commitment in serving local and international communities ……” in April 2013. 35.Under cross-examination, P claimed that, “comparatively speaking”, she had strong leadership abilities amongst her peers. Indeed, P’s own post-Accident job application letters[21] asserted she was a “determined person who upholds integrity” and “[her] leadership potential was gradually being recognised at school and being selected as Head Prefect” (and as such head prefect in Form 6 or Form 7 she would communicate with her fellow students and also the headmaster/teachers being senior persons in authority). P claimed under cross-examination she was not afraid to discuss with others what she wanted “provided that discussion could be made with that person”. 36.Ms Chao submitted P was a dishonest person and an unreliable/incredible witness. It was said (a) P considered herself a high achiever with an unhappy habit of using underhand means to get what she wanted (ie she would not allow obstacles or perceived obstacles stand in her way in attaining what she wanted, and/or she was not above twisting, hiding and/or not telling the truth), but (b) when she realised or thought she might not get what she wanted, she would save face (面子) by taking steps to forestall probable failure or setback because (i) she detested tasting defeat especially when such defeat might be seen to be due to her own shortcomings, and (ii) abhorred being pitied as a weakling with deficiencies and/or flaws, or being looked down upon as an incompetent failure, and (c) when confronted with the “web of lies” she had spun to shroud her own mistakes/problems, she would conveniently victimise herself to seek sympathy from others and/or blame others to justify her untruths, so P’s evidence (eg her assertion that she was too “weak” to resist Kwan, Chau and Tan who were her seniors when they allegedly forced her resignation and pushed her out of the College) required particular scrutiny. 37.As illustration, Ms Chao relied on inter alia the following contentions, which I will revisit and analyse in more detail below:
38.On the other hand, Mr Sakhrani submitted D’s attacks on P’s credibility were not made out, and he invited this court to accept P’s evidence, which he said was reliable and consistent with her case despite not being entirely perfect. Mr Sakhrani argued that the evidence before this court demonstrated (a) P seized the opportunity afforded by the fact she was not at the top of her class to improve so as to graduate, (b) P was determined to pass the Course even after the Accident, (c) graduation was not wishful thinking even on Kwan’s evidence, and (d) even if (on D’s case) P knew she had to have surgery after the Accident, she could have deferred PI training to re-train later with another squad (“Re-training”) if D had presented such option to her,[24] so there was no reason and it was illogical for P to suddenly and voluntarily resign to “save face” given (i) her wish to have the best for herself, (ii) the path she had taken to where she was, and (iii) her apparent keenness to carry on with her PI training, and instead her resignation would have caused her to “lose face”. Mr Sakhrani suggested (1) P’s family “…… would have asked her to stay in the job ……” had they known she did not voluntarily resign, and (2) if P feared failure, she would have remained a PI earning more substantial income than she would have earned if she left, which in turn meant (on D’s case) she could have accepted the option of either suspending PI training and postponing it until recovery (“Postponement”) or Re-training without suffering financial loss. 39.So Mr Sakhrani urged this court to accept P’s evidence (which he submitted was credible) that Kwan and Chau forced her out of the College without fair treatment and/or reasonable accommodation, and to conclude that P’s ability to stand her ground among her peers or even to stand up to her treating doctors (eg in declining offered treatment option) could not be compared to dealing with “three stern police supervisors” (presumably Kwan, Chau and Tan) who were “tough on her” and “pushing her out in a hasty manner ……” It was further said although P failed in her post-Accident juris doctor studies, she accepted without blaming others that she could not cope with the course, and she then moved to her present job as ALOII with LD. In summary, Mr Sakhrani submitted there was no basis to suggest P was dishonest and scheming, and her appraisal records as ALOII of LD demonstrated she was diligent/ hardworking and did not cause trouble. 40.Having carefully considered P’s testimony against the totality of the evidence (including witnesses’ evidence, contemporary documents and expert opinion), her background/personality and the overall probabilities, I do not accept that overall P was a credible and/or reliable witness. In my view, notwithstanding some candid responses, her evidence was largely a tangle of truths, half-truths, untruths, embellishments, dissembling and reconstruction. In coming to this view, I have reminded myself an untruth would not necessarily prove the opposite, but depending on the significance of the subject matter in the present context, it might indicate a consciousness on P’s part that the truth would not have assisted her case. But where the probabilities favoured some element of truth underlying her testimony, I make findings accordingly. 41.Cross-examination was a revealing process (especially when P had to face intensive questioning over various topics/documents), and despite (as I accept – see the above paragraph) some candid responses, much of P’s evidence essentially argued her own case and/or put an unrealistic spin on the situation. P embroidered her evidence on important topics (and was not above making up evidence as she went along in response to perceived difficulty in answering questions in a manner consistent with her case), and had an elevated degree of wariness when giving evidence (and was not above sidestepping matters she perceived might not be of advantage to her case). P also argumentatively refused to accept some obvious propositions (sometimes until constrained by pressing cross-examination), made some implausible assertions that did not sit well with contemporary documents, and was unwilling to agree to some objective documents which she saw as being unhelpful to her case. Further, even though P’s evidence was coloured by her perfuse anger/ dislike towards Kwan and Chau and to a lesser degree Tan, I gained the impression there was a degree of reconstruction in her evidence in which she deluded herself into a state of denial of D’s case and belief in her own version of events, which I find unpersuasive. Regrettably, P’s testimony had hallmarks of self-serving partiality that detracted from her overall reliability, and I find there were unreliable shortcomings in her evidence. 42.In my view, critical matters in P’s testimony became understandable upon proper appreciation of her background/personality, and they did not reflect well on her overall reliability. P was close to her family members, but claimed to have an underprivileged upbringing, eg she spoke to the Psy Experts of hardship during her school years of having to walk up a hill and not take minibus to school in order to inter alia save money. Although I find on balance P was not a natural high flyer/achiever, she did quite well in academic studies and in extra-curricular activities at the Schools by dint of diligent effort. In my view, P developed high expectation of what she could achieve and/or, in Mr Sakhrani’s words, “she …… wanted the best for herself”, which expectation/wish was probably driven by (a) her hope that her disadvantaged upbringing would not be a barrier to success, (b) her wish to take care of her elderly parents (when her brother had his own family), (c) the pride/gladness of her family/relatives when she excelled and made achievements, and (d) the encouragement, expectation and accolade of her school teachers, schoolmates and friends. I agree ambition for betterment of itself was not a negative trait, but the above family circumstances and P’s upbringing in her formative years moulded and shaped her into an outwardly headstrong but inwardly insecure young woman who had ample pride in the achievements she made so far, lively desire to seek the best for herself, and big dreams that at times overreached her abilities, but at the same time she lacked perceptive insight of her own flaws and weaknesses, possessed fierce desire not to be looked down upon, had strong aversion to being pitied as a failure by reason of her own problems and limitations. Ms Chao brutally put it as an unhealthy co-existence of desire for achievements and fear of failure. 43.In my view, the sensitive/insecure side of P’s personality was not so apparent during her years at the Schools as she did not encounter many setbacks or failures and her diligence paid off with good results in her academic studies and in her extra-curricular activities (eg despite her symptomatic and recurrent left knee problem (as I find below) P pushed herself to and did play some handball and basketball (which, as explained below, were sports inappropriate for her condition) up to competitive level), but it had always been part of her psyche. As a result, (a) P’s accomplishments were not relaxed successes in confident belief of her own abilities, and instead (b) she was burdened by high expectations and dogged by constant worry that her good results so far might not be enough or might not last, which consequence would have dismayed not only P but (as she feared) also those around her, and which P could not face with level-headed equanimity and maturity. Indeed, P told the Psy Experts that “…… [when] she got good results, she would think what deficiency she might have and would learn from it ……” This was not, in my view, modest humility in pursuit of limitless knowledge, but brittle wariness of frangible successes and uneasy anxiety of awaiting misfortune, especially when her triumphs were attained after much effort and struggle. 44.But when P left the cocooned environment of the schoolroom and turned to face the tough reality of (a) the high standards set by and the detailed health information required by HKPF for recruitment of PIs upon her application to join HKPF, (b) the demanding academic and physical training curricula of the Course and (c) the obviously stronger abilities of most other PIs of PI566 (who were not merely fresh graduates from local universities but also (i) those seasoned by overseas education and work experience and (ii) rank and file police officers with actual police experience who were in line for promotion), I find on balance P did not have the sensible and steadfast fortitude to calmly take the worry and stress that were fuelled by her high hope and big dream of becoming an IP, but she was beset by fragile apprehension of perceived probable risk of (1) being rejected in the recruitment process (eg worry that her pre-existing left knee condition might catch up with her upon enquiry by HKPF if such condition were disclosed in the recruitment process) or (2) not surviving PI training to graduation (eg lagging behind in difficult academic training despite industrious studies, and not keeping up with challenging physical training despite earnest exercising). Plainly, assured achievements were less easy to come by than during her years at the Schools, and I find she was anxious to keep at bay the potential dismay, embarrassment or even shame of failing recruitment, failing passing out, and ultimately failing herself and her family. 45.Regretfully, P’s answer to her predicaments was not humble and enlightened acknowledgment of her medical condition/history, her faltered academics and her physical weaknesses as baseline from which to build solutions; instead, she distracted and dissembled (a) to bolster her high goals of becoming enrolled as a PI and eventually passing out to become an IP, and (b) to forestall the unpleasant dismay, embarrassment and/or shame that would visit should she fall short, which Ms Chao bluntly described as P victimising herself and blaming others. 46.In my view, P started PI training in October 2013 with keenness to attain her high goal / big dream and to do better than the Physical Fitness Test referred to in paragraph 330 below, and she applied her usual diligence to the task at hand. But despite serious efforts, P fell from being a top student at the Schools to a marginal trainee at the College. P was daunted by her own uninspiring performance and by the better capabilities of her squad mates. Whilst she still stubbornly told herself and others (eg family, friends and squad mates) that she would continue to strive towards her high goal / big dream, she was increasingly discouraged by the tangible reality of marginal results and shaken expectations, and by the nervous dread that she might fail the strict and arduous passing out standards and disappoint all those around her. So while P outwardly “pinched her nose” to double down on her efforts and still yearned for passing out as she wallowed close to bottom of her squad, she felt more and more out of her depth and was not coping with the hardships of PI training, which she knew would be even more rigorous and demanding in the months ahead, and which exploded her previous experience that diligence and perserverance would dictate a good outcome. 47.In December 2013, P’s troublesome ordeal with PI training was aggravated by the inopportune Accident/injury with consequent need for corrective surgery and lengthy rehabilitation. In my view, these matters conspired to cause P (who had yearned and strived to become an IP) to reluctantly come to the disheartened view that failure to pass out was a real/looming probability that could not be overcome by renewed diligence and/or even by distracting and dissembling. So even though P still outwardly clung desperately to her ideal of passing out and becoming an IP, she in her mind knew she (and not just her left knee) was exhausted and overwhelmed by PI training which for her was gruelingly intensive. 48.I agree termination of PI training would be a discouraging disappointment for P as well as her family and others around her, but P (who was more aware of her left knee condition/injury, her required surgery, her needed rehabilitation and her likely prognosis than she would wish this court to believe, and who by then had 13 weeks’ experience of lacklustre academic training and struggling physical training) was stressed and frustrated by her difficulties, and was dejected about passing out. Regretfully, P with her edgy pride and sensitive personality pushed herself into a corner, outwardly trying to paint a picture of overcoming the odds (eg suggesting even after the Accident she was keen to return to her studies for upcoming examination and/or to make improvements), but inwardly turning secretive of her problems (eg not disclosing to HKPF her needed surgery/rehabilitation and brushing aside friendly enquiries by squad mates and friends), and eventually hiding to lick her wounds (eg resigning from HKPF, shuttering sympathetic overtures from ex- colleagues and friends, and tending to her surgeries and rehabilitation on her own). I find it was not in P to contemplate Postponement or Re-training (when she chose to conceal from HKPF her needed surgery/ rehabilitation, which information and advice were essential for HKPF to shape, approve and provide suitable accommodation to meet those needs) for she could not warm to the mortification of being pitied and commiserated for postponing her PI training and/or falling back squad (and perhaps even eventually failing passing out) due to her own weaknesses/problems while her squad mates passed out to become IPs. In my view, P was unable to bear or come to terms with what she perceived to be real likelihood of being exposed as a weakling who could not hack the Course as a result of her own weaknesses and underperformance, so she abruptly chose to walk away on her terms (ie resigning for “personal reasons”) so that she could in due course fashion her own explanation for leaving HKPF, blaming others for the sorry state of affairs if she could, but spinning her own excuse if she could not. But since P was secretive about these matters, I agree there might well be further / other reasons for walking away from HKPF which she chose not to disclose to this court, but I need not speculate on such undisclosed motives (if any). 49.It was said that graduation was not wishful thinking even on Kwan’s evidence, but even though Kwan said P’s prospects for passing out were not necessarily bleak/nil as “…… the teaching and assistance provided by the instructor could affect the final outcome, and the [College] has provided a lot of remedial classes, almost every item has such class ……”, he emphasised that the final outcome depended on sufficient time and determined effort, and that (as also confirmed by Chau) all PIs (including P) had to meet the strict standards for passing out. I also note that in so saying Kwan was then quite unaware P’s left knee injury needed corrective surgery and extensive rehabilitation. In all the circumstances, I find P’s aforesaid approach was not dissimilar to her less than accurate description of her work history that she chose to put in her post-Accident job applications / application letters and CV, which she claimed she would try to explain and justify later (see paragraphs 54-70 below). 50.Mr Sakhrani submitted it was illogical to suggest that P, who would actually “lose face” rather than “save face” by termination as a PI upon voluntarily resigning and thereby suffering financial loss, would have resigned of her own accord, and he contended that given P’s own financial constraints, she would have stayed on with HKPF to enjoy stable income as a PI with the benefit of Postponement or Re-training while she recuperated from her left knee injury. In my view, even if this might have been true for others with the resilience, fortitude and/or maturity to think so (but I need not make any such finding), P’s response to adversity was shaped by her background and personality, including her high-strung pride and her insecure sensibilities. She would yearn and work hard for the desired outcome, and all’s well if her high goal was attainable (eg when she did well in her academics and in her extra-curricular activities during her school years, and when she performed well as ALOII of LD after her departure from HKPF as evident from her appraisal and review reports – see F/832-902), but if she realised or perceived her expectation was unlikely to materalise despite effort, she would shy from reality or perceived reality, trying first to distract and dissemble to get her way, but failing that, rather than to admit to her own frailties and limitations, she would walk away and rationalise for herself it was due to others’ default if she could, or weave an excuse that cast her in better light if she could not. I find it likely this was the path P took when she was bothered by her PI training that was replete with tiring struggle, weak results and unfortunate injury in disappointing contrast to her bygone achievements secured through diligence that attracted acclamation and praise. Unversed in dealing with the harsh reality of looming failure with calmness and self-possession, P tried to sidestep the perceived unwanted outcome of likely failure to pass out not by disclosing the fullness of her medical condition to the College and by positively contemplating possible Postponement or Re-Training, but by distracting and dissembling, hiding her needed surgery and extensive rehabilitation, and later resigning from HKPF. 51.But in the aftermath of her resignation from HKPF, P became more and more angry and frustrated with (as she told the Psy Experts) having “wasted” prime years of her life when, despite strenuous efforts after the needed surgery and extensive rehabilitation, she was unable to find any job that she thought would match the shine of being a PI (and eventually an IP). I also find that perhaps in her youth and inexperience she had not expected the road to recovery was so obstacle-laden, especially in securing job(s) that she and/or others would not look down upon. Given her personality/character, P was not one to take regrets gracefully, and she needed rationalisation for herself and those around her to mourn the loss of what she saw as a secure career with bright future as an IP and to justify her missed destiny of achieving greater things predicted/expected by those around her. I believe P tried to convince herself she was wronged and was reinterpreting some events (especially the post-Accident events) from that perspective, which culminated in her present claim that it was D’s default and not her own problems. But there were times in her evidence that she let slip she actually knew she had resorted to half-truths and/or untruths. 52.I do not regard P as a grasping person only concerned with money although the quantum of her present claim was quite substantial. Rather, I see it as P’s unwillingness to recognise that she had overreached beyond her capabilities, and her sad attempt to vindicate herself by bolstering her righteousness and blaming others. I remind myself that in assessing P’s evidence she must not be criticised for her personal circumstances, her underprivileged upbringing, and her earnest efforts to set lofty goals and to seek high achievements. But that said, and giving full recognition of these matters, I find I still could not accept her evidence uncritically. 53.I will deal with P’s evidence and Mr Sakhrani’s criticisms against Kwan, Chau and Tan for hastily pushing P out of the College in more detail below. But it is useful to raise a few matters now to illustrate P’s character/personality as I have found. On this, I first turn to how P described herself in her post-Accident job applications / application letters and CV. 54.It was common ground that (a) P was recruited by HKPF as a PI of PI566 to undergo PI training,[25] (b) she did not complete the 36-weeks’ Course, and (c) she did not pass out and did not became an IP. But P held herself out as an IP (despite being just a PI for 13 weeks) so she would have a better chance to securing a job, having convinced herself that (i) she was in fact telling the truth, (ii) there was nothing wrong with such description, and (iii) such description could sit together with her emphasis on “integrity” in her job application letters. In my view and as explained below, (1) P’s description was plainly misleading to any reasonable reader engaged in recruitment exercise, and (2) P in fact knew such description was misleading. 55.In her post-Accident job application letters (see footnote 21 above), P claimed her leadership potential was “more strongly proved by holding the record of becoming the youngest female Women Police Inspector for the last ten years of intakes of Police College”. Further, in respect of her job application to MTR Corporation Limited (“MTR”) dated 26 October 2016, although there was no job application letter, P stated in Part III of MTR’s standard application form (F/800-802) that she was employed by HKPF from October 2013 to January 2014 as “Inspector” and described her key responsibilities as “管理下屬及執行警務人員任務” (F/800). P’s CV annexed to her job application letters also set out as follows (eg F/794):
56.P eventually explained under cross-examination that she stated she was an IP (without mentioning she was on probationary terms) in order to get her foot in the door, ie she beefed up her job applications / application letters and/or her CV with a view to excite sufficient interest to attract job interviews that were rare to come by. Mr Sakhrani submitted there was no suggestion P would have maintained she had passed out during any job interview or she would not have discussed the matter fully upon interview. He brushed aside P’s inaccuracies as not unusual embellishments in any curriculum vitae, which was even more justified in P’s case since (according to P’s account to the Psy Experts) she was by then desperate for work to earn a living to support her family. 57.But I note when P gave evidence under cross-examination, she had not been frank and upfront in facing up to what Mr Sakhrani described as the “real” reason for not mentioning she was actually employed by HKPF on probationary terms. Rather, as seen below, P initially insisted her job applications / application letters and/or CV were correct and not misleading until determined cross-examination left her little option but to concede she chose not to mention she was on probationary terms because she hoped her job applications / application letters and/or CV so worded might interest potential employers to offer her job interviews. 58.P initially claimed under cross-examination that the fact she was employed as a PI and hence was not yet fully qualified as an IP would have been known to potential employers (and so her CV was not misleading) because (a) the recipients were likely to be experienced human resources staff “who should be very familiar with the operation of civil service” and they would have known from the short period of service stated on her CV (ie just a few months) she was only a PI, and (b) “…… when applying common sense, many people will know that for the first three years of a civil servant, they would be working on probationary basis ……” 59.I find such explanation quite unconvincing. In my view, any reasonable reader with recruitment in mind would not have understood from P’s job applications / application letters and/or CV that she worked merely as a PI. First, in contrast, P described her position at Cathay Pacific Catering Services (“Cathay Pacific”) for August-September 2013 (which was her 1st job after completing tertiary education) as supervisor “trainee”, her summer job with HKPF’s Police Public Relations Branch for June-August 2012 as “intern”, and her job as horse owners’ relations officer administrative assistant of Hong Kong Jockey Club for April-August 2012 as “part-time” work, when all 3 of these jobs were also of short duration. From such descriptions, P obviously had to accept under cross-examination there was no practical difficulty for her to describe herself as a PI in her CV. 60.Secondly, the bottom of P’s CV contained “special remarks” that “[from] Jan 2014 to the present, [P is] compensated by [HKPF] due to a work injury. And the work injury case will end soon and [P is] able to find a new path for contributing [her] abilities and potentials”.[26] In my view, on reading P’s CV as a whole, P plainly held out to any reasonable reader with recruitment in mind (and such reader would have reasonably understood) that she previously worked as an IP but her service was cut short in January 2014 due to work injury. I find on balance this was the illusion P consciously created in her CV. 61.Thirdly, P tried to reinforce this impression in the CV by her description of her job duties as an “IP”, which quite unabashedly held out that she did work as a qualified IP carrying out actual police duties:
62.It was telling that even when confronted with the above matters under cross-examination, P still insisted her CV reflected the truth because “…… [PIs] had to equip [themselves] with these skills in the College”, and she refused to accept a reasonable reader would be misled into thinking she was a qualified PI. But as alluded to in paragraph 59 above, P was eventually constrained to concede “absolutely there is no difficulty” to describe herself as a PI. But upon such concession, P would have to explain why she did not take the simple step to so describe herself, and instead chose to rely on assumed understanding of unknown recipients of her job applications / application letters and/or CV (see paragraph 58 above). P then tried to explain by saying that if and when she secured job interviews, she would bring along her certificates (including the Record of Service from HKPF that clearly stated she was a PI) to show the interviewers she was actually a PI. P was then pressed on why she would reserve her full/accurate explanation until the job interview, and when so trapped she finally admitted she was frustrated by (a) being out of work from 2014 to 2016 except as a volunteer office assistant at HKUST (as a result of her surgeries/rehabilitation), (b) not being as competitive as fresh graduates for junior jobs or workers with work experience for more senior jobs, and (c) securing very few job interviews despite sending out many job applications (F/745-829), “[so] by writing in this way, [P] hoped that [potential employers] would have more interest in [her] so that there would be a higher opportunity for them to telephone [her] and to ask [her for an interview] …… So, at that time, it is purely the fact that hoping …… there would be more chances for them to give [her] a call …… Well, since there are so many people looking for jobs in the world, so what should [P] do in order to arouse others’ interest on [her] case? ……” 63.It was plain from the above that P knew her descriptions in her job applications / application letters and/or CV about her job/duties as an IP did not reflect her true work history (despite her initial insistence otherwise under cross-examination), and she in fact hoped her embellished descriptions would lead to more job interviews in a difficult labour market. In my view, there were 2 takeaways from such evidence about P’s character/personality and her evidential reliability. 64.First, Mr Sakhrani submitted there was nothing wrong with P’s description of herself as IP simpliciter when (a) P’s rank as stated in the Record of Service was “IP”, and (b) Chan in his witness statement dated 29 August 2019 (“Chan WStmt”) stated he joined HKPF as an IP on 7 December 1998 (but he only passed out from the College in August 1999). Mr Sakhrani queried whether, mirroring D’s criticism of P’s description in her CV, Chan would likewise have to be branded as “dishonest”, and he further questioned D’s attempt to put forward Chan as a truthful and honest witness. Mr Sakhrani argued the same could also be said for Kwan and Chau who in their respective supplemental witness statements both dated 26 August 2019 (“Kwan 2nd WStmt” and “Chau 2nd WStmt”) stated they joined HKPF respectively as PC and IP without qualifying they were then on probationary terms. 65.I disagree. For (a) above, Part E of the Record of Service clearly described that P was a PI, ie “…… [P] commenced her [PI] training on 2013-10-07 with [PI566]. On 2014-01-03, [P] submitted a resignation letter stating that she wished to resign for personal reasons ……” (E/449-459). I am unable to see how the Record of Service when read as a whole would give any misleading impression that P was a fully qualified IP. This was precisely why P claimed she would show the Record of Service to potential employers during job interviews to reveal the probationary status of her service with HKPF to disabuse any misconception from reading her job applications / application letters and/or CV that she was a qualified IP (see paragraph 62 above). 66.For (b) above, there was material difference between the descriptions in the witness statements of Chan, Kwan and Chau and the descriptions in P’s job applications and/or CV. First, Chan, Kwan and Chau all passed out of the College and served as qualified police officers of HKPF, but P never did. Secondly, whether Chan, Kwan and Chau were described as PC/IP or probationary PC/IP when they first joined HKPF had no materiality to the subject matters of their statement evidence that concerned the Accident, the post-Accident events and the quantum matters, but description of P’s previous employment as a PI or as an IP was material information about her work experience for her job applications.[27] Thirdly, Chan, Kwan and Chau made no attempt to embellish the descriptions of their posts by saying they carried out actual police work whilst still under training, but P embroidered her description by elevating her training experience as actual police work (see paragraph 61 above). Plainly, P’s descriptions were designed (as she eventually accepted) to paint a better picture of her employment history than was actually the case to support her goal of attracting job interviews. I see no sinister motives for the claimed inaccuracies in the witness statements of Chan, Kwan and Chau. 67.The fact P clearly knew the aforesaid description in her job applications / application letters and/or CV did not reflect the truth (despite her emphasis on “integrity”) was demonstrated not just by her eventual confession as to the “true” reason for describing herself as an IP (see paragraph 62 above), it was also borne out by her contemporaneous job application form that she filled out to apply for the post of temporary administrative assistant of Hong Kong Examinations and Assessment Authority (“HKEAA”).[28] In HKEAA’s application form (F/804-806), P set out inter alia her full employment record, and described her position with HKPF from October 2013 to January 2014 as “Probationary Inspector: Solved problems by utilizing the resources in an ever-changing environment” (my emphasis). P did not explain why she chose to describe herself as PI for this particular job application, but I note with interest that she signed at the end of this application form to confirm the following:
This was in contrast to P’s other disclosed job applications / application letters and/or CV that described herself as an IP with work duties as such, which applications / application letters were largely addressed to private sector companies/institutions.[29] In my view, quite irrespective of the tit-for-tat criticism against Chan, Kwan and Chau for their descriptions as “IP” or “PC” in their statement evidence (which I have found did not take P’s case any further), this clearly showed P shrewdly tailored her approach to different potential employers, taking a bolder stance by describing her previous job/work as that of an IP when dealing with the private sector employers, but cautiously taking an accurate stance by describing her previous job/work as that of a PI when dealing with public sector employers who would cross-check with HKPF so any inaccuracy might put recruitment or even employment at risk. 68.Secondly, P’s job applications / application letters and/or CV as well as her testimony about such matters spoke loudly of her character/ personality and underlined the unreliability of her evidence. Once P set a goal for herself (sometimes also as exhorted by those around her), whether driven by desire as in the case of wishing to become an IP or by need in looking for post-Accident work, her initial mindset was to overcome setbacks with diligence (eg doubling down on her efforts in PI training, or sending out even more job applications), but when that did not work (eg her PI training examination results were unpromising, or her job applications invited few job interviews) she did not weather such setbacks well. Instead of braving the setbacks with, say, a modicum of reflection and maturity, she would try to distract and dissemble to get what she wanted (eg hiding her need for surgery/rehabilitation for her left knee injury to suggest she was on the road to recovery, or mis-describing herself as an IP in her job applications / application letters and/or CV to, as Mr Sakhrani said, put her foot in the door). Her flawed approach was compounded by her refusal to yield to the obvious (ie her fear of not being able to pass out in time or at all, or her “true” reason for mis-describing herself as an IP was to invite more job interviews) when she gave evidence, and she disguised it with blustering explanation that placed the burden on others rather than herself (eg her supervisors forced her resignation and departure from the College rather than she left voluntarily, or the human resources staff of potential employers ought to have understood she had been a PI rather than it was for her to make clear in her own job applications and/or CV that her previous employment was as a PI) until she was constrained under cross-examination to own up the “true” position, which (quite irrespective of her motives for adopting such approach) went a long way to demonstrate the overall unreliability of her testimony. 69.In my view, P exhibited some shrewdness in her dissembling (eg choosing to describe herself as a PI to potential public sector employers whom she knew would cross-check her information with HKPF – see paragraph 67 above, and as an IP to potential private sector employers who did not say they would be as inquisitive), but at the same time she also demonstrated some naivety (whether due to lack of sophistication in her first serious foray into the working world or due to obliviousness from single-minded focus on her goals/ambition) in not recognising obvious obstacles and/or untenable stance. Eg, P, who was wishful in securing job interviews, convinced herself of her righteousness in embellishing her job applications / application letters and/or CV by describing herself as an IP rather than as a PI, but obviously gave little thought to the downsides of her approach (eg a knowing human resources staff would hardly be impressed by her inflation of the CV in putting herself forward as an IP (when actually she was not) with job duties as such despite her emphasis on upholding integrity, and an unknowing human resources staff would hardly be pleased by having been “tricked” by her description into thinking she was an IP and thus granting a job interview). Thus, in assessing the veracity of P’s evidence, I cannot simply brush aside, as Mr Sakhrani asked me to, “illogical” acts/stance as something P would not have done/contemplated without looking at the totality of the evidence through the prism of P’s character and personality. In my view, even though P did not have the calculated cunning of an obsessive liar, nevertheless the overall quality and reliability of P’s evidence were undermined by P embellishing and embroidering her evidence. 70.Lastly, I note Mr Sakhrani argued that (a) if P lied it was with a view to secure a job in mitigation of loss, and (b) if D were correct in his allegation against P then “…… it would have been better for P to simply remain employed as a PI” and “[there] was no motive for her to swiftly resign all of a sudden on 3.1.2014 without any real reason ……” I disagree. For (a) above, reasonable mitigation did not entail telling untruths. Whilst P might have convinced herself the untruths stemmed from her goodly intent to look for work, it still raised concern that what she put forward was not reliable, which was compounded by her tendency to sidestep and dissemble until cornered. For (b) above, I find it inappropriate to view P’s actions on 3 January 2014 with the benefit of hindsight through the circumstances as known in 2016 when she was out of work for an extended period as a result of her surgeries/rehabilitation. It transpired that after the 1st Surgery in May 2014 P required the 2nd Surgery in November 2014 which was followed by extensive rehabilitation and lengthy sick leave until October 2016 when she discovered the unkind labour market disfavoured applicants who were no longer fresh graduates but who lacked work experience. But when P learned in December 2013 / January 2014 she needed corrective surgery for her left knee, she had no insight of eventual difficulties in job-hunting. After all, there was no evidence she had any difficulty in securing her jobs as supervisor trainee with Cathay Pacific and as PI with HKPF. 71.Such personality traits were not only evident from P’s post-Accident attempts to venture into the labour market, they were also evident from her subsequent employment. P said she was unable to secure stable employment after expiry of her post-surgery sick leave and was anxious for a full-time job.[30] On 9 June 2017, P was employed by the Companies Registry (“CR”) as a registration assistant on contract basis from 9 June to 8 December 2017 with monthly salary of $16,900, which P claimed was her 1st full-time job after expiry of post-surgery sick leave. But before P secured this job with CR, ie on 2 March 2017 when she claimed to be desperate for job interviews, she had already applied to read the City University of Hong Kong’s (“CUHK’s”) juris doctor programme. So even on P’s own case, although she was out of work for more than 2 years, she was still more driven by high expectations/goals she set for herself rather than practical financial reality that required an immediate full-time job with reasonable and stable income. This was evident from P’s evidence that (a) she wished for a more stable long-term career that would meet her lofty aspiration to serve Hong Kong citizens and to uphold justice, (b) she was willing to forego the financial comfort of earning a decent living from her full-time work and to even incur debt by borrowing student loan to read law, and (c) she resigned from CR by giving 1 month’s notice when she was accepted to the juris doctor programme on 9 August 2017 with her last working day on 18 September 2017. 72.In my view, P’s approach well-fitted her character/ personality. P explained she left CR not just for better future prospects (which in an appropriate context would not have been a negative trait), but also because “…… she felt embarrassed and shameful when she was asked why she would do this job despite her qualifications ……” (see paragraph 15.3(6) of the Psy Jt Report). I find P was eager to have “face” in her job that should be commensurate with her qualifications, and she had little insight that she overreached herself in her aspirations[31] when she ditched the mundane but stable job at CR that provided regular income to support her and her family, especially as, according to P, job interviews let alone jobs were hard to come by. It plainly showed P loathed being looked down upon. I am not persuaded, as Mr Sakhrani suggested, P would have necessarily clung to her employment as a PI in face of perceived looming failure to pass out because of the income such work would provide. 73.After P started to read the juris doctor programme, she found the course very challenging. The course materials were too difficult for her, and she suffered depression. Her grades in the 1st semester were unsatisfactory (F/904), and she told the Psy Experts her weak academic results in the 1st semester already barred her from entry into the Postgraduate Certificate in Laws (“PCLL”) programme, which would mean she could not have become a lawyer. P claimed it was fortunate that on 12 January 2018 she received a job offer as ALOII of LD with probationary period of 3 years and monthly salary of $27,485, which offer she accepted with consequent application to suspend her juris doctor studies to focus on her work at LD. 74.However, unlike her recruitment as a PI when she did not inform HKPF of her pre-existing left knee condition (see Part VI below), P gave heads up to CUHK about her depression shortly after she was accepted by the juris doctor programme and even before she left CR. On 31 August 2017, Dr Mak wrote to urge CUHK to afford reasonable accommodation for P in light of her depressive episode (C/304):
75.On 20 December 2017, P had a severe panic attack during examination on a course subject. Dr Mak wrote on the following day to urge CUHK to consider postponement of P’s examination for that particular course subject until she was mentally better (C/305):
76.There was no evidence to show (a) CUHK did not provide the requested accommodation and/or was unwilling to postpone examination of the 1 course subject as urged, and / or (b) CUHK and/or Dr Mak considered P unable/unfit to complete the juris doctor programme if she took a break until her mental condition was better. Whilst P should not be criticised for having depressive episode / panic attack, I find they led her to realise her diligent studies were not enough to enable her to master the complexities of the juris doctor programme (much in the same way as her hardworking efforts could not improve her weak academic and physical training during PI training that made she feel her stressed and pressured), and the panic attack that required hospital admission (much in the same way as the Accident/injury that required surgery/rehabilitation) was quite the last straw that cemented P’s perception that she was unlikely to attain the high expectation she set for herself of graduating and becoming a lawyer (much in the same way as P was pessimistic over whether she would pass out and become an IP). Given her character/personality, P’s reaction was not to ask for time/accommodation to return to the juris doctor programme when she was better (even though this was requested by Dr Mak on her behalf and there was nothing to show CUHK would not have favourably considered such request) and instead she chose to quit the programme (much in the same way as P resigned and left HKPF) because she considered it unlikely that she would eventually make it to the PCLL programme that was a pre-requisite for becoming a lawyer (much in the same way as P feared she might not pass out which was a pre-requisite for becoming an IP), but in a face-saving way by suspending the juris doctor programme while she trialled the new ALOII job (much in the same way as P chose to resign for “personal reasons” when she left HKPF while she attended to her surgeries/rehabilitation). In my view, the job offer from LD was a fortuity P seized upon for leaving the juris doctor programme to avoid the real risk of failing the course and failing to graduate due to her own limitations when she would have to leave anyway for there was no viable way forward as she feared her grades could not bring her into the PCLL programme. 77.Mr Sakhrani submitted P did not blame anyone, which was true as there was no other person to blame, but as explained in the above paragraph, P made a face-saving gesture of suspending her juris doctor programme to let it peter out slowly even though she must have known she could not have returned to such studies that were obviously too difficult for her and that would not have resulted in a legal career. Although P claimed under cross-examination she was not scared of failing examinations and she was not afraid of failure, I find on balance that despite wanting the best for herself and her family and despite being diligent and hardworking (see eg P’s LD appraisal reports), which traits served her well when she persevered within her abilities such that she would earn applause and encouragement from those around her, she was not one who would take actual or perceived poor outcomes well when she overreached beyond her abilities, and in her insecurity she would resort to outwardly painting a much better picture than was the case to try to convince others and herself, distracting and dissembling to get her own way if she could, but blaming others or walking away to rationalise/reconstruct with a view to excuse herself (if she could not). For convenience, I shall refer to Ps’ character and personality as described in paragraphs 30-77 herein as “P’s Personality”. 78.Before leaving this broad overview of P’s testimony, I draw attention to Dr Hung’s opinion that there was overall good consistency in the psychiatric symptoms reported in the course of the Psy Exam and the medical records, that P’s observed mood in the course of the Psy Exam appeared genuine, and that he did not find any evidence of symptom exaggeration, feigning or malingering. Further, there was no suggestion by the Ortho Experts that P’s orthopaedic symptoms presented at the Ortho Exam were not genuine. 79.Although medical experts should forensically consider matters within their own spheres of medical expertise, factual findings on the overall credibility/reliability of witnesses as to fact came within the sphere of the court as a tribunal of fact upon overall assessment of the factual, expert and documentary evidence as a whole, and having the benefit of (a) witnesses’ testimony tested under cross-examination and (b) counsel’s oral/written submissions. Medical experts are required to confine themselves to medical matters, and while I have taken the observations of the Experts into account in assessing the veracity of witness evidence, their views would not bind this court given the judicial function set out in paragraph 28 above. 80.I accept (apart from the issue of causation) there was an element of truthfulness in P’s evidence as to her emotional sufferings following the Accident, the 1st/2nd Surgeries and the consequent rehabilitation. In coming to my views on her overall credibility and/or reliability, I have given allowance that (a) perhaps P might have found giving evidence at the trial a stressful experience (and she had shown some signs of emotion during her testimony), (b) P had some psychiatric symptoms/condition, and (c) there might have been occasional signs of nervousness and/or guardedness when subjected to cross-examination. But certain aspects of P’s evidence were unduly defensive and/or argumentative, which were not the characteristics of truthfulness, and as explained above, there were times when a point (perhaps thought to be disadvantageous) was not conceded until there was no option but to do so. There were other times when P made unhappy attempts to deflect uneasy questions by not answering straightforwardly. As I said in paragraph 41 above, I gained the impression there was a degree of reconstruction in P’s evidence in which she deluded herself into belief of her righteousness and D’s default. In my view, P’s perception of the events became distorted through the prism of unhappiness, frustration and resentment as a result of her injury, surgeries and/or rehabilitation whilst her squad mates passed out and became IPs and even SIPs (as in the case of Lee Hoi-ching (李海貞) who was a PI who took on strength / started her PI training with PI568 on 7 August 2013, “Lee”), and P convinced herself that Kwan and Chau (and perhaps Tan too) concocted an evil scheme that targeted her, which conviction probably strengthened over time and coloured her perception of other matters. Consequently, her eventual pleaded claim, account to the Experts and statement/oral evidence were largely based on a rehearsed script borne out of such unhappiness, frustration and resentment that sought to portray her helplessness against her supervisors whom she claimed were determined to force her resignation and push her out of the College, and her blamelessness for the Accident, injury and departure from HKPF. But, as seen below, there were occasions under cross-examination when P’s scripted responses were inadequate, or when she had to address other matters, which exposed the overall unreliability of her evidence. 81.I conclude that P’s overall evidence was unsatisfactory, and her attempts to explain away crucial matters which might be considered detrimental to her case were not credible. Except for the matters that I accept in the analysis and discussions below, I reject her evidence on the core matters. (b) D’s witnesses 82.Kwan When Kwan gave evidence, he adopted his 1st witness statement dated 17 September 2018 (“Kwan 1st WStmt”) and the Kwan 2nd WStmt dated 16 August 2019.[32] He also gave a police statement dated 22 January 2016 in relation to the Accident (“Kwan PStmt”). Kwan joined HKPF in February 1983 as a PC (should be PC trainee) and was later promoted to the rank of IP. In 2013-2014, Kwan was the DMI for PI566-568, and his main responsibility was foot drill training. He belonged to the drill and musketry unit of the Basic Competencies Training Division (“BCTDiv”) of the College,[33] and his direct supervisor was the CIP in charge of the drill and musketry unit. Kwan commenced pre-retirement leave in March 2020, and formally retired in September 2020, but he was employed as an IP by HKPF on contract basis since March 2020. 83.According to the Kwan 2nd WStmt, Kwan’s duties in 2013-2014 were mainly to assist the CIs of PI566-568 to manage the daily needs and miscellaneous matters of PIs, including monitoring, teaching and taking care of them. In short, matters concerning PIs not within the teaching duties of the CIs usually fall within the scope of Kwan’s duties. According to the Kwan 2nd WStmt, he was “…… mainly responsible for administrative matters concerning PIs ……” The P 1st WStmt acknowledged Kwan was responsible for arranging PI training for P and other PIs. 84.Chau When Chau gave evidence, he adopted his 1st witness statement dated 6 September 2018 (“Chau 1st WStmt”) and the Chau 2nd WStmt dated 26 August 2019.[34] He joined HKPF as an IP (should be PI) in April 1996, and had since been promoted to the rank of CIP. But Chau did not come up through the ranks at the College, and instead he worked at police formations outside of the College as a SIP before he was promoted to the rank of CIP. At the time of the Accident, Chau was the CI for PI training of PI566 (ie P’s squad),[35] and was the instructor/lecturer for legislation training, law class and leadership training as well as class teacher for some other classes. Chau belonged to the Recruit Training Division (“RTDiv”) of the College (see footnote 33 above). 85.According to the Chau 2nd WStmt, Chau’s duties in 2013- 2014 were to (a) oversee and supervise PI training given to PIs at the College (and he was in charge of P’s PI training), and (b) ensure all PIs who completed PI training and who passed out would have acquired basic police skills necessary for performing duties as a patrol sub-unit commander. Chau explained under cross-examination that as CI he had an overall role in terms of the Course. 86.Choy When Choy gave evidence, she adopted her witness statement dated 6 September 2018 (“Choy WStmt”).[36] She joined HKPF on 2 November 1992, and was promoted to the rank of WSgt on 12 October 2007. From 26 December 2010 to 5 September 2015, Choy was WSgt of the drill and musketry unit of BCTDiv at the College, and was responsible for administrative work. On 3 January 2014, Choy witnessed the taking of the 3/1/14 Stmt and Lee’s police statement (“Lee 1st PStmt”). Both statements concerned the Accident. Choy herself made a police statement on 15 March 2018 in relation to the taking of the 3/1/14 Stmt (E/476, “Choy PStmt”). 87.Chan When Chan gave evidence, he adopted the Chan WStmt dated 29 August 2019. At the time of the Chan WStmt, Chan was a SP with RTDiv of the College. He joined HKPF as an IP (should be PI) on 7 December 1998, graduated from the College in August 1999, and was promoted to the rank of SP on 14 May 2019. Chan was not stationed at the College in/about late 2013 and/or early 2014, and was attached to the Criminal Intelligence Unit at Criminal Headquarters, Wan Chai Police Headquarters. In November 2017, Chan (then a CIP) joined RTDiv of the College as an instructor. After his promotion to the rank of SP in May 2019, he stayed with RTDiv until he left the division in May 2020. Chan had experience in handling personnel matters (including promotion matters) and EC claims of HKPF’s staff, and was familiar with the career path of PIs who eventually passed out from PI training at the College and continued their police career with HKPF. 88.Credibility of D’s witnesses Mr Sakhrani submitted Kwan, Chau and Tan had motives to rid P from the College/HKPF after the Accident and hence to force P to resign “voluntarily” and to sign the inaccurate 3/1/14 Stmt:
89.In his written closing submissions, Mr Sakhrani also made general observations that suggested D’s witnesses were not credible:
90.It is perhaps convenient to take the last point first, ie the complaint that D failed to give discovery. Mr Sakhrani cited 3 examples, and I deal with them accordingly. 91.First, Mr Sakhrani submitted that since Kwan admitted that PIs would write daily reports and/or diaries to him and he encouraged them to use English in documents, “…… it is very likely that there were written reports about the [Accident] or [Dr J Lam’s MC dated 24 December 2013 (“3rd MC”) at E/438], which Kwan claims never to have seen ……” It was said there was no reason for P to have lied about having submitted the 3rd MC to Kwan or about the reasons she was told it had been rejected and returned to her, especially as she had the 3rd MC at hand and would have submitted all MCs she had (ie the MC dated 20 December 2013 issued by PYNEH’s DOT (“1st MC”, F/436), 2nd MC (F/437) and 3rd MC (F/438)) instead of omitting the 3rd MC which would have been favourable to her with a longer sick leave period. 92.I deal with the matter of the 3rd MC in Part XXIV below, but suffice to state here I find P did not submit the 3rd MC to Kwan / HKPF whether via the squad prefect or otherwise. In any event, the complaint in the above paragraph was not understood. Even if PIs were required to write daily reports and/or diaries to Kwan, such written exercise would have been part of the course work in PI training, and it was difficult to see any plausible basis for thinking the Accident (which incident was (a) not witnessed by any PI even though 3 PIs walked ahead of P at the material time, and (b) extraneous to the course work in PI training) and the 3rd MC (which MC was not handled by any PI except, according to P, the squad prefect, but which again was a matter extraneous to the course work in PI training) would have featured in the daily reports and/or diaries of PIs, especially when Mr Sakhrani did not cross-examine Kwan, Chau and/or Chan on the nature/contents of such daily reports and/or diaries, or whether these documents (which must have been voluminous since they were generated by PIs of the College on daily basis) were still retained and kept years after the Accident. Indeed, P who had been a PI would have known the scope/extent of the contents of such daily reports and/or diaries, but there was no evidence forthcoming from her on this. As Mr Sakhrani was wont to say in answer to D’s complaint about P’s non-disclosure of MNR in relation to her follow-ups with UCH’s DOT as well as documentary evidence in support of P’s allegation that she vigorously played handball and basketball at high level after her previous left patella dislocations in 2003/2006, there was no application for specific discovery. I find no merit in this complaint, which did not lead me to view the evidence of D’s witnesses in any negative way. 93.Secondly, Mr Sakhrani submitted that (a) Chau admitted he and Kwan would show each other social media messages that passed between either of them and PIs to ensure the messages they received were consistent, and (b) it would have been convenient for Chau and Kwan to have forwarded such messages to each other as they worked at different locations and would not see each other all the time, so the inference was that there must have been WhatsApp messages (and/or other similar social media communications) (i) between Kwan and Chau and (ii) between them and Tan. On such basis, Mr Sakhrani suggested it was unlikely there were no such messages among Kwan, Chau and Tan about the Accident (eg how it happened, and what was needed in order to comply with OSH procedures) and about their idea on how to deal with P and her recovery from left knee injury as a result of the Accident. Mr Sakhrani complained D did not disclose such communications. 94.The short answer to such complaint was the absence of any evidence to show HKPF assigned official mobile telephones for the use of Kwan, Chau and/or Tan as Mr Sakhrani did not cross-examine any of D’s witnesses to clarify this. So even if there were message communications amongst Kwan, Chau and Tan as Mr Sakhrani claimed, there was nothing to suggest such messages were not stored in their personal mobile telephones. I am unable to see how D, not having possession, custody, control or power over employees’ private telephone equipment, would have been in breach of its obligation of make/give discovery. 95.In any event, I do not see any sufficient basis to suggest there must necessarily have been message communications among Kwan, Chau and Tan about the Accident and/or how to deal with P and her recovery. In relation to Tan,
96.As between Kwan and Chau, Chau fairly accepted they would generally show each other their respective WhatsApp messages with PIs to ensure the information they received were consistent, but Kwan and Chau agreed that (a) between 20 December 2013 and 2 January 2014 they had initial discussions by telephone about P’s Accident and her sick leave (with Kwan saying he did not send any particular WhatsApp message to Chau, and Chau saying he could not remember whether he had seen any particular WhatsApp message between Kwan and P that was forwarded to him by Kwan, who was also on vacation leave from 28 December 2013 and 1 January 2014 (both days inclusive)), and (b) in the morning of 3 January 2014 (when Chau resumed duty after vacation leave) they had a more thorough face-to-face discussion about inter alia P’s Accident, her injury, her progress of recovery, and her difficulties in PI training (see Part XXX below). 97.Further, as regards OSH matters, both the Kwan/Chau 2nd WStmts stated that after learning about the Accident, Kwan and Chau discussed about the Accident and P’s condition, and Chau advised Kwan to deal with P’s situation according to standard procedures for handling injuries suffered by PIs (“Standard Procedures”), ie (a) taking measures to facilitate P’s speedy recovery (eg avoiding physically demanding duties like foot drill, and allowing her time to rest), (b) lodging requisite forms (eg Form 2 under ECO), and (c) informing other stakeholders (eg physical training instructor) about P’s updated situation to ensure her welfare would be taken care of. There was nothing to suggest such discussion, which necessarily would have taken place shortly after the Accident on 20 December 2013 (when both Kwan and Chau were on duty and had not yet commenced vacation leave), was not an oral one. Still further, the Chau 2nd WStmt stated it was after P resigned on 3 January 2014 that Kwan discussed his findings in relation to the Accident with Chau and they agreed to classify the Accident as a “level 2” OSH incident (since P only had 9 days’ sick leave). This was unsurprising when P sent the 1st MC to Kwan by WhatsApp message on 20 December 2013 (see paragraph 482 below), but (according to P) she only physically submitted to the College on 29 December 2013 (when both Kwan and Chau were already on vacation leave – see paragraphs 95(b) and 96 above) the 2nd MC, the 3rd MC and the 4th MC dated 27 December 2013 and issued by UCH’s DOT that recommended sick leave for 1 day (ie 27 December 2013) for “left patella dislocation” and that advised avoidance of (i) “heavy physical duty for 4 weeks from the date of this [MC]” (ie “light duty for 4 weeks” from 27 December 2013) and (ii) “strenuous exercise / marching / foot drilling” (E/439) (but D claimed HKPF only received the 2nd and 4th MCs). 98.I find there was insufficient basis to persuade this court to come to the view that there was necessarily to and fro social media messages among Kwan, Chau and Tan on the topics Mr Sakhrani suggested in paragraph 93 above, especially in light of the evidence on the lines of communication explained in paragraphs 95-97 above. 99.Thirdly, Mr Sakhrani submitted that paragraph 16 of the SSP FT Standing Order No 10-08 Occupational Safety and Health (“SSPFTSO10-08”, E/565-569) required documentary notifications to “different individuals”, including Tan, but there was no disclosure of those reports. 100.It is perhaps useful to start by setting out the relevant provisions of SSPFTSO10-08 as follows:
101.Paragraph 16 of SSPFTSO10-08 referred to the “OSH Incidents Protocol” (version 2, 9 December 2017) (“OSH Incidents Protocol”, E/570-588), and the relevant provisions therein were as follows:
102.Under paragraph 6 of the OSH Incidents Protocol, the relevant document for external reporting of an OSH incident was the Form 2, which was to be submitted to “CP (Attn: SP CS L&HM)” (of HKPF’s Personnel Wing according to the Kwan 2nd WStmt) presumably for onward lodgment with LD. D did discover and disclose the memo dated 3 January 2014 by Kwan on behalf of “SSP FTC” to “CP (Attn: SP CS L&HM)” of the Leave and Health Management Division of HKPF’s Personnel Wing (“3/1/14 Memo”, E/440-465) (see paragraph 800 below) with copy to “SP OSH SUP” (see footnote 146 below) and “FWO HK1” (see footnote 147 below) together with “1 set of Form 2” (presumably the Form 2 dated 3 January 2014 in respect of the Accident, “3/1/14 Form 2”). “SSP FTC” was the senior superintendent in charge of the Foundation Training Centre (ie school head who came under the Director of Hong Kong Police College) and same as “SSP FT” under SSPFTSO10-08. 103.For internal reporting, the OSH Incidents Protocol required the supervisor concerned to make a report to the duty officer (“DO”) of the police station where the OSH incident occurred, and the DO would then open a RN on CMIS and report to regional command whilst the supervisor concerned would input necessary data into the RN. But unlike a police station, there was no DO at the College. Pursuant to paragraphs 3-5 of SSPFTSO10-08, Tan as divisional head of RTDiv of the College assumed the role of DSRM, which was confirmed in a letter dated 26 April 2019 by the Department of Justice (“DoJ”) to P’s solicitors (“26/4/19 Letter”, E/479). But it appeared from paragraph 11 and Annex A of the OSH Incidents Protocol that the DO and the DSRM were 2 different persons. It was unclear who would have been the equivalent of the DO at the College for the purpose of the OSH Incidents Protocol. Be that as it may, a RN had been opened for the Accident as evident from the RN number ABDDIV14001186 on the OSH Accident Report Form (E/468-470), and Chau as the supervisor concerned did input necessary computerised data to generate such form that gave Tan as the “Formation Commander as SP Level” (E/468). The OSH Accident Report Form was a printout containing such computerised data (see in particular Part 2 thereof and paragraph 818 below), and Chau signed on Part 1 of such printout copy (see paragraph 817 below). In my view, it would be hard to imagine that Tan as the divisional head of RTDiv at the College, Chau’s supervisor in the chain of command and also the relevant DRSM would not have access to such computerised record about the Accident as an OSH incident (see paragraph 16(a) and (j) of the OSH Incidents Protocol – see paragraph 101 above). 104.As for the record file under paragraph 16(b) of the OSH Incidents Protocol, D disclosed the 3/1/14 Form 2, the 3/1/14 Memo, the OSH Accident Report Form, the P PStmt, the Lee 1st PStmt, the further police statement dated 20 March 2018 self-prepared by Lee (who by then had been promoted to the rank of SIP and served at Tuen Mun Police Station) about the Accident (“Lee 2nd PStmt”, E/477-478), the Kwan PStmt and the Choy PStmt. There were no photographic records and/or sketches. All MCs (including the 3rd MC which D claimed HKPF did not receive) were available before the court for the trial. DoJ’s 26/4/19 Letter clarified that “[full] investigation of an OSH Accident is not necessarily required for a Level 2 OSH incident [which was how the Accident was labelled[37]] according to the [OSH Incidents Protocol]. All relevant documents relating to the OSH aspect of the Accident have been disclosed” (E/479). As seen in Part XXXIII below, no full investigation was done for the Accident which was eventually labelled as a level 2 OSH incident. In light of the documents disclosed by D and available at the trial, and given DoJ’s confirmation of full disclosure of all relevant OSH documents, Mr Sakhrani had not identified what other material OSH “documentary notifications” to which “different individuals” that had not been discovered or disclosed by D, especially in the absence of any application for specific discovery in face of DoJ’s confirmation of full disclosure. 105.I am not convinced there was any material failure to give discovery on the part of D, and see no reasonable basis to draw adverse inference against the testimony of D’s witnesses on such basis. 106.As for Mr Sakhrani’s other general criticisms of D’s witness testimony in paragraph 89(a) and (c) above, ie that Kwan and Chau crafted their evidence to conveniently remember matters that favoured D’s case but to forget things unfavourable to them, and that they carefully ensured they did not leave a paper trail of their foul motives, various illustrations had been given. I propose to deal with those specific matters in my analysis and discussions of the evidence below, and broadly address here Mr Sakhrani’s general criticisms (but I hasten to assure that in doing so I have carefully considered his illustrations). 107.I also note Mr Sakhrani criticised Kwan and Chau for the thinness of their 1st round statement evidence, and for padding up their evidence in their 2nd round after sight of the P 1st WStmt (see paragraph 89(b) above). But before I turn to my observations on Mr Sakhrani’s contention, it is useful to start with the relevant principles on the fundamental function of witness statements. In Ho Wai Tung v Ho Fung,[38] I explained as follows:
108.Here, D’s case was a simple one. There were no eye-witnesses to the Accident, and D denied P’s case on the post- Accident events and claimed nothing untoward happened in relation to P’s resignation and departure from HKPF. I see nothing sinister in D putting forward the Kwan/Chau 1st/2nd WStmts that reflected its straightforward case, and then to raise in supplemental witness statements the positive evidence D wished to give in light of P’s statement evidence in relation to her claim. Mr Sakhrani also complained new points were made in their oral evidence, but I find they were largely attributable to legitimate addition of corroborative detail in response to intensive cross-examination that did not give pause for concern. 109.On balance, I find Kwan and Chau were robust witnesses. Their oral evidence was direct, well-reasoned and neither vague nor didactic. They gave clear evidence with obvious care and quiet confidence, and stood their ground and were consistent in their answers when questioned repeatedly over P’s PI training and the post-Accident events, but exhibited willingness to make concessions where appropriate They carefully distinguished matters of their own knowledge from matters outside their scope of duties, but were nevertheless helpful with information on what they understood might have been the case with reasoned basis for such understanding. Kwan and Chau had years of experience with police recruits under training, and obviously had seen those who excelled and those who had difficulties. In light of my findings above as to P’s Personality, and my analysis and conclusions below on the post-Accident events in December 2013 and January 2014, it was clear Kwan’s and Chau’s evidence about P’s hardships during training and about the circumstances of her eventual departure from the Collage was leavened with mature and experienced insight into P’s concerns, worries and eventual decision. 110.Kwan and Chau were closely cross-examined on their recollection of events. They readily agreed they did not remember some matters that happened about 7 years ago. But they were helpful and relaxed witnesses who were aware of the limits of their recollection, and their evidence was fair, measured and articulate with genuine attempts to recall matters/events. I am unconvinced by Mr Sakhrani’s criticism that they evasively peppered their statement/oral evidence with assertions of inability to recall details. Rather, I accept they were unable to assist on some details because they had truly forgotten (which was unsurprising given that (a) they dealt with many PIs over several years of intakes, (b) each PI would have his/her own issues and/or problems (as Kwan said), and for each intake there were quite a few who dropped out of the College or underwent Re-training) and (c) Kwan and Chau had since left the College and immersed in police work for other police formations), but they were firm on the key points that mattered. I do not think their less than precise evidence on certain matters adversely affected their overall integrity. 111.As for the matters Kwan and Chau did recollect, some parts of their recollection in their statement/oral evidence filled the gaps in the documentary records, and the further information they provided at the trial was largely in response to P’s oral testimony or in response to wide-ranging cross-examination, but again none of these matters gave rise to concern over their overall reliability as witnesses. When at times their evidence was shown to be mistaken/discrepant, or their recollections were faulty, or they were unsure about dates or sequence of events, I have approached these matters with caution (as Mr Sakhrani urged me to), but find they were not so alarming as to give rise to concern as to the quality of their evidence on critical matters. I bear in mind the matters/events they were recalling or endeavouring to recall occurred quite a number of years ago, and at the material time Kwan and Chau would have no particular reason to regard some of those matters/events as significant. On the whole and on balance, I am not persuaded Kwan and Chau were dishonest fabricators of evidence as P asked me to believe. 112.As for Choy and Chan, they were not involved with P at the material time (save that Choy witnessed the taking of the 3/1/14 Stmt). Their evidence was open, balanced and straightforward, and they gave careful and thoughtful answers. They were conscious about the limits of their knowledge, and adopted a responsible approach to giving answers which they could honestly support. In the case of Chan, where he had relevant knowledge, he was able to answer cross-examination questions in a frank, forthright and helpful manner, making clear they were derived from his own knowledge and experience at a time which did not overlap with P’s time at the College. Subject to discussions below, I find Choy and Chan to be reliable witnesses in their limited spheres as they were not involved with P at the material time. 113.Mr Sakhrani asked me to conclude that Kwan, Chau and Tan had corrupt motives to force P’s resignation and to rid P from the College after the Accident. I start by saying that despite the seriousness of P’s complaints against Kwan, Chau and Tan of pushing her out of the College by duress and undue influence and by keeping her in the dark about her entitlements and rights, there were certain matters about P’s case that were not very clear. 114.First, it was not very clear (a) whether P claimed all 3 of Kwan, Chau and Tan together acted in concert to come up with and to implement an evil scheme to oust P from the College (eg Mr Sakhrani submitted “Kwan / Chau / Tan took proactive and swift steps to get rid of P as quickly as possible, failing to explain her rights to her in the process” – see paragraph 88(a) above, or the pleaded claim for exemplary damages that averred “the HKPF, [Kwan], [Chau], and [Tan] unlawfully discriminated and/or aided or abetted each other to unlawfully discriminate [P] ……” – see paragraph 25 of the SoC and paragraph 16(b) above) or (b) whether P claimed it was the concerted effort of Kwan and Chau to oust P from the College (eg Mr Sakhrani put to Kwan under cross-examination that both he and Chau acted in concert but separately pressured P to resign), but Tan failed his own duty to explore with P her sick leave and medical treatment before accepting her resignation for personal reasons at the exit interview (see P’s pleas in paragraphs 14-17 of the SoC – see paragraph 8(b)-(d) above). If P’s case was the scenario envisaged in (a) above, then P essentially alleged a conspiracy by her supervisors at 3 levels of seniority (ie an IP, a CIP and a SP) to concoct an evil scheme that targeted her. If P’s case was the scenario envisaged in (b) above, it was Kwan and Chau who acted in concert against P, but Tan by his own default in handling the exit interview somehow facilitated Kwan’s/Chau’s dastard motives to get rid of P. 115.Secondly, it was also not very clear on P’s case whether in pushing P out of the College, Kwan’s/Chau’s and/or perhaps Tan’s motives (see above paragraph) were to (a) save the “hassle” of having to deal with P who would otherwise have remained at the College to continue with PI training after sick leave with need to make particular arrangements for her left knee condition, eg light duty, or even Postponement (until perhaps after expiry of a long and unknown period of sick leave) or Re-training (perhaps after her surgeries/rehabilitation),[41] or (b) save the trouble that would have arisen when HKPF would have otherwise terminated P’s employment as a PI, eg P’s plea in paragraph 27(6)(b)(i)-(ii) of the SoC that “[by] requiring [P] to resign on a voluntary basis …… HKPF saved one month’s salary …… [or in] the alternative, it would not be necessary for the HKPF to give three months’ notice ……”,[42] or P’s further plea in paragraph 27(6)(b)(v) of the SoC that “[by] requiring [P] to resign on a voluntary basis”, Kwan, Chau, Tan and HKPF could evade the operation of section 48 of the ECO.[43] In my view, (a) and (b) above were factually quite different motives for kicking P out of the College, and P added uncertainty to her case by attributing both to Kwan, Chau and Tan. 116.The lack of clarity in the matters in paragraphs 114-115 above, and the very different factual premises on which the contentions in paragraph 115(a)-(b) above rested gave rise to concern not merely over the context in which the serious allegations were made against Kwan, Chau and Tan, but also over the core “common intent” of Kwan and Chau or Kwan, Chau and Tan who were said to have acted in concert to force P’s resignation and to oust her from the College. 117.Before I look into P’s particular allegations, I find it useful to place them against the overall broad background picture. With so many intakes of PIs over the years at the College, (a) inevitably not all of them would pass out, and (b) it was not uncommon that some PIs would resign and drop out of the College during PI training or would fall back squad and/or delay passing out (ie Postponement and/or Re-training) for various reasons, including physical injuries, failing examinations and/or health/ personal reasons. The statistical information in the Chan WStmt was testament to this. Out of 45 new recruits for PI566, only 35 passed out together with 3 more from previous intake(s) who obviously fell back squad to re-train and eventually to graduate with PI566 (see paragraph 378 below). Squads PI569-571 and PI572-574 of the overall intake of PIs in 2013 also had similar outcomes (see paragraph 378 below). It was clear from these statistics that quite unavoidably HKPF (and hence CIs and assistant CIs) had to train PIs (i) some of whom would eventually resign, fail to pass out, suspend and postpone training, or fall back squad to re-train with a subsequent squad, and (ii) some of whom would suffer physical injuries or would have other reasons for suspending and postponing training until they were better, falling back squad to re-train with a subsequent squad, or even requiring alternative posting.[44] 118.In the circumstances, it was not easy to see why Kwan and Chau and/or perhaps Tan too would single out P from these other PIs, who also had their own injuries or other problems for considering departure, Postponement or Re-Training, to push her out of the College. I cannot see how saving the “hassle” (as Mr Sakhrani called it) of dealing with 1 less PI, ie P (if she remained at the College with her faltered academics, her weak physical training and/or her Accident/injury) would have significantly reduced the workload of the College (and/or Kwan and Chau and/or perhaps Tan too) who would still have to deal with quite a number of other PIs with similar “hassles”. In any event, Kwan, Chau and Tan (who never shied from the fact that the Accident was a work-related incident) had to deal with documenting and external/internal reporting of P’s Accident as an OSH incident, which they attended to despite P’s allegation of having pushed her out of the College. It was even more perplexing to suggest that Kwan and Chau acting in concert would have accused P of feigning her injury and thereby pushed her out of the College on such basis, risking their own positions and names, just to save the “hassle” of dealing with 1 less PI amongst others who also had similar “hassles”. 119.I find this to be especially so when at the material time (a) as seen in findings below, P did not inform Kwan, Chau and/or HKPF she had sick leave granted by Dr J Lam, had MRI left knee done, and was advised by Dr J Lam and UCH’s DOT to have corrective surgery (which would have to be followed by extensive rehabilitation), so Kwan and Chau did not have much information about P’s medical prognosis, her treatment regime and her eventual disability, and they certainly did not have any objective clinical/radiological evidence of P’s injury qua Accident, (b) there might be even more “hassle” should P complain against their conduct as alleged, eg investigation or even litigation, and (c) any financial savings from their alleged conduct (as P / Mr Sakhrani suggested) would not line their own pockets. After all, as Ms Chao submitted, Kwan and Chau (or even Tan) were not P’s employer, did not pay her salary or periodical payments (if any), and would not have been the ones who would eventually offer her position as an IP should she pass out. 120.It was then suggested that Kwan, Chau and Tan had motives to get rid of P because of problems with the Staircase and lack of attention HKPF paid to safety measures, so in the aftermath of the Accident they took proactive and swift steps to oust P from the College as quickly as possible and failed to explain her rights to her in the process so as to avoid blame in relation to the Accident. Again, such contention was not easy to understand. 121.Since Kwan, Chau and Tan accepted the Accident was a work-related incident with the 3/1/14 Form 2 submitted to LD, EC claim/ payment were inevitable and unavoidable. Despite P’s complaints about HKPF’s handling of her EC entitlements, she eventually received EC from HKPF. As for any common law claim based on the allegedly problematic Staircase and the allegedly defective safety measures, pushing P out of the College would not have forestalled any such claim that turned on the Accident and not on continued employment as a PI, which was borne out by P’s present action commenced long after she had left HKPF. As for not explaining to P her rights, I will discuss/analyse P’s claim and make findings below. But I note that as far as Kwan, Chau and Tan were concerned, P only had 9 days’ sick leave on 20-28 December 2013 under the 1st, 2nd and 4th MCs (in respect of which P received full pay), and (as I find in Part XXIV below) P did not submit the 3rd MC to Kwan/HKPF so they thought P was no longer on sick leave when she resigned on 3 January 2014. In any event, it was not easy to see how experienced police officers would be so presumptuous as to think they would be the sole source of information in relation to EC matters that would have been available to P, especially when Kwan/Chau knew the 3/1/14 Form 2 and the Part 1 of the OSH Accident Report Form would be sent to LD, which department would follow-up with P on EC matters. Indeed, LD did promptly write to P by letter dated 20 January 2014 (less than 3 weeks after P’s resignation) (E/480), prompting her to submit her MCs to HKPF to claim periodical payments, to read their guidance pamphlet on handling normal/disputed EC claim, and to contact LD if she had queries. P did not take action on such letter, but had she done so as clearly prompted by such letter, she would have submitted further MCs to HKPF, and HKPF’s Welfare Team (of HKPF’s Personnel Wing) and HKPF’s Finance Division (not Kwan and Chau) would have processed her periodical payments fairly quickly.[45] I could not see how the 3 supervisors would have thought getting rid of P would have “avoided blame in relation to the [Accident]”. 122.It was next suggested that Kwan, Chau and Tan had motive to get rid of P because they would no longer need to train, deal with or liaise with P who might require a long and unknown period of sick leave. But P’s stance on this was uncertain for Mr Sakhrani in paragraph 174 of his written closing submissions contended that “P would likely have completed probation on schedule and more likely than not, have passed out and continued to have been employed by HKPF ……” (my emphasis), and he further put to Kwan during cross-examination that at the material time he must have thought P was doing fine, passing her examinations and only had a “slight injury” that only resulted in 9 days’ sick leave and 4 weeks’ light duty, so she would have recovered. I find P did not submit the 3rd MC to Kwan/HKPF (see above paragraph) and/or tell Kwan/Chau she needed surgery (see Part XXVIII below). At the material time, Kwan/Chau had enquired with P and the orthopaedist at PYNEH’s DOT but were not provided with firm information about P’s treatment/ prognosis. So at the time of P’s resignation on 3 January 2014, the understanding of Kwan/Chau was that P was not on sick leave and had returned to PI training albeit recommended for a few weeks’ light duty. I do not think Kwan/Chau then knew P would have required a “long and unknown period” of sick leave as P now claimed (see paragraphs 8(a) and 88(b) above), but they probably expected P would have needed a bit of time before resuming active physical training. But even if it was believed/ suspected that P would have required a “long and unknown period” of sick leave, and hence (if she wished/requested) likely to have required Postponement or Re-training, she would have been simply 1 out of a quite a few PIs in the same boat (eg 20 PIs out of 135 new recruits for the 2013 overall intake failed to pass out, and there were 10 PIs from previous intake(s) who had fallen back squad to join the 2013 intake – see paragraph 378 below), so there was little reason for Kwan/Chau (and perhaps Tan too) to deliberately rid themselves of 1 “hassle”, and then stoically went on to deal with the other “hassles”. Further, past experience would have told them that as PI training progressed and became more intensive and demanding, the number of PIs who would have hunkered down and persevered would dwindle, ie 15 other PIs (apart from P) out of 135 new PIs for the 2013 overall intake resigned during PI training (see paragraph 378 above). I do not believe P’s supervisors were concerned about the “hassle” of dealing with P had she remained at the College. 123.Then, there was the suggestion that if P was forced to “voluntarily” resign for “personal reasons”, Kwan, Chau and Tan would have saved themselves the trouble of having to explain to other PIs (who were aware of P’s injuries) (a) how injured employees were dealt with and/or (b) why she left, and could instead say P resigned voluntarily for her own reasons. In my view, this suggestion was unrealistic. 124.For (a) above, I do not see why P’s supervisors would have to explain to other PIs how a particular injured PI was handled had she continued in employment, but even if they had to, the other PIs already knew P had difficulties in coping with PI training,[46] and she had the Accident/injury.[47] I see no practical difficulty in explaining to other PIs that P had to be accommodated with light duty, remedial classes, Postponement and/or Re-training (or even alternative posting similar to the case of PI Yeung of the 2012 intake) pending recovery had she stayed on. These modes of accommodation would not have been news to other PIs who were able to share information among themselves and to learn from senior squad mates. Indeed, they would have known that some PIs in their own squads were from earlier intake(s) who necessarily benefited from accommodation by Postponement or Re-training. 125.For (b) above, it was said that Kwan, Chau and Tan would otherwise have been called upon to explain why she left (which explanation they allegedly wished to avoid). This contention assumed that but for the forced resignation, P would have otherwise left HKPF in any event. I am not sure on what basis it was contended P would have otherwise left. It was P’s case that she would not, and it was not put to Kwan and Chau that she would have been asked to leave (ie HKPF would have terminated her employment as a PI) but for the alleged forced resignation. After all, it was all along P’s contention she was forced to resign and was pushed out of the College by her supervisors to save themselves of the “hassle” of having to teach and deal with her had she remained as a PI at the College. In any event, there was no evidence that Kwan, Chau and/or Tan (in contra-distinction to HKPF’s Personnel Wing) had the authority to authorise giving 1 month’s salary or 3 months’ notice to terminate her employment, and I could not see how 1 month’s salary could be paid without authorisation by HKPF’s Finance Division (ie the same division that paid salary and periodical payments to P). It must be remembered that P’s supervisors in chain of command on police matters did not have authority to deal with personnel-related matters, eg (a) Chau sent P’s Resignation Letter to HKPF’s Personnel Wing, which was the division (not Kwan or Chau) that arranged the exit interview by Tan, and (b) the Accident as an OSH matter was reported to a central system and OSH support division, and the 3/1/14 Form 2 for the Accident was sent to “CP (Attn: SP CS L&HM)” of HKPF’s Personnel Wing – see paragraphs 101-104 above) for their onward submission to LD. I find it incredible P’s 3 supervisors would even have contemplated they would be able to persuade HKPF’s Personnel Wing and Finance Division to fall in with any scheme to otherwise terminate P’s employment. In my view, Kwan, Chau and/or Tan would not have been concerned about how to explain to other PIs why P would otherwise have left but for the alleged forced resignation. 126.In the circumstances, I cannot see how Kwan, Chau and/or Tan would have been motivated to concoct the alleged evil scheme and/or to deliberately conceal information about P’s entitlements/rights to force her resignation and to push her out of the College in order to save HKPF (not themselves) 1 month’s salary or 3 months’ notice which would otherwise have been incurred to terminate her employment. This also rebutted the suggestion that Kwan, Chau and/or Tan had motive to evade the operation of section 48 of the ECO for such argument also must have been premised on the contention that (a) Kwan and Chau (and/or perhaps Tan too) intended to terminate P’s employment in any event but their hands were tied by section 48 of the ECO as a result of P having suffered the work-related Accident/injury, and (b) they thought a manipulated “voluntary” resignation would have enabled them to sidestep the restriction in section 48 of the ECO. But as explained in the above paragraph, such anterior premise that Kwan, Chau and Tan would otherwise have terminated P’s employment as a PI stood on weak legs and had no merit. 127.Mr Sakhrani also complained that D did not explain why on his case that P resigned voluntarily “either of Kwan/Chau/Tan would not have asked [P] for one month’s salary in lieu” as provided for under the employment contract. It was said there was no discussion or record as to why HKPF would forego or waive this requirement, so it was likely there was no voluntary resignation. 128.As seen in Part XXXII(c) below, when Chau received the Resignation Letter via the general registry at the College, he arranged to have it faxed to HKPF’s Personnel Wing, and it was the Personnel Wing that arranged the exit interview with Tan. I bear in mind that on D’s case it was P’s own request in the Resignation Letter for her resignation “with effective from 3rd January 2014” (E/448), and I see nothing sinister in HKPF’s Personnel Wing accommodating such request to arrange exit interview on the same day for closure of P’s employment. As explained in paragraph 125 above, I see no basis to suggest that Kwan, Chau and/or Tan (despite their chain of command in PI training) were authorised to deal with employment contract or personnel-related matters. It was not even established at trial that Kwan, Chau and/or Tan were aware of the terms of P’s employment contract, and it was not suggested they or any of them had influenced HKPF’s Personnel Wing to expedite the exit interview. In my view, 2 matters were of note:
129.The final suggestion was that Kwan, Chau and Tan pushed P out of the College because they were motivated to (a) evade payment of periodical payments under section 10 of the ECO, and (b) avoid payment of punitive or exemplary damages which the District Court might award to P for breach of the DDO. In respect of (a) above, despite D’s stance that P voluntarily resigned, D eventually did pay periodical payments. According to the P 1st WStmt, on 5 March 2015 D paid P periodical payments amounting to $397,036.36 (F/744A-744B), and on 14 September 2015 D further paid P periodical payments amounting to $702 (F/744C-744D), and on/about 21 April 2016 D notified P to receive periodical payments for 19 February 2015 to 4 November 2015 in the sum of $253,612.80 at HKPF’s Finance Division (F/744). I cannot see how the 3 supervisors would have thought HKPF could have “evaded” payment of periodical payments when they accepted the Accident was a work-related incident that was reported to HKPF’s OSH support division and to HKPF’s Personnel Wing for onward submission of the 3/1/14 Form 2 to LD. Indeed, I doubt whether they had in mind the niceties of periodical payments at all when P received full pay for 9 days’ sick leave as known to them, and as far as they were concerned, she was no longer on sick leave on 3 January 2014 (see paragraph 121 above). I rather think that upon acknowledgment that the Accident was a work-related incident, they left the actual niceties of calculation and payment of periodical payments (if any) to be dealt with by the appropriate division/wing of HKPF. 130.It appeared from Mr Sakhrani’s written submissions that the complaint about non-payment of periodical payments was not evasion; rather, it was said the periodical payments were not paid until 5 March 2015. Mr Sakhrani suggested that D was silent as to why periodical payments were not paid earlier, which he said was suggestive that Kwan, Chau and Tan had not explained to P her rights/entitlements to EC, and that such reticence reflected their motive of pushing P out of the College. I note P received full pay for her 9 days’ sick leave on 20-28 December 2013, and (as I find in Part XXIV below) the 3rd MC was not submitted to Kwan/HKPF (see also paragraph 122 above), so there were no unpaid periodical payments as at 3 January 2014 when she resigned. No further MCs were submitted to HKPF until 13 November 2014, and upon HKPF reviewing P’s claim (and by then P had left HKPF for 10 months) by obtaining MNR concerning the Accident/injury from RTSKH, PYNEH and UCH in January/February 2015, periodical payments were paid to P on 5 March 2015 (see footnote 45 and paragraph 129 above). In my view, this quite explained why periodical payments were paid in March 2015. After all, in the absence of MCs submitted to HKPF, there was simply no basis for HKPF to pay periodical payments. 131.I will discuss and make findings below as to whether and if so what Kwan told P about EC entitlements on 3 January 2014. But even assuming Kwan, Chau and/or Tan did not tell P about her rights/ entitlements to EC as P alleged, I note:
I find it quite implausible that as at 3 January 2014 Kwan, Chau and/or Tan would have believed P would not have found out her entitlements to periodical payments even if she had further sick leave. I reiterate my discussions and findings in paragraph 121 and footnote 45 above. It was also difficult to see how it would have benefitted HKPF (let alone Kwan, Chau and/or Tan who were not the ones to pay periodical payments in any event) to merely “delay” but not “evade” periodical payments. I am not persuaded there was any dire motive by Kwan, Chau and/or Tan to oust P from the College on the basis alleged. 132.In respect of (b) above, suffice to state here that I find there was no breach of the DDO and hence there were no punitive/exemplary damages to avoid. In any event, it would be naïve to think that seasoned police officers such as Kwan, Chau and/or Tan would have pushed P out of the College on the blithe assumption that a forced letter of resignation would forestall future troubles (for them personally and not just for HKPF) from P complaining of duress and undue influence. This was amply illustrated by P’s present claim premised on the post-Accident events. This, in my view, would have been a far greater “hassle” (eg Kwan and Chau having to give statement/oral evidence years of the events) than simply let P carry on with PI training if she could and consider alternatives if she could not, which alternatives (eg Postponement, Re-training and/or alternative posting) were not unusual in PI training and which Kwan, Chau and Tan had past and then on-going experience. 133.In all, I am not persuaded the motives P attributed to Kwan, Chau and/or Tan were realistic and/or convincing. In my view, they had little incentive to push out 1 PI (ie P) only to deal with other PIs who had similar problems of considering to drop out, probably failing to pass out, and/or needing Postponement or Re-training, and to put themselves at risk of complaint, investigation and/or litigation but not actually saving HKPF expense and/or trouble. (c) Absence of Tan 134.Mr Sakhrani submitted Tan’s absence as witness in the present action was likely to be deliberate, and asked this court to draw adverse inference against D. It was said Tan could have given useful evidence about the exit interview, and in line with Chan’s evidence Tan (who must have been informed as to what had happened to P on 20 December 2013) should have asked P her underlying or root reason for her resignation, and consequently he ought to have found out she was not really resigning “for personal reason” in which case he should have complied with HQO12/11 and the ECO. It was also said that since there was no apparent discussion between Kwan/Chau and P as to her EC entitlements, it cried out for Tan to give evidence as what he did or should have done when P came to see him. 135.I have in DBS Bank (Hong Kong) Limited v Sit Pan Jit explained the maxim omnia praesumuntur contra spoliatorem and/or the principles for drawing adverse inferences by reason of absence or silence of a witness who might be expected to have material evidence to give on an issue in an action, which adverse inferences might go to strengthen the evidence on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.[48] I rely on those principles without repeating them here. 136.I bear in mind that before the court would be entitled to draw the desired inference, there must have been some prima facie evidence adduced by the other party on the matter in question that was credible in the first place, then in the absence of credible explanation of the absence or silence of the relevant witness, the court might (but was not necessarily obliged to) take into consideration the potentially detrimental effect of such silence or absence.[49] 137.Obviously, whether any adverse inference should be drawn must be considered in the context of all relevant circumstances in each case. As I explained in Heung Wing Yan v Hangway Housing Management Limited & ors,[50]
138.The Court of Appeal in Tjang Siu Thu v Profield Construction Engineering Limited & anor[51] gave similar guidance. McWalters JA observed as follows:
139.Here, D did not explain why Tan was unavailable to give statement/oral evidence at trial. But Ms Chao submitted it was unnecessary for D to call Tan because P had not pleaded any or any sufficient basis for alleging Tan owed any duty to P to discuss and record the matters in footnote 9 above in the Record of Service. In my view, other than a broad plea in the SoC that there was an implied duty under the contract of employment between P and HKPF and/or a non-delegable duty on the part of HKPF as employer to “prevent unlawful and inappropriate conduct by its employees in their treatment and dealings with injured persons such as [P]”, and a further averment in the Reply that Tan failed to offer and discuss with P, properly or at all, as to any “reasonable accommodation” to be provided, or continued to be provided, on a temporary basis, there were sparse material facts for any specific duty on the part of Tan to elicit the root or underlying reason for P’s resignation at the exit interview, and further to record it in the Record of Service, which seemed to be the focus of Mr Sakhrani’s submissions at the trial for urging this court to draw adverse inference from Tan’s absence. 140.But even if there was no satisfactory reason as to why Tan was not called, the fact he was not called was only 1 of the factors to be considered. The court had to consider the totality of the evidence to see whether P had established the primary facts that would allow an adverse inference to be drawn in the sense that such inference logically flowed from those facts. This could be illustrated by P’s plea that Tan failed to discuss and to record in the Record of Service “[the] reason for the [Resignation Letter] to be written in manuscript”. Chau testified (as corroborated by the fax header/footer on the Resignation Letter – see Part XXXII(c) below) that the Resignation Letter was faxed to HKPF’s Personnel Wing for an exit interview to be arranged. There was simply no evidence that other than the Record of Service (the contents of which, according to Chau, were filled in by some clerical staff) Tan had sight of other documents such as the Resignation Letter or was aware it was written in manuscript. In light of the absence or poor quality of necessary primary facts, I am unable to draw any adverse inference from Tan’s absence that D was in default in that Tan failed to elicit/record the reason for the Resignation Letter to be written in manuscript. In any event, it was not shown to be necessary or even usual for such reason to be documented in the Record of Service itself (which document, as P explained, was also given to her so that she could show future prospective employers – see paragraph 62 above). 141.As evident from paragraph 134 above, P largely relied on Tan’s role as “safety officer in charge of risk assessments”, his awareness that P sustained the work-related Accident and his awareness of P’s MCs (including the 3rd MC) as the relevant primary facts to suggest this court should infer against D that Tan failed to ask P the underlying or root reason for her resignation, and thus failed to comply with HQO12/11 and the ECO. The other essential primary fact was the alleged involuntary nature of the Resignation Letter. This raised 2 questions: (a) the quality of such primary facts, and (b) the pertinence of such primary facts to the advocated inference, ie whether the suggested inference logically flowed from those facts. These matters will be discussed with findings made in Parts XXXI(d) and XXXII(d) below, but suffice to state here I am not prepared to draw any adverse inference against D as Mr Sakhrani suggested. IV. ISSUES ON LIABILITY 142.The issue of liability loomed large in this case for matters on quantum necessarily followed from the findings on the issue of liability. There were 2 aspects in relation to the issue of liability, ie the Accident and the post-Accident events. Ms Chao helpfully posited the following sub-issues:
V. P’s PRE-EXISTING CONDITIONS 143.Save for the pre-existing conditions discussed below, it was said that P’s previous general health was satisfactory. She did not smoke or drink alcohol. There was no family history of psychiatric illness, and P reported to the Psy Experts she herself had no history of psychiatric illness or prolonged change in mood prior to the Accident. She did not have chronic disease (other than asthma) or previous major surgery.[52] P was right-handed, but was not a swimmer (see PT Record referred to in paragraph 171 below). I would briefly mention P’s other pre-existing conditions before turning to her previous left knee condition. (a) Asthma 144.According to the Psy and the Ortho 1st Jt Reports, P suffered asthma since childhood, requiring “puffs” on need-to basis. The progress note dated 9 May 2014 and the discharge summary dated 20 May 2014 by UCH’s DOT (G/932 and 918-920) noted P had “asthma, Last attack >5yrs ago”,[53] and UCH’s occupational therapy progress note dated 27 November 2014 (G/928) recorded as part of P’s past history “asthma – prn [pro re nata or as needed] ventolin; very minor attacks with change of weather recently”. At the time of the Psy Exam in May 2018, P took oral/inhaled medications for her asthma. 145.P gave evidence under cross-examination that she only had mild asthma when young, probably when she was in primary school. I find that unlikely. If P had her last asthma attack more than 5 years before 20 May 2014, she probably had such attack when she was in the 1st/2nd SS (probably sometime after the 2nd Episode in 2006 and before May 2009). Otherwise, if P’s last asthma attack was when she was a primary school student, MNR would probably have stated it happened more than 10 years ago. In my view, P was anxious to downplay her chronic asthma illness. She was at pains to inform the Psy Experts that her asthma did not affect her prior to the Accident and that she was still able to participate in sports with no significant impairment, and she testified that asthma was not a problem for her before she entered the College, and that she only had worsening of her asthma after the Accident which she attributed to lack of exercise. 146.I note with interest the consultation notes by UCH’s anaesthesia department dated 18 March 2014 for pre-operative anaesthetic assessment (G/929) recorded that as part of P’s past history she had “asthma – prn [pro re nata or as needed] Ventolin, FU [follow-up] TKOH Med [Medicine]. Last admission for attack was >5yrs ago with associated URI [upper respiratory infection]” (my emphasis). Thus, P’s last asthma attack was not a simple one that resolved with ventolin puffs for she actually required hospital admission for treatment. (b) Nasal allergy 147.According to the Ortho 1st Jt Report, P reported nasal allergy that required follow-ups at ENT clinic (which clinic P said under cross- examination was at TKOH). The discharge summary dated 19 September 2015 by TKOH’s department of medicine in relation to P’s hospitalisation via TKOH’s AED for “migraine headache” noted past medical history of “[allergic] rhinitis” with scheduled follow-up on 19 August 2016 at TKOH’s ENT clinic (general) (“TKOH Med Discharge Summary”, G/910-911). But there was no mention of nasal allergy (in contra-distinction to asthma) as P’s past medical history in the consultation notes dated 18 March 2014 by UCH’s department of anaesthesia (G/929), the progress note dated 9 May 2014 by UCH’s DOT (G/932), the discharge summary dated 20 May 2014 by UCH’s DOT (G/918-920), and the occupational therapy progress note dated 27 November 2014 by UCH (G/928). P claimed under cross-examination that her nasal allergy was a more recent affliction, but she did not say when she started to have such problem. But since P put down “nose allergy” in the Health Declaration dated 30 July 2013 referred to in paragraph 332 below, it appeared such allergic condition pre-dated P’s enrolment at the College. Although MNR revealed P had follow-ups at TKOH’s ENT clinic (general) scheduled on 9 January 2015 (G/912-914) and 19 August 2016 (G/911), no MNR on P’s follow-ups at TKOH’s ENT clinic for her nasal allergy was available at the trial. (c) Eye floaters 148.According to the Ortho 1st Jt Report, P had “eye problem (?floater)” that required follow-ups at the eye clinic. No other particulars were available save for a reference to such in the TKOH Med Discharge Summary dated 19 September 2015 as part of P’s medical history with scheduled follow-up with TKOH’s “OPH/GEN” (ophthalmology/general) clinic on 8 April 2016 (G/910-911). The available MNR showed P also had follow-ups with TKOH’s eye clinic (general) on 5 November 2014 (G/912-913) and 10 April 2015 (G/914). In my view, it was unclear whether P’s eye floaters appeared before or after the Accident, but in any event such condition had no relevance to the Accident and/or the post- Accident events. (d) Heart conditions 149.During medical examination for the purpose of recruitment as PI in July/August 2013, P was discovered to have abnormal ECG, and further investigation revealed the presence of incomplete right bundle branch block. This was considered to be a relative benign condition for which P did not require treatment. P’s incomplete right bundle branch block would be discussed in further detail in paragraphs 349-350 and 406-410 below. 150.P’s MNR in 2014 shortly after the Accident[54] and the Ortho 1st Jt Report noted “mitral valve prolapse” as part of P’s past medical history. The Chen Report referred to in paragraph 349 below that was obtained during the recruitment process stated “[mitral] valve prolapse was not definite”. 151.As the name “mitral valve prolapse” suggests, this condition appears to be a type of heart valve disease that affects the flaps of the mitral valve (ie valve between the left heart chambers) such that they bulge backward (ie prolapse). There was no available evidence as to the symptoms, prognosis and/or effect of such disease before this court, but since P had undergone an exercise stress test and had echocardiogram done by cardiologist Dr Victor Goh, which results were basically normal (see paragraph 349 below), I assume “mitral valve prolapse” did not have much effect on P. (e) Left patella dislocations and left knee condition 152.P 1st WStmt According to the P 1st WStmt, P injured her left knee twice in 2003 and in 2006:
For convenience, I shall refer to P’s 1st and 2nd episodes of left patella dislocation in 2003 and in 2006 in this Judgment as “1st Episode” and “2nd Episode” respectively. 153.1st Episode According to the medical reports dated 24 December 2015, 30 March 2016 and 19 May 2017 by UCH’s DOT, P was first seen at UCH’s DOT on 5 December 2003 after the 1st Episode in October 2003, and she had regular follow-ups with UCH’s DOT “for her left patella condition since then”. P gave similar account of the 1st Episode to the Experts. The Ortho Experts recorded in the Ortho 1st Jt Report that the 1st Episode occurred when P (then 12 years old studying Form 1) was playing handball, and on landing after jumping up she felt pain in the left patella with dislocation and self-relocation. The Psy Experts recorded in the Psy Jt Report that P sprained her left knee when playing handball. P then attended UCH’s AED (Ortho 1st Jt Report) and was told her left knee cap had dislocated and then relocated to its normal position (Psy Jt Report). Anyway, P reported the condition was not severe so MRI was not done (Ortho 1st Jt Report), and she had physiotherapy for 2-3 months without need for operation (Ortho 1st and Psy Jt Reports). P told the Experts she had recovered and had returned to normal sports (including handball for her 1st SS team) afterwards with no impairment of her ability to play sports. 154.2nd Episode For the 2nd Episode, P told the Ortho Experts she was well until January 2006[55] (ie until she was 14 years old studying Form 3) when she suffered a similar dislocation and self-relocation of her left patella as “she ran fast (in a straight line manner)” without vigorous action, tripping or being bumped by others. P confirmed such manner of injury during cross-examination. P had pain in the left knee and attended TKOH’s AED for treatment, but no MRI was done. P agreed she was diagnosed to have left patella dislocation for the 2nd Episode. P testified under cross-examination that after initial treatment at TKOH’s AED, she did not further attend TKOH for her left knee, and was referred back to UCH’s DOT for follow-ups. P told the Experts she received physiotherapy for a short period without need for operation, and then resumed playing handball for her 1st/2nd SS team and playing basketball for the HKUST team (Ortho 1st Jt Report) with no impairment of ability to play sports (Psy Jt Report). P told the Psy Experts she used to train her own physical fitness through sports activities and by walking up the hill when she went to school (which also helped her save on minibus fare). According to the Ortho 1st Jt Report, P told the Ortho Experts that “…… despite playing these sports, she did not have pain or further patellar dislocation in her left knee until the time of the subject injury in 2013 ……”, ie the Accident (my emphasis). 155.P’s case It was P’s case/evidence that she had fully recovered from the 1st/2nd Episodes, that she was in robust good health, and that she was asymptomatic (ie she had no knee pain prior to the Accident despite playing vigorous sports). She denied under cross-examination that:
156.These were significant allegations/denials because, as seen below, there formed the core disputes between the parties and also between the Ortho Experts over (a) the vulnerability or otherwise of P’s left knee during the period from the 1st/2nd Episodes to the Accident, and (b) the causation/diagnosis of P’s left knee injury at the time of the Accident which, according to the medical reports dated 24 December 2015, 30 March 2016 and 19 May 2017 by UCH’s DOT, was the last of P’s “…… [3] episodes of left patella dislocation …… recorded since 2003”, with Dr Lam opining the Accident was caused by severe trauma in the course of P descending the Staircase, and Dr Wong opining it was a non-traumatic incident due to P’s pre-existing left knee condition. Such disputes went directly to heart of the issue on liability. 157.Evidence Given the significance of such core disputes (which were already elicited at the pleadings stage of the present action) and the underlying medical issues, one would have expected all objective contemporaneous documents to have been discovered/adduced to facilitate the Experts giving comprehensive opinion and the court making factual findings. 158.But MNR of UCH’s DOT in relation to P’s follow-ups concerning her left knee for the period from the 1st/2nd Episodes to the Accident were not made available to the Ortho Experts and/or adduced at the trial even though the medical report dated 1 April 2015 by UCH’s DOT clearly stated P followed-up with UCH’s DOT “for recurrent left patella dislocation since 2003”. This gave rise to concern when Dr Lam testified under cross-examination that the Ortho Experts had no record of P having volunteered to them (a) she had follow-ups with UCH’s DOT after the 2nd Episode and/or (b) she attended Chinese medical practitioner at TKOH’s HoHCS and reported left knee pain, which matters were also not addressed in the P 1st/2nd WStmts. Dr Lam was left to distill P’s complaint of left knee pain after the 2nd Episode from his own review of the available MNR including those of TKOH’s HoHCS (see paragraphs 194-199 below). Whilst there was no evidence D sought specific discovery of MNR of UCH’s DOT, I bear in mind it was P (i) who carried the legal burden of proof in face of (1) D’s pleaded challenge to her case (see paragraphs 12 and 156 above), (2) Dr Wong’s countervailing expert evidence and (3) other pertinent factual evidence (which I will analyse/ discuss below), (ii) who had the obligation to give discovery of relevant documents on Peruvian Guano basis, and (iii) whose consent was required for direct access to such MNR. I also note P had been quiet in her statement/oral evidence and in her account to the Ortho Experts about her continued follow-ups for her left knee condition at UCH’s DOT for more than 10 years prior to the Accident, a matter well within P’s own knowledge. 159.The absence of such MNR by UCH’s DOT was not without significance because (as P must have known) the resultant inability to test P’s testimony against contemporaneous/objective documentary evidence meant the core disputes on liability turned on assessment of the credibility/reliability of P’s assertions since, quite simply, D could not have adduced any factual evidence in relation to P’s past health. As seen in paragraphs 152-154 above, P’s statement/oral evidence and her account to the Experts / Dr J Lam all served to (a) highlight her alleged good recovery from the 1st/2nd Episodes via conservative treatment without surgical intervention such that she was able to fully resume vigorous sports, including team sports like handball (said to be P’s favourite sport – see the PT Record referred to in paragraph 171 below) and basketball, both of which ballgames “…… required high physical demand on the knees ……” (according to Dr Lam) “at high level” (according to P’s account to Dr J Lam as recorded in his medical report dated 22 February 2016 (C/300-301)), and (b) downplay the “recurrent” nature of her left patella dislocations (see paragraphs 175-179 below) and the need for corrective surgery to resolve such condition (see paragraphs 180-185 below). P’s efforts as to (a)-(b) above were to (i) bolster her case that the pre-existing condition of her left knee was satisfactory and did not cause / contribute to the alleged trauma-caused Accident, and (ii) feed the factual assumption Dr Lam relied upon for his opinion that P’s left knee had good functionality prior to the Accident. In assessing P’s evidence on these matters, I cannot ignore the fact that objective and contemporaneous pre-Accident MNR concerning follow-ups on P’s left knee were not available. 160.In the absence of such MNR concerning P’s follow-ups with UCH’s DOT in relation to her left knee, it would be necessary to go through other MNR that were available at the trial to glimpse (if possible) what happened medically between 2006 and 2013 with the result that it was not possible to make all findings fit together. Some anomalies remained, and where this was so I have made findings on the evidence considered as a whole. 161.There was also paucity of other evidence to show P vigorously played handball and basketball in the years before the Accident, eg there were no photographs, medals/cups/banners (or photographs thereof) or school yearbooks (especially when P claimed to be on the school handball team in 1st/2nd SS and had won competitions – see PT Record in paragraph 171 below, and on the university basketball team at HKUST – see paragraph 154 above). Mr Sakhrani complained that D did not seek specific discovery of these documents, and urged this court to carefully consider why P would need to lie about playing handball at school and winning awards if this were not the case. But I find myself unable to attach fault to D and I cannot say there was no interest to be served by non-disclosure in light of the matters in paragraphs 158(i)-(ii) and 159 above applicable mutatis mutandis. On the whole, I find there was no convincing explanation about the paucity of such documentary evidence. 162.Overview Having considered the totality of the evidence, I find on balance that for reasons explained below P had given an overly robust picture of her left knee condition prior to the Accident, and in fact her left knee/patella was more symptomatic and vulnerable than she would have liked this court to believe. Further, I am not persuaded P was still able to vigorously play handball and basketball being team sports that involved high physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres “at high level” without pain/ discomfort (especially after the 2nd Episode), and I find/infer on balance that more likely than not P was less sporty and had less functionality than she claimed. 163.In coming to the above conclusion, I bear in mind not just the overall unreliability of P’s evidence in relation to the 1st/2nd Episodes and her left knee condition thereafter, but also take into account (a) P’s pre-existing structural defects that included (i) bony structure factors, eg her left sulcus angle was almost flattened and she had left trochlear dysplasia (ie shallow trochlear groove), and (ii) soft tissue factors, eg left thigh muscle wasting and loose/lax knee ligaments, and (b) other general factors, eg non-operative management of recurrent left patella dislocation after the 2nd Episode and P’s sports activities (albeit to lesser extent than P alleged) that would, as D contended and Dr Wong opined, result in patella instability, which in turn could weaken the connective tissues (ie muscles, tendons and ligaments) and cause recurrent patella instability events (ie patella dislocations/subluxations). 164.Findings on 1st Episode I accept on balance the 1st Episode of left patella dislocation happened as per P’s account in paragraphs 152(a) and 153 above, I find it likely that P twisted her left knee upon jumping up and landing during manoeuvres while playing handball. As seen in paragraph 172(a)-(b) below, Dr Lam opined it was the twisting motions in team sports (eg quick-pivoting manoeuvres in handball and basketball) that posed particular risk for patella instability/dislocation. 165.Findings for period after 1st Episode I accept on balance that after the 1st Episode P received physiotherapy for 2-3 months, and since then she attended regular follow-ups with UCH’s DOT. In my view, such regular follow-ups were orthopaedically necessary and hence scheduled by UCH’s DOT because of likely recurrence of left patella instability/ dislocation. Both Ortho Experts agreed that a history of patella dislocation in childhood meant a considerable (according to Dr Lam in the Ortho 1st Jt Report) or high (according to Dr Wong in his evidence-in-chief) chance of recurrent dislocation in the course of the patient’s lifetime. In the Ortho 1st Jt Report Dr Lam pointed to medical literature[56] that showed “…… there is a rather high chance of recurrence of dislocation after the first dislocation ……”, and in the Ortho 2nd Jt Report he opined that most patella dislocations occurred in relatively young patients under the age of 17-20 years “…… when the joints are usually laxer / more flexible + muscles are less strong ……”, and that patients who had previous episode of dislocation would have higher chance of further dislocation. 166.But Dr Lam testified that notwithstanding such medical literature, this “…… must be individualised ……” so that after good rehabilitation and “…… [suppose] …… the muscles remained strong and [the patient was] reasonably sporty, …… then maybe she might not dislocate the knee again in her lifetime ……” On such basis, Dr Lam claimed “...... the test of the pudding is in the eating, so the functional and the clinical correlation that [Dr Lam has] stated in the [Ortho 1st Jt Report] [he thinks] are more important than the so-called bony factors ……” In my view, 3 matters were of note in respect of Dr Lam’s opinion:
167.Taking the point in paragraph 166(c) above first, the risk factors identified for recurrent instability or recurrent ipsilateral dislocation after first-time or primary patella dislocation included (a) female sex, (b) younger age (eg age less than 18 years at the time of first dislocation), (c) immature physes, (d) sports-related injuries, (e) patella alta, (f) trochlea dysplasia, and (g) elevated TT-TG distance.[57] It was also said that “patients younger than 25 years with trochlear dysplasia have a 60 to 70% risk of recurrence by 5 years” (D/368). When P suffered the 1st Episode, she clearly satisfied the risk factors in (a)-(d) above. Although the Ortho Experts eventually agreed there was no patella alta (see paragraphs 289-292 below), P had trochlear dysplasia and elevated TT-TG distance. This was borne out by the Discharge Summary dated 20 May 2014 by UCH’s DOT (G/918-920) that recorded the pre-operative CT scan done on 18 February 2014 (see footnote 150 below) showed the following:
It was also significant that the factors in (e)-(g) above were all bony and not functional factors, and trochlear dysplasia appeared to have been particularly emphasised. In considering the risk factors for further dislocation after first-time or primary patella dislocation, the medical literature did not refer to the factors of post-dislocation rehabilitation and functionality that Dr Lam relied on. Further, true to the medical prediction in the literature, P had the 2nd Episode (ie recurrent patella dislocation) under 5 years in 2006. 168.On balance, I find/infer that the doctors at UCH’s DOT (who were orthopaedists) must have been aware of the higher risk of recurrent patella dislocation, especially as they must have known P satisfied the risk factors in (a)-(d) above,[59] but in the absence of relevant MNR of P’s follow-ups at UCH’s DOT it was unclear whether the orthopaedists there knew the risk factors in (e)-(g) above. Given that Dr Lam opined in-chief that P’s muscles during childhood would be quite weak (see also footnote 59 above), I find on balance the orthopaedists at UCH’s DOT did tell P she would have higher risk of further dislocation, which nicely explained (a) their plan of management to monitor P’s left knee by having regular follow-ups and (b) P’s diligent attendance of such regular follow-ups. P tried to downplay the significance of such follow-ups by saying that she was young then and that she was brought by her family members to attend such follow-ups because they thought she should take advantage of the availability of such low-cost consultations. But whatever might have been the motives of P’s family members, what mattered was the orthopaedic management in scheduling regular follow-ups (as supported by the risk factors for recurrence discussed in paragraph 167 above). I find it improbable that the orthopaedists at UCH’s DOT would squander scarce public resources in scheduling unnecessary follow-up consultations if P had fully recovered with vigorous participation in sports that, according to Dr Lam, might even suggest “…… maybe she might not even dislocate the knee in her lifetime ……” (see paragraph 166 above and paragraph 170 below). 169.After the initial dislocation in the 1st Episode, P was managed non-operatively with a period of rest to allow for healing, which followed by rehabilitative conservative treatment (ie physiotherapy appeared from the above medical literature to be the mainstay of treatment for first-time or primary patella dislocation) for 2-3 months, presumably to strengthen the muscles in the thigh and around the knee to help keep the left patella from sliding out of the trochlear groove. 170.But even though Dr Lam acknowledged that P in her youth had loose/lax ligaments, flexible joints and weak muscles (see paragraph 165 and footnote 59 above) and her musculoskeletal structure had yet to mature, he opined that after sufficient rehabilitation with physiotherapy, her muscles would strengthen as she grew older and/or “…… if she really did sports ……” It was Dr Lam’s opinion that the more exercises/sports a patient did to strengthen the muscles to protect a previously dislocated patella, the greater would be its strength/endurance, so it would not further dislocate unless there was some severe trauma, and in his view, ordinary activities without trauma (such as running in a straight-line) would not lead to recurrent dislocation. Dr Lam was constrained to acknowledge that such opinion when taken to its logical conclusion would have meant a patient who suffered first-time or primary patella dislocation would not have further patella dislocation throughout his/her lifetime from engaging in ordinary activities with no particular trauma (eg running in a straight-line). 171.But apart from P’s account that she had physiotherapy for 2-3 months and was well afterwards, MNR on P’s conservative treatment and the status of her rehabilitation afterwards were not available. Turning to other evidence, I find on balance P continued to play sports (especially handball) from 2003 to 2006, which was borne out by an undated record which I find to have been made by P’s physical training instructor (who was neither Kwan nor Chau) during PI training at the College (F/735, “PT Record”):
Although the PT Record erred in stating the 1st and 2nd Episodes (which actually happened in 2003 and in 2006) respectively occurred in 2005 and in 2009, it recorded (a) P played handball, (b) she became the handball team captain in secondary school, and (c) they won the 3rd runner-up in interschool competition in 2005. I find on balance it was P who gave such information to the physical training instructor. This showed P was still playing handball in 2005, which in my view also explained why she required regular monitoring by UCH’s DOT. As we now know, the 2nd Episode occurred in January 2006. 172.Despite P’s claim that the 1st Episode had no impact/ restriction on her subsequent activities, and she went on to play vigorous sports (including handball) at a high level (including competitions), I am unconvinced that (1) P’s account accurately reflected P’s functionality/ recovery and/or (2) P’s left knee condition had stabilised between 2003 and 2006:
173.Findings on 2nd Episode According to P’s own account (which on balance I accept), the 2nd Episode happened when she “ran fast (in a straight line manner)” without any trauma (eg twisting of left knee) and felt pain in her left knee, which transpired to be another left patella dislocation (see paragraphs 152(b) and 154 above). Such accident mechanism (especially in the context of P’s allegation that her left knee was problem-free during 2003-2006 despite playing vigorous sports) did not sit with Dr Lam’s opinion in paragraphs 166, 168 and 170 above, ie there would not be further dislocation without severe trauma after a primary patella dislocation even if (as in the case of P) there was higher chance of recurrence after first-time dislocation (see paragraph 165 and 167-168 above). So, quite unsurprisingly, Dr Lam in his oral testimony expressed reservations over P’s account of the 2nd Episode, saying “…… [he thought] the description of a straight line running, now based on the anatomy, theoretically, it’s very unlikely that the kneecap will dislocate ……”, “…… you know, this is not the mechanism ……” But in my view, Dr Lam had no factual basis to query the factual assumption given to him about the mechanism of the 2nd Episode when P herself confirmed such mechanism both in her statement evidence and in her oral evidence. 174.So Dr Lam was constrained to accept in-chief that if the 2nd Episode did happen as P alleged (and I have found it did), “…… it would probably mean that after the [1st Episode], after 3 years of rehabilitation[60] and then the muscles are still rather not as strong ……” in 2006 when P was 14 years old, which “……would have explained why she would dislocate [again] after a relatively simple kind of mechanism ……” This echoed my conclusion in paragraph 172 above that after the 1st Episode, P’s left knee could not have been as strong and robust as she would have liked this court to believe despite conservative treatment (ie rehabilitative physiotherapy), further musculoskeletal development and sports activities (eg handball) in the intervening years between the 1st and 2nd Episodes. In my view, the very occurrence of the non-traumatic 2nd Episode just over 2 years after the 1st Episode spoke of continued underlying patella instability. 175.Findings on “recurrent” dislocations I find on balance that when P sought treatment for the 2nd Episode (ie almost 8 years before the Accident), P learned from her treating orthopaedists at UCH’s DOT (if not from the doctor at TKOH’s AED) that she had “recurrent” left patella dislocation. The discharge summary by PYNEH’s DOT dated 21 December 2013 (ie after the Accident) (G/909) gave “[recurrent] L [left] patella dislocation FU [follow-up] UCH” as P’s “PMH” (past medical history) and not as her “HPI” (history of present illness). So quite plainly the orthopaedists at UCH’s DOT regarded the 2nd Episode as “recurrent” and so recorded in their MNR to which PYNEH’s DOT had access when P was admitted to PYNEH’s orthopaedic ward on the day of the Accident. Further, both Ortho Experts were in agreement that once there was a 2nd patella dislocation, the orthopaedic diagnosis would be “recurrent” dislocation. There was no or no reasonable basis to believe the orthopaedists at UCH’s DOT would have thought otherwise. 176.Dr Lam testified in-chief that surgery to stabilise the patella was a “normal”, “usual” or “routine” treatment option for recurrent patella dislocation. Dr Wong agreed in-chief that soft tissue realignment operation offered by UCH’s DOT after the 2nd Episode was a form of corrective surgery aimed to prevent further recurrence of patella dislocation (see paragraphs 230-231 below). Although Dr Lam testified that it could not be predicted with certainty whether a previously dislocated patella might or might not actually dislocate again in future (see paragraph 166 above), which in my view was not very relevant for the present purpose since treating orthopaedists practised prudent preventive medicine rather than predictive forensic divination as to how the future would actually turn out, Dr Lam frankly agreed “…… there may be a higher chance of dislocation without surgery ……” Indeed, Dr Lam said in-chief it was normal/usual for a treating orthopaedist to advise the patient with recurrent patella dislocation about conservative and surgical treatment options as follows: “…… [you] can do surgery to stabilise it, or the other way you can do conservative treatment with strengthening of muscles, sometimes bracing for a while and then strengthen the muscles, let the soft tissue heal, but there may be a higher chance of dislocation without surgery ……” 177.Importantly, Dr Lam expected a treating orthopaedist to advise the patient with recurrent patella dislocation (so he/she could make an informed choice of treatment option) that if he/she opted for conservative treatment, there would be (a) higher chance of future patella dislocation, and (b) need to adopt protective measures, ie to carry out muscle-strengthening exercises to protect the injured knee, and to avoid risky activities, “…… [eg], a lot of twisting motion during the sports. Actually, [Dr Lam] would advise the patient not to play contact sports, [Dr Lam] would have done so …… In the male, its basketball and soccer …… And lady, maybe in this case, handball …… and rugby of course …… But badminton, tennis, that sort of thing is okay ……” 178.To summarise, Dr Lam opined that when a patient had recurrent patella dislocation (ie 2 or more dislocations), the treating orthopaediest would have (a) informed him/her “this is recurrent” with possibility of further dislocation, (b) offered him/her normal/usual/ routine surgical treatment option for stabilising the injured knee and preventing further recurrence of dislocation, and (c) warned him/her that if he/she opted for conservative treatment, he/she would have to adopt preventive measures, eg “…… about matters how to protect on the position, eg about not doing sports with twist of ankle, and …… strengthening muscles and all that ……” As explained in the above paragraph, handball and basketball involved high physical demand on the knees with twisting motions and quick-pivoting manoeuvres that would put the injured knee at risk for patella instability events (ie patella dislocations/subluxations). 179.As alluded to in paragraph 175 above, I find/infer on balance that the orthopaedists at UCH’s DOT, who were well familiar with P’s 1st Episode and subsequent left knee condition, and who would have been aware of the general orthopaedic knowledge as explained by Dr Lam (see paragraphs 175-178 above), advised P the diagnosis for the 2nd Episode was “recurrent” left patella dislocation, which grounded their consequent (a) medical advice to her that there would be higher chance of future left patella dislocation (irrespective of whether or not it could have been predicted with medical certainty that future dislocation would or would not actually happen), (b) offer of the normal/usual/routine surgical treatment option (ie corrective surgery to stabilise her left knee which she eventually refused), (c) medical advice to her that protective measures should be adopted to protect the left knee (eg to avoid team sports that involved high physical demand on the knees with twisting motions and quick-pivoting manoeuvres) if she chose conservative treatment (ie refusal of corrective surgery), and (d) need for regular follow-ups with UCH’s DOT to monitor her left knee condition in light of (a) and (c) above. I find this was not only in line with Dr Lam’s opinion, but also consistent with Dr Wong’s evidence (which on balance I accept) that it was only when there would be no more dislocation after corrective surgical intervention, “…… then it’s the time we can do some intensive training, otherwise we will put the patient at risk if we do too much exercise for intensive training for her ……” Plainly, Dr Wong opined that given P’s recurrent left patella dislocation, even intensive muscle strengthening/training (let alone risky sports such as handball and basketball) would have posed risk for further patella instability events (ie patella dislocations/subluxations) unless such instability was first corrected by surgery. In my view, P’s denial in paragraph 155(a) above was nothing more than poor effort to downplay the less than robust condition of her left knee prior to the Accident. 180.Findings on treatment options The discharge summary by PYNEH’s DOT dated 21 December 2013 (ie after the Accident) (G/909) recorded as part of P’s “PMH” (past medical history) that P was “[previously] offered soft tissue realignment but patient refused”. It was apparent from this history that, quite in line with Dr Lam’s opinion (see paragraphs 176 and 178 above), after the 2nd Episode the orthopaedists at UCH’s DOT offered P the “normal”, “usual” or “routine” operative treatment option (ie soft tissue realignment operation). But P refused such surgical procedure, so she ended up with conservative treatment (ie physiotherapy for muscle strengthening) for a short period. 181.P claimed she preferred the conservative non-surgical approach because (a) she relied on medical advice from the orthopaedists at UCH’s DOT, which advice evolved in the course of P’s testimony from (i) corrective surgery was not required if conservative treatment could have solved the problem, to (ii) she could achieve full recovery with only conservative treatment, and then to (iii) she could continue to do any exercise without restriction, and (b) “…… everything was normal when [P] played sports ……” after the 2nd Episode. I disagree. 182.I find on balance that since P had a recurrent left patella dislocation just over 2 years after her first-time or primary left patella dislocation (ie the 1st Episode) that was managed by conservative treatment, which demonstrated (as Dr Lam acknowledged in-chief) P’s “…… muscles at the time [were] quite weak ……”, operative management (ie soft tissue realignment operation – see paragraph 180 above and paragraphs 230-231 below) was clearly indicated for the 2nd Episode being a recurrent patellar instability event so as to re-align the left patella in better position within the trochlear groove, to stabilise the left knee and to reduce risk of further patella dislocation, which in my view was why the orthopaedists at UCH’s DOT offered such surgical procedure to her. While I accept P opted for conservative treatment and declined surgery, I reject the reasons she put forward for such choice (see (a)-(b) in above paragraph), which were just her unconvincing uncorroborated assertions. 183.I have found the orthopaedists at UCH’s DOT advised P of the matters in paragraph 179(a)-(d) above. On balance, I disagree that the orthopaedists at UCH’s DOT advised P of the matters in paragraph 181(a)(i)-(iii) above. I find P’s assertion otherwise was merely a poor attempt (a) to downplay (i) the reality that her left knee was weaker and/or less stable than she portrayed and/or (ii) her understanding/ awareness of such reality, (b) to bolster her contention that she had fully recovered from the 1st/2nd Episodes with no impact/consequence on her physical fitness and her sports activities (which she allegedly played at high level) so as to support her further contention that her pre-existing left knee condition did not cause or contribute to the Accident, and (c) to justify why she did not disclose her left knee condition in the Health Declaration and also in the Questionnaire referred to in paragraphs 332 and 352 below during the PI recruitment process. 184.As I have explained in paragraph 182 above, corrective surgery was plainly indicated after the 2nd Episode, but P made further attempt (beyond her allegations in paragraph 181 above) to justify her refusal of surgical intervention by claiming the orthopaedist who attended her at PYNEH’s orthopaedic ward on 20 December 2013 (ie after the Accident) told her that normally after a person became an adult “…… the problem would not come up again, and …… [P’s] condition has become stable, so [her] choice of having passive treatment rather than the active treatment [ie the offered surgical treatment after the 2nd Episode] …… is correct ……” But such alleged medical advice was nowhere to be found in the patient notes of PYNEH’s DOT on 20 December 2013 (G/906-907) and/or in the discharge note on 21 December 2013 (G/909). More importantly, I find such alleged medical advice improbable for the following reasons:
Regrettably, I come to the view that P made up the alleged medical advice by the orthopaedist at PYNEH’s DOT on 20 December 2013 with a view to validate her choice of conservative treatment when corrective surgery was obviously indicated after the 2nd Episode, and to bolster her assertion that her left knee was problem-free prior to the Accident. This spoke ill of the overall veracity of P’s evidence. 185.In view of the poor quality of P’s evidence in this respect and the absence of MNR in relation to her follow-ups at UCH’s DOT for her left knee condition, it was unclear why P chose conservative treatment after the 2nd Episode. But given P did not have surgery to strengthen the medial support structure and to stabilise her left knee, a key issue that arose was whether P’s left knee was less robust and more vulnerable during the period from the 2nd Episode to the Accident than she tried to portray in her evidence. For reasons discussed below, I find P’s left knee was indeed less robust, more vulnerable and certainly not pain-free as P alleged. 186.Findings on follow-ups at UCH’s DOT I find on balance it was the propensity for left patella dislocation to “recur” upon P’s refusal of the indicated surgical intervention after the 2nd Episode that she was arranged to have regular follow-ups with UCH’s DOT on her left knee condition, which follow-ups continued even after she was enrolled at the College more than 7 years later in 2013. Indeed, P claimed to be unable to say whether her consultation with UCH’s DOT on 27 December 2013 after the Accident was her usual scheduled follow-up with UCH’s DOT or whether it was an expedited arrangement upon referral by PYNEH’s DOT. 187.I find on balance the orthopaedists at UCH’s DOT regularly monitored P’s left knee condition by way of follow-ups from 2003 to 2006 because (a) P’s pre-existing left knee condition with weak muscles, lax ligaments and flexible joints despite rehabilitation and sports after the 1st Episode (see paragraphs 172-174 above) led to the non-traumatic 2nd Episode, (b) P preferred conservative treatment over surgical option but only received physiotherapy for a short period (see paragraphs 154 and 180 above), (c) P’s choice of conservative treatment after the 2nd Episode led to higher risk of further patella dislocation and also need for adopting protective measures (eg avoidance of team sports that involved high physical demand in the knees with twisting motions and/or quick-pivoting manoeuvres) (see paragraph 177 above), and (d) Dr Wong’s opinion that without corrective surgery to stabilise the left knee P would be “…… at risk if we do too much exercise for intensive training for [P] ……” (see paragraph 179 above), which (i) suggested that without surgery P could not have intensive muscle strengthening/training to harden the muscle support for her left knee, (ii) explained why P only had a short period of physiotherapy after the 2nd Episode as compared with 137 sessions of physiotherapy after the Accident and the 1st/2nd Surgeries for about 2½ years from 28 January 2014 to 5 August 2016 (see physiotherapy report dated 21 February 2017 by TKOH, C/298-299), and (iii) meant it was likely that P’s muscles remained weak, her ligaments remained loose/lax and her joint remained flexible, hence UCH’s DOT prescribed follow-up service as its plan of management. I find this to be so especially if UCH’s DOT was aware P had trochlear dysplasia with its known association to patella instability (see paragraph 167 above and as explained in paragraphs 251-253 below), but it was unclear whether UCH’s DOT was so aware in view of the absence of MNR concerning P’s follow-ups in relation to her left knee condition. 188.However, P testified under cross-examination that the doctor (presumably the orthopaedist at UCH’s DOT) recommended ceasing follow-up when she was in Form 5 or Form 6 (ie about 2007-2008), but somehow UCH’s DOT still continued to schedule and P still continued to attend regular follow-ups thereafter (ie even after she joined the College) despite such alleged medical recommendation. On balance, I reject P’s such testimony as a poor attempt to paint a better picture of her left knee condition than it actually was the case. Given the factors in paragraph 187(a), (b), (c) and (d)(i)-(iii) above, I find it highly improbable that the orthopaedist(s) at UCH’s DOT would have advised P to terminate her follow-ups:
189.Faced with the reality of regular follow-ups at UCH’s DOT for her left knee condition until even after enrolment at the College, P then said under cross-examination that each follow-up appointment ended very quickly after the attending doctor asked and she replied there had not been any dislocation, so P felt it was “…… just similar to a body check ……”, and she herself regarded such follow-ups as regular body check-ups. But in the amended version of the 3/1/14 Stmt which P herself amended (E/474-476) and sent to HKPF under cover of her letter dated 7 October 2017 (ie more than 3½ years after the Accident) (E/473), P claimed she “…… continued to attend and attended medical checkup about checkup once a year in several months at [UCH] in case of deterioration in condition ……” (my emphasis).It was also quite telling that at each follow-up the orthopaedist at UCH’s DOT would ask P whether there was any dislocation, and that more than 3 years after the Accident P took the initiative to clarify the purpose of such follow-ups was to monitor whether there was “deterioration in condition” of her left knee. According to the P 1st WStmt, after the Accident P was referred by PYNEH’s DOT to UCH’s DOT not only for geographical reason (as UCH was closer to her home at Tseung Kwan O) but also because P previously received treatment at UCH’s DOT for her left knee problems in 2003 and 2006 and then had continuous follow-ups there “to ensure her left knee remained in good condition”. These matters plainly exposed the need for regular monitoring of P’s left knee condition, and the unreliability of P’s evidence that when she was in Form 5 or Form 6 she was advised by the orthopaedist at UCH’s DOT that she no longer required further follow-up. As Ms Chao submitted (and I agree), there was no sensible reason for continued follow-ups after all these years if P’s left knee had fully healed/ recovered. 190.Mr Sakhrani suggested P “had gone through low-cost check- ups about once per year, as it is not uncommon in relation to old ailments but with no indication of any fresh dislocation or undergoing a course of medication”. There was no evidence to suggest that scheduling regular follow-ups for “old ailments” that were no longer of concern or that no longer required regular monitoring was a “not uncommon” practice of public hospitals given the large demand for medical services and the scarce resources for meeting such demand. I also reiterate my observations in paragraph 188(b) above. On balance, I find P’s regular follow-ups with UCH’s DOT continued during the period from 2006 to 2013 because P’s left knee condition was more vulnerable, unstable and symptomatic than P claimed, and P made poor attempts to downplay her pre-existing left knee condition. 191.Left knee condition after 2nd Episode As Mr Sakhrani submitted, both Ortho Experts found some element of pre-existing left knee condition. Their differences lied in inter alia the orthopaedic aspects of (a) the matter of causation of the Accident and (b) the issue as to when and in what manner P might have met with further dislocation. This largely rested on the vitality of the factual assumptions Dr Lam seized upon for his opinion, ie P’s left knee was asymptomatic and had satisfactory functionality before the Accident.[65] 192.P claimed and Mr Sakhrani submitted that the following matters supported such factual assumption, but again much turned on P’s reliability and/or veracity on such matters:
193.P was keen to emphasise she was asymptomatic and pain-free after the 2nd Episode up until the Accident, which allowed her to participate in vigorous sports (including handball and basketball) without any restriction. Such allegation was significant because even Dr Lam had to acknowledge in-chief that the fact the 2nd Episode (ie P suffered left patella dislocation without any trauma when she was engaged in the ordinary activity of running fast in a straight-line manner) came about because of P’s weak muscles, loose/lax ligaments and flexible joints (see paragraph 174 above) seemed to contradict P’s account of “…… what happened afterwards, that she was able to run …… play sports and so on …….” (ie P’s account to the Experts and Dr J Lam and also in her own statement/oral evidence that after the 2nd Episode (a) her left knee was problem-free with no pain at all (ie she was asymptomatic), and (b) she could/did return to play vigorous team sports such as handball and basketball that involved high physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres “at high level”). But Dr Lam uncritically harnassed P’s account in (a)-(b) above to reject the aforesaid apparent contradiction, and went on to adopt P’s such account to ground his opinion that “…… it was likely that [P] enjoyed rather painless and satisfactory function in her left knee before the [Accident] ……” Thus, Dr Lam agreed under cross-examination, as he had to, that his opinion as to P’s good clinical/functional recovery after the 2nd Episode essentially turned on the reliability of her account, so that if P was not pain-free and/or did not engage vigorously in sports such as handball or basketball after the 2nd Episode, “…… that would shift the whole thing, …… this would have affected [Dr Lam’s] assessment ……” as he could not then say P was functionally good before the Accident, which, in my view, would in turn undermine his opinion as to the causation of the Accident. 194.Asymptomatic and pain free? The task of assessing the veracity of P’s account of her left knee condition after the 2nd Episode was not made any easier by the absence of MNR in relation to P’s follow-ups at UCH’s DOT prior to the Accident. But MNR of TKOH’s HoHCS in relation to P’s Chinese medical treatment from 2 November 2013 to 11 November 2016 (G/940-942) shed some light on P’s left knee condition after the 2nd Episode. It was recorded that when P first attended TKOH’s HoHCS on 2 November 2013 (ie about 1½ months before the Accident) for “右踝關節扭傷4日” she gave a history of “以前左膝內側外傷髕骨移位反覆疼痛5年” (G/941) (ie P had (a) left patella dislocation and then (b) on-and-off pain for 5 years). P denied under cross-examination she told the Chinese medical practitioner her left knee “反覆疼痛5年”, but on this point Mr Sakhrani in his written closing submissions interestingly submitted “…… [that P] had pain from time to time does not mean that she was unfit to undertake the [Course] ……”, which seemed to say P did have “pain from time to time”. 195.Dr Lam agreed that severe knee pain would have adversely affected P’s account that she was able to physically manage at a high level, but he would not infer too much from this record by TKOH’s HoHCS (a) since he did not know the frequency/severity of “反覆疼痛” (ie on-and-off pain) over the 5-year period, and (b) given P’s good functionality in being able to vigorously play handball and basketball at high level after the 2nd Episode with no further dislocation until the Accident, and he therefore opined it was unlikely for P’s on-and-off knee pain to be frequent or significant. But I find myself unable to accept Dr Lam’s opinion. 196.On (b) above, Dr Lam was again reliant on the veracity of P’s account of her own functionality after the 2nd Episode to surmise that “以前左膝內側外傷髕骨移位反覆疼痛5年”, ie the on-and-off left knee pain for 5 years as recorded by the Chinese medical practitioner, was “not severe, not frequent”. I find it strange that Dr Lam as forensic expert did not critically debate why the on-and-off pain for 5 years objectively documented by the Chinese medical practitioner (that was prima facie sourced from P given that she first consulted TKOH’s HoHCS on the very day the record was made, ie 2 November 2013) did not sit well with P’s account to the Ortho Experts that she was pain-free and very sporty in ballgames with risky twisting motions and/or quick-pivoting manoeuvres in the period after the 2nd Episode, and did not go on to critically consider whether P’s account was medically convincing given the documented existence and/or chronicity of on-and-off pain for 5 years irrespective of its severity and frequency. I am not persuaded by Dr Lam’s opinion that the documented on-and-off left knee pain for 5 years could be brushed aside so easily by wholesale acceptance of P’s account of her functionality. 197.On (a) above, Dr Lam downplayed the on-and-off left knee pain for 5 years documented by TKOH’s HoHCS by saying there was sparse detail about its frequency/severity. I find nothing sinister in such sparse detail because the record itself obviously showed P attended TKOH’s HoHCS for “右踝關節扭傷4日” and the on-and-off left knee pain for 5 years was elicited as part of P’s past medical history. In my view, despite the alleged sparse detail, this entry in MNR of TKOH’s HoHCS was significant in that (a) it was a rare objective record that evidenced P’s complaints during the period after the 2nd Episode and before the Accident in the absence of MNR concerning P’s follow-ups with UCH’s DOT in relation to her left knee, and (b) the very existence of on-and-off pain for 5 years before the Accident (quite irrespective of its severity and frequency) as documented by TKOH’s HoHCS did not sit well with P’s evidence that she full recovered from her 2nd left patella dislocation, that she was pain-free despite playing vigorous sports at high level, and that she had good functionality after the 2nd Episode up until the Accident. 198.On balance, I reject P’s denial that she never told the Chinese medical practitioner at TKOH’s HoHCS she had “反覆疼痛5年”, and instead find she did on 2 November 2013 tell the Chinese medical practitioner at TKOH’s HoHCS she had on-and-off left knee pain for 5 years. I am unable to discern any convincing reason for the Chinese medical practitioner to make this up in his MNR on P’s 1st consultation, especially when the period of 5 years was roughly in line with the period after initial immobolisation followed by physiotherapy treatment after the 2nd Episode and gradual pursuit of some sports thereafter (albeit not to the high level as P alleged – see the discussion and findings in paragraphs 200-215 below). 199.I prefer Dr Wong’s evidence-in-chief that the documentation by TKOH’s HoHCS of P’s on-and-off left knee pain for 5 years before the Accident was clear testament to the reality that her left knee was not as problem-free and/or pain-free as she alleged. I also find on balance the functionality of P’s left knee was not as good as she suggested. In coming to this view, I also rely on the discussion and findings below on P’s sports activities after the 2nd Episode (see paragraphs 203-215 below), but suffice to state here that even though I accept P did play some handball (which was her favourite sport as noted in the PT Record – see paragraph 171 above) and some basketball, she did not do so at a high level. But playing handball and basketball that involved heavy physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres would not have been conducive to patella stability (especially with bony anomalies in P’s left knee structure – see discussions in paragraphs 222-288 below on P’s virtually flattened left sulcus angle and left trochlear dysplasia), and I find on balance that such sports contributed to P’s left patella instability (see discussion and findings in paragraphs 172(a)-(b), 179 and 188(c) above) with consequent left knee pain that was probably medial-sided over the medial patellofemoral ligament (“MPFL”), which the Ortho Experts explained was the key ligament that pulled on the patella to restrain its movement, to stabilise it as it moved, and to keep it in track (see paragraph 270 below). I also bear in mind that tenderness was elicited over MPFL in P’s left knee after the patella instability event of the Accident (see medical report dated 1 April 2015 by UCH’s DOT (C/293)). In my view, P’s on-and-off left knee pain for 5 years before the Accident together with her patella apprehension sign (see paragraph 311 below) and J sign (see paragraph 312 below) spoke tellingly of the chronicity of P’s left patella instability before the Accident (which was reinforced by P’s pre-existing left sulcus/trochlear bony deformity (see paragraphs 222-288 below), pre-existing wasting of her left thigh muscle (see paragraphs 293-308 below) and pre-existing osterosclerosis (see paragraph 310 below)). On balance, I disagree with Dr Lam’s opinion that “…… it was likely that [P] enjoyed rather painless and satisfactory function in her left knee before the [Accident] ……” 200.Speedy recovery? No need for surgery? Dr Lam (a) suggested in the Ortho 1st/2nd Jt Reports that “[based] on the evidences available” P had relatively speedy or rapid recovery after the 2nd Episode with conservative treatment, and (b) there was no evidence to suggest P needed further specific treatment (eg surgery) for her left knee after the 2nd Episode. I am not persuaded by these reasons, which did not assist to show P was pain-free and had satisfactory function after the 2nd Episode. 201.As Dr Wong rightly pointed out, there was no MNR by TKOH’s AED and/or UCH’s DOT to support the suggestion that P had a “relatively speedy recovery” under (a) above or to objectively prove the extent of physiotherapy received (ie there was just P’s allegation that she had a short period of physiotherapy – see paragraph 154 above). The available MNR by TKOH’s HoHCS (which Dr Lam was aware) showed P was symptomatic and not pain-free despite initial conservative treatment. The suggestion of “speedy” or “rapid” recovery from the 2nd Episode turned on the vitality of P’s self-reported account, and as explained above (and also seen in discussions below) I have reservations about the reliability and veracity of P’s such allegation. 202.As regards (b) above, after the 2nd Episode P was offered soft tissue realignment operation to stabilise her left knee and to prevent further left patella dislocation, but she refused. I have found that given the 2nd Episode was an atraumatic recurrent left patella dislocation that resulted from weak muscles, loose/lax ligaments and/or flexible joints, P was clearly indicated for surgical intervention, which was a normal, usual and/or routine treatment option for stabilising the left knee (by strengthening the soft tissue support for the left knee to hold the left patella in place) and reducing the chance for further dislocation (see paragraphs 175-185 above). In making her choice to forgo such indicated surgical solution and to receive conservative treatment, P had to contend with higher risk of further left patella dislocation and hence need to avoid risky activity, eg playing team sports that involved high physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres (see paragraphs 177-179 above). On balance, I find Dr Lam’s reliance on the matters in paragraph 200(a)-(b) above could not be supported. 203.Rehabilitation and sports Dr Lam relied on P’s own account[66] of good clinical/functional recovery to the extent that she could actively engage in vigorous sports (eg handball and basketball “…… that required high physical demand on the knees ……”) at high level without record of further left patella dislocation after the 2nd Episode to infer that P must have “…… undergone physiotherapy well and she had worked hard to strengthen the muscles ……” But then Dr Lam also said in-chief that when “…… the muscles are strong, after full [rehabilitation], of course the patient [ie P] can go back ……” to vigorous sports. These contentions that good functionality (ie vigorous sports) indicated there had been good rehabilitation (ie strong muscles) and that good rehabilitation (ie strong muscles) allowed return to good functionality (ie vigorous sports) seemed to be quite circular. But be that as it may, as explained in paragraph 193 above, Dr Lam agreed that the vitality of his opinion that P had good clinical/functional recovery with strong muscles after physiotherapy following the 2nd Episode turned on the reliability of P’s account, and if she did not engage in handball or basketball as vigorously as she claimed after the 2nd Episode, “that would shift the whole thing, …… this would have affected [Dr Lam’s] assessment ……” in that he could not say she was functionally good before the Accident. 204.P had her 1st dislocation in her childhood with a high chance of further dislocation as she grew up. As alluded to in paragraphs 184(a) above, Dr Lam opined that although patients who had primary or recurrent patella dislocations when they were young would have higher chance of further dislocations, such chance would decrease as they matured into adulthood, probably due to stronger muscles, “stiffer” or less lax ligament / soft tissue, more mature bony anatomy and more “prudent” behavior, say, in sports and recreation. In the case of P, Dr Lam in the Ortho 1st Jt Report noted the 1st/2nd Episodes occurred when P was relatively young “…… when the joints are usually laxer / more flexible + muscles are less strong ……”, but he suggested that with strengthening of muscles as she grew up (particularly if she had sufficient rehabilitation by physiotherapy and did sports – see paragraph 170 above), the chance for further dislocation should not be as high when P entered adulthood (but for the Accident which Dr Lam opined was caused by severe trauma). 205.Of course, P’s musculoskeletal structure (both bony anatomy and soft tissues) would gradually mature as she transitioned from adolescence to adulthood. But the key questions were (a) whether the underlying left knee bony anatomy had congenital deformity that would inherently cause patella instability, and (b) whether the network of connective tissues (ie muscles, ligaments and tendons) that supported the left knee became stronger. Focusing on (b) above for the moment, as Dr Lam acknowledged (and as I have explained in paragraphs 173-174 above), despite physiotherapy and sports after the 1st Episode, P’s knee muscles, ligaments and joints were still weak, lax and/or flexible which led to the atraumatic 2nd Episode (ie a patella instability event) about 2 years later. 206.By the time of the 2nd Episode, P’s left knee was not a well knee but one that had suffered 2 patella dislocations (with propensity for recurrence due to choice of conservative treatment) and had weak patella support (see paragraphs 172-174 above). As Dr Wong said under cross-examination (and on balance I accept – see paragraph 179 above), since P opted for conservative treatment and refused to have surgical intervention to stabilise her left knee after the 2nd Episode, her treating orthopaedist(s) at UCH’s DOT would have recommended P to avoid any intensive exercise training or vigorous sports with high physical demand on the knees given the higher chance of further patella dislocation. Indeed, Dr Lam also gave similar opinion on the basis that a treating orthopedist would have so advised the patient (see paragraphs 177-178 above). Dr Wong further explained that it was only after corrective surgery to stabilise the left knee, ie when there would be no more dislocation, “…… then it’s the time we can do some intensive training, otherwise we will put the patient at risk if we do too much exercise for intensive training for [P] ……” (see paragraphs 179 and 188(c) above and paragraph 209 below). Dr Wong opined (and on balance I accept) this was more so in P’s case given the bony structural defect of trochlear dysplasia and/or almost flattened left sulcus angle (see paragraphs 222-288 below), so even if there were intensive muscle training, still it would have been difficult to prevent recurrent left patella dislocation without surgical intervention. 207.Dr Wong’s opinion was supported by the fact that soft tissue realignment operation was a “normal”, “usual” or “routine” surgical solution after recurrent patella dislocation to stabilise the knee and to shore up knee support, which I find (a) was indicated after the 2nd Episode, (b) was offered to P by UCH’s DOT, (c) (according to Dr Wong with whom I agree) would have allowed a safe condition for intensive physiotherapy, training and suitable sports to follow in order to build up the connective tissues (particularly the relevant thigh muscles) to support the operative outcome and to strengthen medial support for protecting P’s left knee. This was what happened when P had 137 physiotherapy sessions in January 2014 to August 2016 after the 1st/2nd Surgeries in order to rehabilitate and strengthen her left thigh muscles. But after the 2nd Episode P did not have the benefit of prior surgical intervention to first stabilise/protect the left knee to allow a safe condition for intensive muscle hardening (see paragraphs 172 and 188(c) above), which probably explained why (according to P) she only had a short period of physiotherapy. I am not persuaded it was sufficient to correct P’s weak muscles and the loose/lax soft tissues that led to patella instability and eventually the 2nd Episode. In my view and as explained in paragraphs 199 above, P’s on-and-off left knee pain for 5 years prior to the Accident, her patellar apprehension sign, her J sign, the pre-existing muscle wasting in her left thigh, and her pre-existing osteosclerosis were all testament to the reality that P had not reached optimal rehabilitation/recovery after the 2nd Episode, and that her soft tissue support for left knee was still weak and symptomatic with continued patella instability. 208.Turning to the matter of sports, I have explained handball and basketball were sports that involved high physical demand on the knees with risk for patella instability events, ie patella dislocation/ subluxation, and could not be regarded as muscle strengthening exercises (see paragraph 172(b) above). Indeed, Dr Lam also opined that upon recurrent patella dislocation, the treating orthopaedist would have advised the patient who chose conservative treatment there would be higher chance of further dislocation so there was need to adopt protective measures (including avoiding sports that involved high physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres such as basketball or handball – see paragraphs 176-178 above) (see also Dr Wong’s similar opinion in paragraphs 206-207 above). Both Ortho Experts were quite consistent about this, and I have found the treating orthopedist(s) at UCH’s DOT did so advise P after the 2nd Episode (see paragraphs 179 and 183 above). In the circumstances, P’s account of playing handball and/or basketball at high level after she had recurrent patella dislocation and opted for conservative treatment could not be said to be more “prudent” behavior in sports. Rather, it would have been rash and imprudent, and I am unconvinced P would so totally fly against the medical advice by the orthopaedist(s) of UCH’s DOT to avoid sports like handball and basketball (see paragraphs 179 and 183 above). Whilst I accept on balance that P did some exercises (eg walking up the hill to school rather than taking the minibus – see paragraph 42 above) and that she did play some handball and/or basketball after the 2nd Episode because she was headstrong and she loved those sports (which ballgames involved high physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres and probably contributed to her on-and-off left knee pain in the 5 years before the Accident and to her continued patella instability – see paragraphs 163 and 172 above), I find it was of much less vigour and intensity than P claimed. I am unconvinced P intensively engaged in handball and basketball at high level and was pain-free despite such vigorous sports. Mr Sakhrani referred to the account of P’s sports activities in the PT Record (see paragraph 171 above, F/735), but apart from stating P’s love for handball, there was no mention of her years as school team captain, and in any event no mention of competitive handball after 2005. In all the circumstances, I am not persuaded by P’s account of good functional recovery, which according to Dr Lam, “…… would shift the whole thing, …… this would have affected [Dr Lam’s] assessment ……” 209.Turning now to P’s structural defects, they encompassed both bony anatomy and soft tissues. Dr Wong opined that the MRI Report gave radiological proof of chronic pre-existing recurrent patella dislocation problem, ie “virtually flattened femoral sulcus angle” at the left knee, which suggested a high chance of future recurrence of patella instability events (ie patella dislocation/subluxation) even without any trauma in the absence of surgical intervention to stabilise P’s left knee (which P elected not to take up despite offer of soft tissue realignment operation by UCH’s DOT after the 2nd Episode). Dr Wong went on to say with such bony defects it would be difficult to prevent recurrence of patella dislocation even with intensive muscle training, so P should avoid high-level training/sports in the absence of surgical stabilisation of the left knee. Dr Wong noted MRI features of “[superior] and lateral subluxation” of the left patella[67] associated with almost flattening of the left femoral sulcus angle as observed in the MRI Report (C/302-303). Another bony structural defect that Dr Wong noted was trochlear dysplasia in P’s left knee, which congenital condition also led to propensity for patella instability events (ie patella dislocation/ subluxation). Dr Wong therefore doubted whether P could have maintained intensive sports activities after the 2nd Episode as she alleged. 210.Dr Lam held a different view, and opined that P’s right and left sulcus angles were within normal limits, and the slight anatomical difference between P’s left and right knees should not lead to the conclusion of high chance of recurrent left patella dislocation in future even without any trauma. I will discuss the matter of bony structural defects (if any) of P’s left knee in paragraphs 222-288 below, but suffice to state here I prefer the opinion of Dr Wong and find that P had congenital bony defects and consequent left patella instability such that it was quite unlikely that P would have maintained high level of sports activities (especially handball and basketball) after the 2nd Episode. 211.Further, Dr Wong explained that strong/normal quadriceps were a key to prevent patella dislocation/subluxation, but P had documented wasting of left quadriceps shortly after the Accident (and Dr Lam explained that muscle wasting could occur due to pain inhibition – see paragraph 297 below), which indicated (a) she should have left knee problems from lack of intensive training of her quadriceps for a long while before the Accident, and (b) it was likely P might have had multiple episodes of minor patella subluxation after the 2nd Episode. In the Ortho 2nd Jt Report, Dr Wong opined that “…… based on the degree of left knee muscle wasting and the dislocation patella occurred as a result of stairs walking [ie the Accident], one should suspect the genuineness of [P’s] history” that she played vigorous sports such as handball and basketball. 212.On the other hand, Dr Lam disagreed there was any significant pre-existing wasting in P’s left thigh muscles, and considered it was likely that P “…… enjoyed rather painless and satisfactory function in her left knee before the [Accident] ……” Also, Dr Lam noted in the Ortho 1st/2nd Jt Reports that P informed the Ortho Experts she did not have further injuries to her left knee after the 2nd Episode and before the Accident, and that there was no record of further left patella dislocations until the Accident. 213.The matters of muscle wasting and patella instability will be discussed in paragraphs 293-315 below, but suffice to state here that I prefer the opinion of Dr Wong and find there were objective signs of P’s left patella instability prior to the Accident. I am not persuaded that P’s left thigh muscles were so strong and/or her knee ligaments were so “stiff” that she was pain-free and asymptomatic and/or that she was able to vigorously play handball and basketball at high level in the intervening years between the 2nd Episode and the Accident. I also find that even though there was no documented left patella dislocation between the 2nd Episode and the Accident, it was likely P had some episodes of minor patella subluxations after the 2nd Episode (especially as she played some handball and basketball that would strain the left knee and its surrounding soft tissue support) as objectively evident from (a) by P’s muscle wasting, on-and-off knee pain, patella apprehension sign and J sign, and (b) P’s bony defects of almost flattened left femoral sulcus angle, left trochlear dysplasia and osteosclerosis in the left patellofemoral joint, and (c) Dr Wong’s opinion on (a)-(b) above. 214.For all of the above reasons, I share Dr Wong’s reservations about the veracity of P’s account that she was engaged in vigorous sports activities such as handball and basketball at high level after the 2nd Episode, and that she was asymptomatic and pain-free despite such intensive sports. I find on balance P was aware of the medical advice by the orthopaedist(s) at UCH’s DOT to avoid such sports when she opted for conservative treatment, which treatment choice limited the intensity and range of her training and sports. Nevertheless, I have found P did play some handball/basketball which, despite the gradual maturity of P’s musculoskeletal structure as she grew older, conspired with (a) her bony structural knee defects which would not change and (b) her weak muscles and loose ligaments that could not be fully rehabilitated by intensive training without surgical intervention, causing chronic patella instability as evident by muscle wasting, osterosclerosis, on-and-off knee pain, patella apprehension and J sign. 215.Dr Lam also testified under cross-examination that since P had 137 physiotherapy sessions after the 1st/2nd Surgeries to rehabilitate her left quadriceps so that it was almost comparable to the right side, he “had a feeling” or “tended to believe” P was a determined person, so he had “…… reason to believe that [P] was …… an active person as she said even …… prior to the subject injury ……” (ie the Accident). As a starting point, assessment of P’s veracity and her character/personality were very much matters for this court as a tribunal of fact rather than for the Experts who proceeded on factual assumptions. In any event, the situation after the Accident and the 1st/2nd Surgeries was very different from the situation after the 2nd Episode and conservative treatment. P claimed she only had physiotherapy for a short while after the 2nd Episode, and there was no evidence she had the intensive physiotherapy training she received after the 1st/2nd Surgeries. On balance, I prefer Dr Wong’s opinion that without corrective surgery to stabilise the left knee, (a) P could not have intensive muscle strengthening/training as it would put her left knee at risk (see paragraphs 179, 188(c), 206-207 and 209 above), and (b) it would not have helped given P’s bony structural defects (see paragraphs 206-207 and 209 above), which dovetailed with P’s need for regular monitoring follow-ups at UCH’s DOT after the 2nd Episode. So P’s physiotherapy after the 1st/2nd Episodes could not have been as intensive as it was after corrective surgical treatment. 216.Physical Fitness Test and physical training at College In the Ortho 1st/2nd Jt Reports and also in his evidence-in-chief, Dr Lam opined it was probable and he so assumed (a) “…… [P] must have passed some physical test before being recruited to become a [PI] ……” “or at least she should feel comfortable with her physical condition before she was enrolled to the [College] ……”, and (b) she “…… was undergoing active training in [College]……” for 10 weeks, “…… which would mean the knee was in a fairly good condition ……” 217.But the joint instructions letter dated 16 October 2017 to the Ortho Experts only described P’s work during PI training[68] and not her endeavours during the recruitment process. Dr Lam agreed under cross-examination that the Ortho Experts did not receive any instructions on the Physical Fitness Test that P took for recruitment as a PI. In the end, Dr Lam confessed he merely relied on “common sense” to say P’s left knee was in “fairly good condition” because she must have passed the physical fitness test for recruitment purpose. 218.In the Ortho 2nd Jt Report, Dr Wong was skeptical of Dr Lam’s opinion in paragraph 216 above since no objective evidence was placed before the Ortho Experts, and he noted the types of physical assessment for police recruitment and the types of physical training for PIs were outside the expertise of the Ortho Experts, so “…… [one] should seek information provided by [College] before jumping to a conclusion ……” Rather, Dr Wong relied on P’s clinical/radiographic condition to opine orthopaedically that P “should be regarded as not suitable for training if she had declared her medical history during her application unless she has received surgical correction, a kind of realignment procedure like what she has received after the [Accident] ……” 219.Whilst the attention of the Ortho Experts was drawn to the Physical Fitness Test that P took during the recruitment exercise and the various types of physical training P underwent during PI training in the course of their oral evidence, the matters in paragraphs 216-218 above still had significance for they demonstrated Dr Wong’s clear understanding of his expert function in rendering expert opinion on orthopaedic matters and Dr Lam’s tendency to surmise on assumptions without clear factual foundation and without qualifying his opinion accordingly. In my view, this as well as his uncritical willingness to adopt P’s allegations went some way to weaken Dr Lam’s opinion on an overall basis. 220.P did take/pass the Physical Fitness Test for recruitment purpose before she was enrolled as a PI at the College, but information about such test was not made available to the Ortho Experts at the time of the Ortho 1st/2nd Jt Reports. I will deal with the Physical Fitness Test in Part VI(d) below. Suffice to state here that details of the individual tests under the Physical Fitness Test (particularly the squat-thrust test) showed P’s left knee was not as robust or as problem-free as she would have liked this court to believe. 221.P received physical training as part of her PI training, but (a) the PT Record showed P did not take some physical training tests (see paragraphs 436-443 below), (b) P’s scores/ranking for the physical training tests among the squad mates of PI566 were marginal and wallowed close to the bottom of the class (see paragraph 171 above and paragraph 437 below), and (c) P was given modified physical training and additional/extra physical training (see Pard X(b)-(c) below). I will deal with the PT Record and P’s physical training at the College in Parts X and XII(b)-(c) below. Suffice to state here that even though P did receive physical training, her physical fitness was less robust than that of her other squad mates, which I find on balance was partly caused by her chronic left knee condition that was symptomatic and unstable. 222.Sulcus angle The trochlear groove is at the distal part of the femur. The sulcus angle is the angle formed by the femoral trochlear opening of the knee, and is measured by joining 2 lines from the highest point on the medial and lateral condyles to meet at the lowest point of the groove.[69] Dr Wong testified in-chief that the average sulcus angle in a normal knee is 128º in a V-shape. Dr Lam added in-chief that the sharper the V-shape the better. 223.A flattened sulcus angle is a straight line, but a widening of the sulcus angle meant it was wider than the normal range. This condition reflects incongruence in the patella sliding over the femoral trochlea, which results in patellofemoral instability, ie it becomes easier for the patella to move and slide out laterally from its regular position in the groove. In short, a flattened or widened sulcus angle leads to increased chance of patella dislocation (see paragraph 228 below) or patella subluxation (see paragraph 229 below). 224.Dr Wong said under cross-examination that P’s left sulcus angle was congenital (ie not associated with wear and tear), and would remain the same and would not change after the 2nd Episode, the Accident and/or the 1st/2nd Surgeries. Dr Lam also testified that a mature skeleton (eg P’s left knee at the time of the Accident) would not change, and that the 1st/2nd Surgeries (which concerned soft tissues / ligaments (but not bony structure) which aimed at correction and/or reconstruction by tightening the medial soft tissue support for P’s left knee to prevent the patella from dislocation/ subluxation, (ie fully or partially slide out laterally) would not alter P’s left sulcus angle. 225.But Dr Wong opined (and on balance I accept) it was difficult to say whether P’s left sulcus angle was the same at the time of the 1st Episode when P was relatively young because (a) a child’s knee is mostly cartilage rather than bone, so any congenital sulcus angle widening/flattening at a young age may have been amplified during the adolescent growth spurt,[70] and (b) P’s congenital defect in respect of her left sulcus angle might have become more enhanced/flattened in 2006 as compared with her bony structure in 2003. I also agree with Dr Wong’s explanation under cross-examination that a flattened or almost flattened sulcus angle being a congenital bone deformity cannot re-form back into a V-shape by soft tissue corrective surgery. 226.Patella stability According to the medical literature Dr Lam cited in the Ortho 1st Jt Report, “[stability] of the patellofemoral joint is maintained by the complex interaction of three stabilizing groups: static stabilizers (patellofemoral joint geometry), active (M [medial] quadriceps femoris) and passive soft tissue stabilizers (retinacular ligaments). These stabilizers contribute in various extents to patellofemoral joint stability through the range of knee flexion”.[71] The bony structure of the trochlear groove and the sulcus angle of the trochlea are part of the “…… static stabilizers (patellofemoral joint geometry) ……” that worked together with the connective tissues (muscles, tendons and ligaments being the “active …… and passive soft tissue stabilizers ……”) to maintain patella stability. This was echoed by Dr Lam who said in-chief that patella stability depends on the bony construct and the soft tissues. 227.Normally, the trochlear groove is in a V-shape to provide certain amount of bony stability for the patella to prevent it from sliding laterally to the outside, and the network of muscles, tendons and ligaments secures the patella within the trochlear groove, pulling it to glide up the trochlear groove when the leg is straightened, and pulling it to glide down the trochlear groove when the leg is flexed/bent. Likewise, Dr Lam also said in-chief that muscles and ligaments are important because strong muscles (eg quadriceps and “inner [medial] side muscle of the knee”) and “stiff” (ie intact/strong) ligaments (eg MPFL on inner/ medial side) will pull or restrain the patella and protect it from lateral dislocation/ subluxation. So, in a normal knee within a normal sulcus with normal sulcus angle and without trauma, one does not expect the patella sitting in the trochlear groove to dislocate during ordinary activities such as walking or negotiating stairs (with flexed/bent knee). 228.Patella dislocation A patella dislocation occurs when the patella slides sideways (usually laterally) to the side and out of its groove at the patellofemoral joint. This locks the knee and abruptly jerks the ligament that pulls on the patella that slides out of place. Thus, a dislocated patella is painful until corrected, but sometimes it corrects itself (ie self-relocation). 229.Patella subluxation Patella subluxation occurs when the patella is unstable (ie the soft tissue network of the patellofemoral joint that stabilises the knee becomes generally loose, eg weak muscles and/or lax ligaments), and tries to move out of its proper place in the trochlear groove, but has not slided all the way out. This means the patella dislocates only partially and it still tracks in the trochlear groove, so the individual can still walk but it feels unsteady. 230.Corrective surgery A flattened/widened sulcus is essentially a congenital shape of the bony structure (which bone shape of itself is not the true problem), but it leads to increased chance of patella dislocation/subluxation as a result of its articulation with the patella (which consequence is the true problem). Dr Lam said under cross- examination that if a flattened sulcus is the major problem, there are procedures to address this, eg bone block to build up bone to reduce chance of further dislocation, but Dr Wong explained that it is hard to change the bone shape by surgery. In any event, both Ortho Experts accepted the aim of soft tissue corrective surgery is to reconstruct/repair the soft tissues to strengthen the medial support for the knee and consequently to reduce the chance of future dislocation. Consequently, such corrective surgery is indicated in cases of recurrent patella dislocation[72] or in cases associated with patellofemoral symptoms, and in those cases such corrective surgery is routinely/usually offered as a standard treatment procedure. Dr Wong opined it is the treatment of choice for dealing with the consequence of a flattened/widened sulcus by tightening the soft tissues around the knee to prevent the patella from sliding out of its grove despite a flattened or widened sulcus angle. But Dr Lam claimed under cross-examination the vice versa proposition did not follow, ie the fact P was offered corrective soft tissue realignment operation after the 2nd Episode did not mean she necessarily had bony structural defect, eg widened or flattened left sulcus angle. 231.Dr Lam confirmed under cross-examination that the soft tissue realignment operation UCH’s DOT offered to P after the 2nd Episode (G/909) and the “reconstruction surgery (patella stabilization with MPFL reconstruction)” being the 1st Surgery after the Accident (C/290-293 and G/291-292) were the same soft tissue corrective procedure referred to in the above paragraph that was rather standard procedure:
232.Available x-rays Figures 9-10 in the Ortho 1st Jt Report were x-rays taken on day of the Accident (ie 20 December 2013) by PYNEH’s DOT (C/289). According to the Ortho 1st Jt Report, they were AP and lateral views. But the discharge note dated 21 December 2013 by PYNEH’s DOT (G/909) noted “XR [x-ray] skyline view: No # [fracture] loose body seen”. It was unclear why such skyline view x-ray left knee was not made available to the Ortho Experts, especially when (a) Dr Lam emphasised that standard skyline view x-ray knee is the best diagnostic tool to view the sulcus angle, and (b) the observations by PYNEH’s DOT of such skyline x-ray contradicted the operative record for the 1st Surgery dated 9 May 2014 by UCH’s DOT (G/921-922) that showed there was “osteochondral fragment at medical border of patella” (which record Dr Lam seized upon as evidence of severe trauma at the time of the Accident). On the day of the Ortho Exam on 19 October 2017, 4 radiographs (x-rays) were taken, which was said to be AP, lateral and skyline views (see Figures 5-8 in the Ortho 1st Jt Report). Since P’s bony skeleton had reached maturity by the time of the Accident, the left sulcus angle (if it could be satisfactorily shown in the available x-rays in Figures 5-10 in the Ortho 1st Jt Report) would not have changed. 233.Dr Lam claimed the skyline view x-ray left knee is most useful for assessing patella subluxation and patellofemoral joint injury/ disease by detecting the patella alignment and the relationship of the patella to the cartilage and the articulating part of the femur underneath. There are several ways of taking skyline view x-ray knee. Both Ortho Experts referred to the Laurin skyline view and the Merchant skyline view taken with the patient supine (ie lying on the back) and knee bent at a particular flexion, say, 30º and 45º respectively. Dr Lam further referred to the Hughston skyline view (explained in the paragraph below), but claimed studies have shown that the findings from these various skyline views are quite similar (but no such literature was made available at the trial), so they are all acceptable skyline views. 234.Under cross-examination, Dr Lam said he had spoken with the radiographer who took the x-rays for the Ortho Exam, and was informed by such radiographer that Figure 6 in the Ortho 1st Jt Report (“Figure 6 X-ray”) was the Hughston skyline view of P’s right and left knees. To take the Hughston skyline view x-ray knee, the patient has to lie down in prone position and the affected knee is flexed with calf lifting off the table, and “…… if [Dr Lam] remember correctly, it’s about 30/45 – about 40/45 degrees of knee bending, it’s more than 30 degrees ……” from the table, and then the x-ray equipment is tilted at an angle to take x-ray through the patellofemoral joint. 235.On the other hand, Dr Wong said in-chief that the Figure 6 X-ray was likely the Laurin skyline view or the Merchant skyline view, but since it was not expressly labelled on the x-ray itself,[73] Dr Wong could not confirm whether the Figure 6 X-ray was or was not the skyline view. But I note the Ortho 1st Jt Report itself stated a skyline view x-ray left knee was taken (D/328). So I find on balance the Figure 6 X-ray was skyline view x-ray of P’s left and right knees, and it was likely to be the Hughston view with knees flexed at 30º-45º. 236.Dr Lam gave evidence under cross-examination that the best position to view the sulcus angle under x-ray is when the knee is flexed/ bent at 30º-45º, but he also claimed that “…… [in] fact, [if] we want to look at the sulcus angle, the degree of bending is not that important ……” Dr Lam essentially relied on the skyline view Figure 6 X-ray, and he did not draw assistance from and did not explain whether and if so how the AP and lateral views x-ray knees helped to show or measure the sulcus angle. Further, both Ortho Experts did not explain how the sulcus angle could be viewed from other available x-rays (eg Figures 5 and 7-10 of the Ortho 1st Jt Report), and I am unable to draw useful assistance from them. Indeed, the Ortho Experts used copies of the Figure 6 X-ray to mark tangential lines from the highest points of the medial and lateral condyles to the lowest point in the trochlear groove to show the sulcus angle of P’s left knee in Exhibits P1 and D1 (see footnote 69 above). In the circumstances, I bear in mind the skyline view x-ray knees (ie Figure 6 X-ray) was a single x-ray film taken of P’s left knee at a single angle of flexion (ie bent at 30º-45º). However, it was common ground between the Ortho Experts that the sulcus angle as shown by x-ray changes with different degrees of flexion of the knee. 237.Before I leave the point about available x-rays, I note the consultation notes of the follow-up on 27 December 2013 at UCH’s DOT arranged by PYNEH’s DOT (G/917) recorded “[private] XR [x-ray]: no osteochondral fracture seen, patella reduced”. The only private doctor P consulted was Dr J Lam. While Dr J Lam’s medical report dated 22 February 2016 (C/300-301) reported “X-ray showed that the patella was re-located”, there was no suggestion that he ordered fresh x-ray to be taken. It was unclear whether Dr J Lam viewed fresh x-rays that he ordered or x-rays taken at PYNEH on 20 December 2013, but in any event no private x-ray film and/or report were made available to the Ortho Experts or at the trial. 238.Available MRI Report Upon Dr J Lam’s referral, P attended Causeway Bay MRI Centre to have “MR left knee (plain scan)” done by consultant radiologist Dr Michael Yiu (“Dr Yiu”) on 27 December 2013 (ie a week after the Accident). The MRI (magnetic resonance imaging) films were not adduced at the trial. Dr Yiu’s MRI Report of the same date stated as follows (C/302-303):
239.Both Ortho Experts only had sight of the MRI Report, and did not view the MRI films taken by Dr Yiu. As for the reliability and sufficiency of referring to the MRI Report without the MRI films, Dr Wong said in-chief that most of the time orthopaedists rely on radiologists who are specialists with particular skill and interest in viewing, taking and reading MRI imaging. Unlike the orthopaedist who views selected imagings on printed film, the radiologist comprehensively views all imaging slices in coronal, sagittal and axial planes on computer which allows image magnification for detecting the finest structural or soft tissue defect, so for most of the time in daily practice an orthopaedist generally relies on the MRI report and the radiological diagnosis by the radiologist, but may possibly discuss with the radiologist on some surgical plans. Here, Dr Wong was confident to rely on the MRI Report without need to view the MRI imagings. Dr Lam likewise shared Dr Wong’s confidence for he said in-chief that he found it sufficient to render his opinion by viewing the available x-rays (see paragraph 232 above) but without sight of the MRI imagings because “…… I have read the [MRI Report] which was very clearly written about the soft tissue and other factors. And so for the MRI films, [Dr Lam] think it’s not absolutely necessary to see the films because the report has actually said many things, described many things in great detail ……” On balance, I disagree that the absence of the MRI imagings had adverse impact on (a) the overall reliability of Dr Yiu’s observations and radiological diagnosis in the MRI Report and/or (b) Dr Wong’s reliance on the MRI Report. I reject Mr Sakhrani’s suggestion that I should prefer Dr Lam’s opinion because Dr Wong (who relied on the MRI Report as to the shape of P’s left sulcus angle) did not have sight of the MRI films. 240.Available CT scan summary A CT (computed tomography) scan offers more detail than an x-ray study as it shows, eg, bone injury and organ injury. The discharge summary dated 20 May 2014 by UCH’s DOT after the 1st Surgery summed up the findings of the pre-operative CT scan (see paragraph 167 above and G/918-921), including “[trochlear] dysplasia: flat, horizontally orientated trochlear joint surface”, “[lateral] trochlear inclination angle: 6 degree, reduced”, “[trochlear] facet asymmetry: 1.0cm/2.3cm = 43%, reduced”, and “[trochlear] depth: 2.0mm, reduced”. The CT films were not available for the Ortho Experts and/or at the trial. 241.Best investigative tool for sulcus angle? CT scans, MRI and x-rays are all diagnostic tools that allow orthopaedists to see the internal structures of the body, but soft tissue injuries (such as ligamentous injuries) cannot be identified on x-rays. Dr Lam opined that MRI is a more efficient tool for detecting internal structures of the body other than bony structure, eg soft tissue, ligament, cartilage etc, but x-ray is more reliable for detecting bony structure. On the other hand, Dr Wong opined that MRI is a very sensitive diagnostic tool that gives detailed imaging to show pre-existing structural defect such as flattened or almost flattened sulcus angle as well as other internal structures. 242.X-rays X-rays often allow sight of major problems with bones, eg fractures, dislocations, misalignments etc, but they do not show soft tissue injuries or inflammation (eg ligament injury/tear), and they may not always clearly bring out very fine or subtle bone matter (eg Dr J Lam identified loose body in the lateral gutter from x-rays, but in fact there was no record of such bony fragment in the lateral gutter in the intraoperative findings for the 1st Surgery on 9 May 2014 – see discussion in paragraphs 280-288 below). 243.In the Ortho 2nd Jt Report, Dr Lam emphasised the usefulness of the skyline view x-ray knee because such x-ray is taken with the knee in flexion, which reflects “…… the bony anatomy necessary to prevent dislocation when dislocation tends to occur ……” Dr Lam explained in-chief that such angle of knee flexion places the patella within the sulcus similar to the position of the patella “…… in actual running, walking ……” But as Dr Wong correctly pointed out in the Ortho 1st/2nd Jt Reports, insofar as viewing the sulcus angle was concerned, the available x-rays could be degraded to a single x-ray film taken at a fixed degree of knee flexion (ie Figure 6 X-ray). On balance, I prefer Dr Wong’s opinion that without taking serial 2-D x-ray films at different angles of knee flexion one might not be able to find out the true sulcus angle of P’s left knee, especially when there was little dispute between the Ortho Experts that the sulcus angle shown on x-ray changes with different degrees of knee flexion. Indeed, Dr Lam said in-chief it is better to use x-rays to assess the sulcus angle because 2-D x-rays can involve “varying degrees of bending of the knee which is reported in this case” (my emphasis), but there were no serial skyline view x-rays that put P’s left knee through different degrees of flexion, and rather there was just the single Figure 6 X-ray without assistance from the available AP and lateral views x-ray knees. 244.In the Ortho 1st Jt Report, Dr Lam upon reviewing the available x-rays opined that P’s left and right patellae were in satisfactory position, and the femoral sulcus appeared normal. Dr Lam noted (a) the sulcus angle was 128º for right knee and 132º for left knee as measured by skyline view Figure 6 X-ray (ie the left sulcus angle was slighter greater/flatter than that on the right, or to put it differently as Dr Lam did in-chief, “…… the right side is a little bit more acute or better than the left side ……”), which he said were within normal limits, so the sulcus angles for both knees were comparable (or as Dr Lam said in-chief, “…… the difference is not great ……” and “…… [both] are nice V-shapes to [him] ……”), (b) the joint space was preserved in both knees, and (c) the bone density was marginally decreased in the left knee when compared to the right. Dr Lam went on to say in-chief that by eyeballing the sulcus angle in Figure 6 X-ray (which allowed review of the bony anatomy with knees flexed), the left sulcus angle was still in a V-shape and could not be said to be an almost flattened sulcus. In the Ortho 1st Jt Report, Dr Lam opined that upon considering the findings from the available x-rays and correlating them to Dr Yiu’s findings in the MRI Report, the slight anatomical difference between P’s right knee and left knee revealed in the x-rays (ie the left knee sulcus angle was slighter greater/flatter than that on the right but both were still within normal limits) had no strong bony factor that predisposed to further dislocation. 245.Dr Lam agreed under cross-examination he would not disregard the Dr Yiu’s MRI finding of almost flattened left sulcus angle, but he would correlate such finding to other findings drawn from, say, the skyline view Figure 6 X-ray. He suggested that perhaps a radiologist with particular expertise in radiography and MRI imaging may be more concerned with technical radiological investigation, but an orthopaedist dealing with a musculoskeletal case (eg knee injury) has to exercise orthopaedic expertise by correlating the radiologist’s x-ray and MRI findings with the clinical features elicited from the patient and from physical examination as a whole. Dr Lam sagely reminded that the doctor treats the patient and not the x-ray or the MRI. But other than correlating x-ray and MRI findings, Dr Lam did not explain how physical examination of the patient enables an orthopaedist to identify bony structural defect. 246.Dr Wong agreed under cross-examination that (a) an orthopaedist can make a clinical diagnosis of recurrent dislocation of patella, which clinical diagnosis can be verified by MRI that clearly shows (i) any bony structural defect, (ii) any soft tissue defect and (iii) the severity or magnitude of any injury/defect, and (b) the radiologist’s role is to interpret MRI imagings and the referring orthopaedist’s role is to clinically consider what treatment to prescribe and for such purpose the orthopaedist is not constrained by the radiologist’s findings. But in Dr Wong’s opinion, these trite observations would not diminish the usefulness of MRI as a diagnostic tool. 247.In the Ortho 1st Jt Report, Dr Wong noted the MRI Report clearly documented P’s structural defect (ie almost flattening of the left sulcus angle), but the Figure 6 X-ray demonstrated a widened rather than flattened left sulcus angle. Dr Wong opined the single static-film x-ray taken for the Ortho Exam (ie the Figure 6 X-ray) did not reveal the true angle of the left knee for occurrence of left patella dislocation, and suggested this could be clinically correlated by the eyeball approach adopted by Dr Lam (see paragraphs 248-249 below). 248.Dr Wong said in-chief that the Figure 6 X-ray showed (a) the sulcus angle upon measurement and calculation was 128º for right knee and 140º for left knee, and (b) the lateral femoral condyle was smaller. Thus, both Ortho Experts accepted the Figure 6 X-ray showed the sulcus angle was wider on the left side as compared to that on the right side with a difference of 4º (which practically meant the right and left sulcus angles were more or less the same) as assessed by Dr Lam, and 12º as assessed by Dr Wong (which meant the left sulcus angle was widened). 249.But Dr Wong reminded that in respect of the skyline view Figure 6 X-ray, one could measure (presumably this was what the Ortho Experts did with a protractor) the sulcus angle between the 2 tangential lines marked by Dr Lam and Dr Wong in Exhibits P1 and D1 respectively and determine the relative widening or flatness of the sulcus / trochlear groove, and he suggested that just by eyeballing and measuring the sulcus angle of the normal right knee and the affected left knee in Figure 6 X-ray (ie Exhibits P1 and D1) would reveal a difference in excess of 4º. Taking the eyeball and measurement approach adopted by both Ortho Experts, (a) I find the shape of the sulcus / trochlear groove of P’s left knee at Figure 6 X-ray less pronounced than the clear V-shape of the sulcus / trochlear groove of the right knee, (b) I agree with Dr Wong that the lateral femoral condyle of the left knee was smaller (see the above paragraph) which probably contributed to a wider or greater sulcus angle, and (c) I note that upon simple measurement of the tangential lines marked in both Exhibits P1 and D1 with a protractor, the left sulcus angle was 140º and not 132º. Ms Chao referred to the extract of medical literature cited by Dr Lam at pages 28-29 of the Ortho 1t Jt Report to say that 140º was outside “…… the mean sulcus angle in …… females was …… 133.2º ± SD 6.7º ……” and in the left knees it was “…… 134.5º ± SD 6.7º ……” for the cohort under study (D/335-336). 250.In light of the above, Dr Wong’s opinion was plainly more persuasive, but given Dr Lam’s reminder that an orthopaedist should correlate MRI findings with other findings, I turn also to the findings of the pre-operative CT scan that showed P had left knee trochlear dysplasia, which well-correlated with the MRI finding of virtually flattened left sulcus angle and osteosclerosis as well as patella apprehension sign (ie patient feeling the patella is going to dislocate laterally) and J sign in P’s left knee discussed further below. 251.Trochlear dysplasia / CT findings I have explained in paragraph 222 above the position of the trochlear groove vis-à-vis the patella. Its normal shape is a concave V-shape with the lateral aspect a bit higher than the medial side (see normal right knee trochlear groove in Figure 6 X-ray) to keep the patella in its regular position inside the groove, which presumably helps to prevent lateral displacement/ dislocation of the patella. Such bony constraints (ie static stabilisers referred to in paragraph 226 above) interact with the soft tissue stabilisers (see paragraph 226 above) to allow the patella to glide up and down for knee flexion and extension. I pause to note here that Dr Wong opined and I have found the lateral femoral condyle of P’s left knee was smaller (thus different from its normal shape – see paragraphs 248-249 above), and I further find it (a) was bony contribution to the virtually flattened sulcus angle and the trochlear dysplasia of the left knee, and (b) weakened the overall bony stabilisers that functioned to prevent lateral patella dislocation/subluxation. 252.Trohclear dysplasia (ie trochlear under-development or abnormal development) is a congenital bony deformity of the trochlea and can be diagnosed if the V-shape of the trochlea is shallow, widened or flattened, ie the angle of the groove is greater than the normal range. According to Dr Wong, trochlear dysplasia is genetic, and is essentially the same as saying the sulcus angle is widened/flattened. Logically, such deformity must be associated with patellofemoral instability because the patella no longer had the normal bony constraints to provide stability for holding it in its regular position in the trochlear groove, so the patella is then reliant on the soft tissue stabilisers (referred to in paragraph 226 above) such as MPFL and quadriceps to hold it in place, which in turn translates into a bony risk factor for patella dislocation/subluxation. As seen paragraphs 167 and 209 above and as Dr Wong said under cross-examination, trochlear dysplasia with flattened trochlear joint surface has propensity for recurrent patella dislocation. 253.The finding in the post-operative discharge summary dated 20 May 2014 by UCH’s DOT (G/918-920, see paragraph 167 above) that “[trochlear] dysplasia: flat, horizontally orientated trochlear joint surface” meant the joint surface of the trochlea was “flattened” and “horizontally orientated” with “[trochlear] depth: 2.0mm, reduced”, which in turn suggested a shallow trochlea with reduced depth. Another finding concerned the “lateral trochlear inclination angle”, which Dr Wong explained was the inclination from the outer (ie lateral) top ridge of the V-shape of the sulcus to the bottom of the trochlear groove, and the CT finding was “6 degree, reduced”. A reduced inclination from the top of the lateral condyle to the bottom of the trochlear groove could only mean the groove was flat and shallow, which was consistent with the other CT findings of (a) “flattened” and “horizontally orientated” trochlear joint surface and (b) shallow trochlea. Dr Wong gave evidence that these findings of pre-existing bony structural defects were the same as the MRI finding of virtually flattened sulcus angle with less V-shape. 254.Dr Wong opined that a dynamic CT scan or a CT scan taken at different angles of knee flexion was required for clear demonstration for study of a recurrent patella dislocation. But Dr Lam said in his years of orthopaedic practice he had never encountered investigation by dynamic CT scan. Dr Wong said in any event standard CT scan is still more sensitive and more accurate than x-ray as it produces high quality and detailed images of the body including bony structure as well as organs and soft tissues, and Dr Lam accepted that CT scan (unlike MRI) takes/creates 3-D imagings. Dr Lam’s complaint against the usefulness of standard CT scan turns on the position of the patient when the CT scan is taken. He said the patient is placed in supine position with the knee extended (ie leg is kept straight), which does not reflect the bony anatomy when dislocation occurs (ie the knee is usually flexed when running or walking). 255.On balance, I am not persuaded by Dr Lam’s complaint. First, the findings of the pre-operative CT scan were very clear and detailed with quite precise measurements, which, in my view, went a long way to demonstrate the clarity of its imagings as a diagnostic tool. It must be remembered that UCH’s DOT ordered the pre-operative CT scan to guide the 1st Surgery, and the CT findings were focused on the trochlear groove which is a bony structure and on trochlear dysplasia which is a bony deformity. Secondly, given that CT scan takes/creates 3-D images that are viewed by the radiologist through CT equipment or computer (in contra-distinction to the single static film 2-D x-ray), the degree of knee flexion would be less of a concern. Thirdly, the findings of the pre-operative CT scan sat well with those of the Figure 6 X-ray that showed a widened left sulcus angle and the MRI Report that recorded virtually flattened left sulcus angle. 256.MRI Report MRI knee is a commonly performed diagnostic procedure to explore the musculoskeletal pathology of the knee, including bony structure, soft tissues, ligaments, cartilage, tendons, muscles, fluid in and outside the joints, bone bruises, etc. MRI demonstrates abnormalities not only in the bony shape but also the cartilage contour of the trochlea. Dr Wong explained that in cases of severe dislocation there may even be trauma to the femoral bone with possible damage to the cartilage and/or bone fracture (ie osteochondral injury), and MRI is sensitive enough to see chondral/cartilage injury as well as bone fracture.[74] He said sometimes a minor fracture may be missed during surgery but not by MRI. Dr Wong opined that MRI gives a more definitive assessment of the shape of the trochlear groove and the sulcus angle as compared with plain x-ray, and MRI also shows the shape of the soft tissue articular cartilage interface thus giving a more comprehensive picture of the shape of the groove. Nevertheless, Dr Wong agreed that notwithstanding the usefulness of MRI, MRI and X-ray findings should be correlated to identify the sulcus angle. 257.The fact that MRI is also used to detect bony injury/disease (and not just soft tissue pathology) can be seen from the fact MRI shows up both bony tissue imaging (eg the MRI Report reported “intense bone bruises with osteoporosis” which meant there was some oedema or swelling in the bone marrow underneath the bone) and soft tissue imaging (eg ligament, muscle and/or cartilage[75] injury and joint inflammation), which helps the treating doctor to understand the overall knee condition, helps to guide the treatment protocol, and helps to determine the type of surgical procedure for the recurrent patella dislocation in question. The MR (magnetic resonance) protocol in the MRI Report referred to axial, sagittal and coronal imagings with references to “PD”, “T1” (fat signal intensity) and “T2” (fluid signal intensity). Dr Lam acknowledged under cross-examination such signal intensity was not just for detecting soft tissue injury/disease, but also for showing defect in bony structure, eg in the case of bone bruise, the T2 signal is heightened due to fluid in otherwise fatty marrow. 258.On balance, I accept Dr Wong’s opinion that MRI is a very sensitive tool that offers clear contrast resolution for both bony structure and soft tissues, and is an investigative tool of choice for musculoskeletal conditions such as recurrent patella dislocation, including for assessing the sulcus angle. As Dr Wong reminded under cross-examination, even though Dr J Lam, another orthopaedist whom P consulted on 24 December 2013, had access to x-rays (see Dr J Lam’s medical report dated 22 February 2016 (C/300-301)), he also called for MRI left knee as normal investigation. Indeed, as seen in paragraph 274 below, the orthopaedist at PYNEH’s DOT also recommended P to have private MRI left knee. 259.At first Dr Lam claimed MRI was less useful as he thought a standard MRI knee was taken at a certain axis/plane “…… while the sulcus angle was usually measured with the knee in various degrees of flexion. Depending on the method and level of the MRI cut, the sulcus angle may appear flatter ……” (Ortho 1st Jt Report). Dr Lam reminded that the sulcus angle is different when viewed from different planes. 260.But according to the “MR [magnetic resonance] Protocol” in the MRI Report, MRI knee done by Dr Yiu used MRI technology to “slice” through P’s left knee to create cross-sectional MRI imagings in coronal,[76] sagittal[77] and axial[78] planes to reveal different sections of the distal femur and the patellofemoral joint, and MRI imagings (each of which is a thin slice through the knee in 1 of these 3 planes) from these 3 planes were used in conjunction with one another to come up with a fuller picture to facilitate diagnosis of joint/bone and soft tissue problems. The radiologist views the MRI imagings from these 3 planes by computer such that the combined sliced imagings (which could be magnified for viewing by computer) give a picture of the whole, which is in contra-distinction to (a) MRI films that capture only some of the MRI imagings selected by the radiologist, and (b) single plane static film 2-D x-ray. I am not persuaded by Dr Lam’s criticism in the above paragraph. 261.Dr Lam next said that as an orthopaedist he would clinically interpret the MRI results, and in the Ortho 2nd Jt Report and under cross-examination he said (a) the axial plane view MRI knee referred to in the MRI Report is very similar to what he called the “transverse axis”, and (b) the MRI “cross-sectional cut / transverse cut” is taken with the patient in supine position (with the knee straightened/extended) “…… but as far as [Dr Lam knows], it’s just like radially towards the centre ……” Dr Lam explained in the Ortho 1st/2nd Reports and in his oral testimony that a standard MRI knee taken with the patient in supine position is unhelpful because patella dislocation usually occurs when the knee is flexed to some degree, and imaging of the sulcus angle when the knee is extended does not reflect the bony anatomy necessary to prevent dislocation. Dr Lam added in-chief that the trochlear groove is fairly flat when the patient is supine with knee extended, but when the knee is flexed as in the case when skyline view x-ray knee is taken, there is a V-shape. Dr Lam claimed the different positions of the knee during MRI by Dr Yiu and during taking of skyline view Figure 6 X-ray explained why the MRI Report observed there was “almost flattening of the sulcus” but Figure 6 X-ray showed the left sulcus “[obviously] it’s not a flat sulcus”. 262.But MRI by Dr Yiu did not just take imagings on transverse or axial plane. There were also MRI imagings from the coronal and sagittal planes. It was not suggested that MRI imagings on these 2 planes were taken with the patient in supine position. But even if they were, the methodology of MRI as explained in paragraph 260 above showed that MRI imagings from coronal, sagittal and axial planes would act together to give a fuller picture of P’s left knee joint on thin-sliced cross-sectional imagings from different angles, which I believe would go quite some way to relieve the limitations of the supine position. 263.Dr Lam went on to say dynamic MRI (ie “…… the knee has to go through varying degree, say 0 degree, 30 degrees, 60 degrees, 90 degrees of flexion ……”), which Dr Wong opined was required for clear study of recurrent patella dislocation, was rarely done, and Dr Lam had never encountered investigation by dynamic MRI in his years of orthopaedic practice. Dr Lam believed the MRI left knee by Dr Yiu was likely to be standard view, and he doubted whether MRI (unlike a CT scan) could produce a 3-D image, which, even if possible, must be quite rare. I note Dr Yiu himself referred to “3-D” image in his finding in the MRI Report that “[no] intra-articular loose body identified at 3-D image”. Dr Lam said although “3-D” usually meant three-dimensional, he was not sure what Dr Yiu meant because he was not aware of three-dimensional MRI imagings. But in his oral testimony, Dr Lam agreed a standard MRI could produce imagings from 3 planes, ie the coronal, sagittal and “transverse” (or axial) planes, and as an orthopaedist who was not a specialist in radiology he thought computer software might translate these thin “slices” to form a 3-D image. 264.But even if the MRI by Dr Yiu was a standard and not dynamic view and MRI cannot produce a 3-D image like CT scan, I bear in mind Dr Wong’s opinion in the Ortho 2nd Jt Report and in his oral testimony that MRI left knee being computerised thin “slices” of cross-sectional imaging in coronal, sagittal and axial views (and not single plane view) of P’s distal femur and left knee would together enable detailed analysis of P’s left knee structure for they documented the sulcus angle from different planes to give a fuller or even magnified (and hence more reliable) picture of P’s left sulcus angle than Figure 6 X-ray being a single plane static film 2-D x-ray. I see the force in Dr Wong’s opinion. 265.As Dr Lam agreed under cross-examination, MRI and CT scan are more modern diagnostic imaging tools than x-ray which have been around for some time. According to Dr Wong, an x-ray which creates 2-D image by measuring the sulcus angle in 1 plane is still a quick and useful diagnostic tool, but nowadays MRI is the diagnostic tool of choice for diagnosis/treatment of recurrent patella dislocation. But Dr Lam still insisted x-ray is the best investigative tool for ascertaining bony structure defect, eg the sulcus angle. He agreed under cross-examination the medical literature he cited in the Ortho 1st Jt Report[79] stated that “…… [a] thorough analysis of the anatomical risk factors, usually by MRI, is conducted after the first dislocation” (my emphasis) (D/364), and further agreed “anatomical risk factors” cover internal body structures comprising both bony structure and soft tissues (eg ligaments and muscles). But Dr Lam drew attention to another part of the literature that stated “…… [typical] findings in MRI are joint effusion, contusions of the cartilage on the lateral femoral condyle and the medial patella, chondral of osteochondral fragments, and a torn medial retinaculum and MPFL ……” (my emphasis) (which he claimed were soft tissue factors), so “…… the aim is not really to assess the bony structure because we don’t need a MRI to assess the sulcus angle ……” But even though Dr Lam maintained that an orthopaedist (eg Dr J Lam) would have wanted to see a MRI report before making any firm diagnosis and treatment plan for P’s left knee rather than for assessing bony anatomy eg the sulcus angle, he had to concede MRI also looks for bony factors such as “…… osteochondral fragments, to look for bone bruises ……” 266.Dr Lam made 2 other points in the Ortho 1st Jt Report. First, Dr Lam cited an abstract of a piece of unidentified medical literature to suggest that the sulcus angle is usually quite comparable for both knees by whatever ways of measurement, and that differences in techniques/ methods of sulcus angle assessments can explain the differences in their values. Although Dr Lam in page 28 of the Ortho 1st Jt Report (D/335) asked the reader to refer to the appendix for details of such medical literature, I am unable to find such abstract let alone the full article of such literature in the appendix. In any event, as Ms Chao pointed out, in the abstract of the literature Dr Lam cited, the authors used MRI to measure the sulcus angle. Secondly, Dr Lam noted the flattening of the sulcus angle was a finding in the MRI Report but “NOT in other”. But I find it unsurprising there was no other record of this because no other MRI or CT scan was done other than referred to above. 267.Dr Wong opined (and on balance I accept) that the almost flattening of the left sulcus angle revealed by the MRI Report importantly showed P’s left patella was unstable. The fact that the available x-rays showed widening and not flattening of left sulcus angle, the latter of which was recorded in the MRI Report, when correlated to the trochlear dysplasia, reduced lateral trochlear inclination angle and reduced trochlear depth in the pre-operative CT findings reflected that bony abnormality could be sensitively detected by MRI and CT scan rather than by x-ray. 268.In my view, Dr Yiu had the benefit of viewing P’s left sulcus angle by reading cross-sectional “slices” from coronal, sagittal and axial planes in MRI/computer equipment, which would have given him a detailed (and, if required, magnified) picture of the structure of the femur and the patellofemoral joint, which explained why the almost flattened sulcus angle was detected by MRI but not on single plane 2-D Figure 6 X-ray (which still showed a widened sulcus angle). When correlated also to the CT findings and the clinical signs of patella instability discussed below, it was quite clear that P had virtually flattened left sulcus angle. 269.But Mr Sakhrani submitted there were 2 anomalies, and I turn to them now. 270.MPFL MPFL is part of the network of soft tissues that stabilises the knee. Dr Wong explained under cross-examination that MPFL is located in the 2nd layer of the 3 soft tissue layers of the retinaculum within the medial aspect of the knee, running from the patella to the femur, and its main function is to (a) keep the patella in the proper position as it moves and glides in the trochlear groove when the knee is flexed or extended or, in other words, when the knee is bent or straightened, and (b) provide restraining force against lateral displacement. As explained in paragraph 227 above, in a normal/healthy knee, the bones in the patellofemoral joint (including the patella and the trochlear groove) would articulate smoothly with MPFL, which ligament would pull on the patella to restrain its movement, to stabilise it as it moves, and to keep it in track. But when the patella dislocates or subluxes and then self-relocates, soft tissues around the knee are damaged as the patella abruptly slides or partially slides laterally from its groove and is then forcibly pulled back into its groove. Since the patella dislocates or subluxes laterally, MPFL on the medial side can be injured. But a healed MPFL after injury can become lax/loosened, and MPFL insufficiency or incompetency (ie weakened restraining pull on the patella) can lead to patella instability, increased chance of future dislocation and tenderness/ pain (see paragraphs 199, 231(b) and 252 above). 271.Dr Wong noted the findings in the MRI Report included “[medial] rectinaculum appears lax”, “[features] are compatible with lateral patellar subluxation ……” and “[extensor] mechanisms including the patellar and quadriceps tendons are intact”. There was no detection/ mention of any tear in relation to the extensor mechanisms surrounding the patella (which included retinaculum of the left knee), just that the medial retinaculum (and MPFL is in the 2nd layer of the retinaculum) appeared lax. But even though no MPFL tear was detected, such tear was documented in the operative findings of the 1st Surgery in the operation record dated 9 May 2014 of UCH’s DOT (G/921-922) which gave the operative diagnosis as “[recurrent] dislocation of patella (MPFL tear with osteochondral fragment)”. 272.Dr Wong gave evidence that there were 2 possible explanations for the curious mis-match between the MRI Report and operative findings when MRI is a very sensitive diagnostic tool for detecting ligament tear, ie fluid signal in soft tissue from bleeding (even in the borrow inside the bone) and inflammation that are associated with any tear:
273.Mr Sakhrani submitted that Dr Wong’s reliance on the MRI Report to suggest there was no MPFL tear caused by the Accident must be wrong because the operation record stated otherwise, and that the reasons Dr Wong offered were speculative, eg the reason in (b) above must be wrong because the orthopaedist at UCH’s DOT noted “…… [there] is no more patella dislocation since the third episode [ie the Accident] ……” (see medical reports dated 24 December 2015, 30 March 2016 and 19 May 2017 by UCH’s DOT (C/290-292)). It was said this showed full reliance on the MRI Report without the MRI films in support was unsafe, and the court should accept the findings in the operation record were as a result of the Accident. Mr Sakhrani further complained it was not put to P that she had another patella dislocation after the Accident such that additional injuries arose before the 1st Surgery. 274.I start by referring to P’s WhatsApp message to Kwan at 11:02am on 20 December 2013 after she was examined by the orthopedist at PYNEH’s DOT (see paragraph 482 below), which was not referred to by the Ortho Experts or counsel on this point. In such WhatsApp message, P told Kwan the orthopaedist’s advice that “…… 他話無整傷d骨, 主要係應該膝蓋受到密集訓練受唔到哂d力, 所以先會又移位再入返位, 整斷理剩餘的側韌帶, 所以之後會更加鬆 ……” (my emphasis). But as at 20 December 2013 PYNEH’s DOT only took x-rays of P’s left knee, and at that time there was no MRI or CT scan.[80] Since both Ortho Experts agreed x-ray would not show soft tissues such as ligaments, I find the advice “整斷理剩餘的側韌帶” by the orthopaedist at PYNEH’s DOT as reported by P was not any radiological diagnosis pursuant to x-ray (which was impossible) or pursuant to MRI or CT scan (which had not been done), but was a clinical working diagnosis (see “r [diagnosis] Recent patella dislocation 3rd episode due to local MPFL tear” in the patient notes dated 20 December 2013 by PYNEH’s DOT (G/907)) based on features of lateral patella subluxation (see patella apprehension sign, J sign, mild left knee swelling/effusion, “iVMO Ⓛ knee” (reduced VMO (vastus medialis obliquus, “VMO”) of left knee) and in particular “T+ [tenderness] over medial retinaculum of Ⓛ [left] knee” recorded in the patient notes dated 20 December 2013 by PYNEH’s DOT (G/907)) as well as recent patella dislocation, but it had yet to be radiologically confirmed. This dovetailed with P’s evidence under cross-examination that (a) even though the orthopaedist at PYNEH’s DOT recommended her to have MRI, he was unable to make arrangements for her to have one soon and suggested she should see a private doctor to arrange for MRI on private basis, (b) as she felt PYNEH’s DOT could not do anything more for her pending follow-up at UCH’s DOT on 27 December 2013, she requested discharge from hospital on the following day on 21 December 2013, and (c) she consulted private doctor Dr J Lam on 24 December 2013 who referred her for MRI left knee, which MRI was eventually done by Dr Yiu on 27 December 2013. Thus, the possibility of MPFL tear was not stated in the discharge summary dated 21 December 2013 by PYNEH’s DOT (G/909) nor in the medical report dated 28 January 2016 by PYNEH’s DOT (C/289) which gave the formal working diagnosis merely as “recurrent left patella dislocation”. After all, “T+ [tenderness] over the medial retinaculum of Ⓛ [left] knee” was at least consistent with “[medial] retinaculum appears lax” as noted in the MRI Report (see paragraph 271 above), and the other clinical signs were consistent with chronic patella instability (see paragraphs 293-312 below). 275.It was plain from the above that the orthopaedist at PYNEH’s DOT deferred to MRI investigation for confirmation of diagnosis of MPFL tear, which approach sat well with Dr Wong’s view that MRI is a sensitive and diagnostic tool for detecting soft tissue injury/ defect. I bear in mind Dr Lam also opined MRI is a useful diagnostic tool for investigating soft tissues including ligaments (which according to him was in contra-distinction to investigating bony structure). Given the consistent opinion by both Ortho Experts (as well as that of the orthopaedist at PYNEH’s DOT) in this respect, I have no reason to doubt the sensitivity and accuracy of MRI in investigating soft tissues including ligaments and tendons, including any MPFL tear. 276.Further, it is useful to note that the clinical working diagnosis of the orthopaedist at PYNEH’s DOT was not consistent with the mechanism of acute tear of MPFL as a result of patella dislocation. As explained in paragraph 270 above, the function of MPFL is to pull on the patella to restrain its movement, to stabilise it as it moves, and to keep it in track. It exerts a pulling or restraining force from the medial side to prevent the patella from sliding out its groove (ie dislocating) laterally. But where trauma causes the patella to dislocate, the sudden lateral movement of the patella out of its groove will exert lateral pulling pressure on and injure (or even tear) MPFL. Thus, it is the patella dislocation that causes the acute ligamentous tear. But the clinical working diagnosis of the orthopaedist at PYNEH’s DOT was quite different. Rather, it was the other way around, ie the left patella dislocation at the time of the Accident was “due to” MPFL tear. This suggested a chronic situation. As explained in paragraphs 199, 231(b), 252 and 270 above, patella instability events (eg lateral dislocations/subluxations) can injure MPFL on the medial side and when it heals after injury it can become lax/loosened, and MPFL insufficiency or incompetency can lead to patella instability, which in turn further insults MPFL. This accords with P’s WhatsApp message to Kwan at 11:02am on 20 December 2013 (see paragraph 482 below) reporting on the advice by the orthopaedist at PYNEH’s DOT that made no mention of any acute trauma/injury but referred to chronic pressure that overwhelmed the left patella (and hence also the surrounding soft tissues that stabilised the patella) from intensive training, ie “…… 主要係應該膝蓋受到密集訓練受唔到哂d力, 所以先會又移位再入返位 ……” In my view, the clinical working diagnosis by the orthopaedist at PYNEH’s DOT did not exclude the differential diagnoses in paragraph 272(a)-(b) above based on subsequent radiological investigation by MRI, and perhaps even lent support for the reason in paragraph 272(a) above. 277.Turning now to the MRI Report, it carefully recorded Dr Yiu’s comprehensive review of the soft tissues around the patellofemoral joint particularly the surrounding tendons and ligaments, eg quadriceps tendons, the anterior cruciate ligament (ACL), the anteromedial (AM) and posterolateral (PK) bundles, posterior cruciate ligament (PCL), medial collateral ligament (MCL), lateral collateral ligament (LCL), and other muscles and tendons (see paragraph 238 above). Dr Yiu also looked out for soft tissue tears, and noted there was no meniscal tear. He carefully studied and noted (a) the virtually flattened left sulcus angle, (b) the presence of bone bruise at lateral femoral condylar trochlea, (c) the absence of hypoplasia of medial patellar facet, and (d) the medial retinaculum appeared lax, and concluded these features were compatible with (i) lateral patella subluxation (eg (a) and (d) above) and (ii) recent dislocation (eg (b) above). Given the care and precision Dr Yiu displayed in going through and recording his MRI review, I find on balance the finding in the MRI Report was accurate, ie the medial retinaculum appeared lax without acute tear, and had there been acute tear of MPFL, it would have been noted by Dr Yiu and recorded in the MRI Report. After all, MPFL was only in the 2nd layer of the 3-layered retinaculum, and Dr Yiu was even able to view and report on bone bruise that was far deeper underneath the bone. Further, it was also clear Dr Yiu did not forget/ignore the soft tissue in question for he reviewed and recorded that the medial retinaculum appeared lax. On balance, I find it was unlikely for the Accident to result in an acute MPFL tear, and in coming to this conclusion I also refer to the mode of P’s left patella dislocation on 20 December 2013 discussed below. I am not persuaded that the accuracy of the MRI Report in this respect was undermined by the unavailability of the MRI films (see paragraph 239 above), especially when Dr Yiu with expertise in radiological review and interpretation had the benefit of reviewing “sliced” MRI imagings from all 3 coronal, sagittal and axial planes via computer (which imagings could be computer-magnified for fine investigation) and not selected imagings printed on MRI films. 278.It is also interesting to note that the consultation notes of the follow-up at UCH’s DOT on 27 December 2013 scheduled by PYNEH’s DOT did not make any mention of MRI tear but noted “tenderness over MPFL” (G/917). As seen in Part XX below, MRI left knee by Dr Yiu on 27 December 2013 had not been done when P attended UCH’s DOT at 11:24am that day. The plan of management including waiting for MRI results. The above plan by UCH’s DOT together with physical examination findings of “quad wasting”, “mild effusion only”, “J sign +ve [positive]” and “apprehension +ve [positive]” did not paint any picture of acute MPFL tear, and again the orthopaedist at UCH’s DOT deferred to precise investigation by MRI. 279.As for the explanations given by Dr Wong for the operative finding of MPFL tear in May 2014, I find on balance that the reason in paragraph 272(a) above was more probable, ie MPFL tear was a chronic one and such injury caused laxity so that the medial retinaculum (and MPFL was in the 2nd layer of the retinaculum) appeared lax as observed and recorded by Dr Yiu. However, as seen in discussion below on loose body / bony fragment found in the left knee (see paragraphs 280-288 below), it was likely that there was further patella instability event after the MRI on 27 December 2013 and before the 1st Surgery on 9 May 2014, so it might have added further insult to the chronic tear of MPFL. 280.Loose body/fragmentDr Wong explained that in a severe case of patella dislocation (going out of its groove laterally) and self-relocation (forcibly coming into its groove), the concussion between, say, the patella and the femoral condyle as a result of lateral dislocation and relocation will damage the articular cartilage surrounding the knee joint and the underlying bone, and sometimes may cause rupture of the cartilage or cause a slight piece of bone to break off within the joint, say, from the femoral condyle or from underneath the patella. But the MRI Report stated there was no osteochondral injury. 281.Dr Lam opined that if (a) there was indeed severe bony structural defect as almost flattened left sulcus angle and (b) such defect was a major cause or contributing factor to P’s left patella dislocation at the time of the Accident, then the patella would very likely have dislocated easily without the necessary force to, say, knock off a piece of bone in the process of the patella sliding laterally out of the sulcus during dislocation. Dr Lam pointed to the objective evidence that a piece of bone was knocked off in the process, ie (a) Dr J Lam’s medical report dated 22 February 2016 (C/300-301) that recorded “[a] loose body was noted in the lateral gutter” (which was presumably Dr J Lam’s interpretation of the x-rays to which he had access), and (b) the intraoperative arthroscopic findings in the operative record for the 1st Surgery dated 9 May 2014 by UCH’s DOT (G/921-922) that showed there was “osteochondral fragment at medial border of patella”. On such basis, it was suggested that x-ray was more sensitive for detecting bony defect (as shown by (a) above and proved by (b) above) than MRI since the findings in the MRI Report were (a) “[no] intra-articular loose body is found”, “[no] displaced bone fracture is found” and “[no] intra-articular loose body is identified at 3-D image” (which Dr Wong explained in-chief to mean there was no fracture to produce a loose body, ie bony fragment or cartilage, after left patellar dislocation and relocation at the time of the Accident), and (b) “no hypoplasia of the medial patellar facet” (which Dr Wong explained in-chief to mean no regional osteochondral injury) and “[no] osteochondral injury”. 282.On the other hand, Dr Wong emphasised that MRI is very sensitive for detecting chondral injury / cartilage damage, and for ruling out suspected loose bodies, osteochondral lesion and/or bone bruising. Dr Wong said while minor crack/fracture may be missed or misinterpreted in plain film x-ray or even missed during surgery, MRI is sensitive to and crucial in diagnosing osteochondral injury/fracture and consequent bony fragment. Dr Wong opined that since the 1st Surgery was done 4-5 months after the Accident, the mismatch between the MRI finding of “[no] intra-articular loose body” and “[no] osteochondral injury” on the one hand and the intraoperative finding of “osteochondral fragment at medial border of patella” on the other hand highlighted the possibility that P might have had another episode of patella instability event that caused osteochondral lesion on the medial side. 283.Mr Sakhrani submitted that Dr Wong’s opinion was speculative and must be wrong given (a) the intraoperative findings of osteochondral fragment at the medial border of patella, and (b) the orthopaedist at UCH’s DOT noted “…… [there] is no more patella dislocation since the third episode [ie the Accident] ……” (see medical reports dated 24 December 2015, 30 March 2016 and 19 May 2017 by UCH’s DOT (C/290-292)), hence it would be unsafe to rely on the MRI Report without the MRI film. Mr Sakhrani further complained it was not put to P that she had another patella dislocation after the Accident such that additional injuries arose before the 1st Surgery. 284.Turning first to the available x-rays, the first x-rays left knee were taken by PYNEH’s DOT on 20 December 2013 (ie on the same day after the Accident), and the discharge note dated 21 December 2013 by PYNEH’s DOT (G/909) recorded “XR skyline view: No # [fracture] loose body seen” (see also patient notes dated 20 December 2013 by PYNEH’s DOT (G/907) that stated “x-ray: No osteochondral # [fracture]”). Dr Wong said in re-examination that this meant the orthopaedist at PYNEH’s DOT did not detect from the x-rays any fracture with loose body / bony fragment that dropped into the patellofemoral joint, which view was consistent with the MRI findings. Indeed, Dr Wong himself did not see any loose body upon review of the x-rays taken by PYNEH’s DOT. 285.According to Dr J Lam’s medical report dated 22 February 2016 (C/300-301), he observed there was a loose body in the lateral gutter on the lateral (outer) side. But as explained in paragraph 237 above, there was uncertainty as to what x-ray he looked at. If Dr J Lam looked at the x-rays taken by PYNEH’s DOT on 20 December 2016, then the differing views of PYNEH’s DOT and Dr Wong on the other hand and Dr J Lam on the other hand plainly showed that osteochondral fracture and consequent loose body / bony fragment could be easily misinterpreted on plain film x-ray. If Dr J Lam looked at x-rays that he freshly ordered on 24 December 2013, then again the differing views of Dr J Lam and UCH’s DOT (whose orthopaedist reported in the consultation notes for the follow-up on 27 December 2013 (G/917) that “[private] XR [x-ray]: no osteochondral fracture seen, patella reduced”) again underlined how easy it would be to misinterpret bony fragment on plain film x-ray. 286.Further, trying to see a small bony fragment on plain film x-ray was also likely to give rise to false positive result even for orthopaedists with specialised interest in viewing x-ray films for bony injury. Dr J Lam noted the loose body in the lateral gutter on the lateral (outer) side, which was quite opposite to where the osteochondral fragment was found intraoperatively at medial border of patella on the medial (inner) side. As Dr Wong noted, apart from Dr J Lam’s medical report dated 22 February 2016, no MNR and/or medical report by PYNEH and UCH (which hospitals had taken or had access to x-rays) recorded any loose body in the lateral gutter with PYNEH’s DOT saying no fracture or loose body was seen in skyline view x-ray left knee (see paragraph 284 above) and UCH’s DOT saying there was no osetochondral fracture (see paragraph 285 above). In my view, the intraoperative finding was determinative, and the public hospital doctors were proven right and Dr J Lam was proven wrong in that no loose body in the lateral gutter was found. I am unable to place any weight on this aspect of Dr J Lam’s report, which P relied on to suggest that x-ray is a more sensitive and accurate diagnostic tool for bony defects. 287.As regards the intraoperative finding of “osteochondral fragment at medial border of patella”, I note that none of the public orthopaedists at PYNEH and UCH and the private orthopaedist Dr J Lam detected such bony fragment from the x-rays taken. The public hospital orthopadists went so far as to say there was no fracture and/or no loose body (see paragraphs 284-285 above), which echoed the MRI findings of no osetochondral injury and no intra-articular loose body. Indeed, Dr Yiu was careful to look for intra-articular loose body “at 3-D image” but none was seen. Thus, no matter whether x-ray or MRI is more sensitive and accurate for detecting bony defect, both consistently showed there was no “osteochondral fragment at medial border of patella” on/before 27 December 2013. The MRI Report did not mention this. The MRI films/Report should have been made available to UCH’s DOT at the follow-up on 21 January 2014 when P committed to proceed with the 1st Surgery by signing her Consent Form (G/923-927) and when the attending orthopaedist would have been expected to have made observations and given advice on the MRI films/Report (similar to what the orthopaedist of UCH’s DOT did in relation to the private x-rays at the follow-up on 27 December 2013), but the consultation notes for the follow-up on 21 January 2014 were not made available to the Ortho Experts or at the trial (even when MNR on less important pre-operative anaesthetic assessment on 18 March 2014 was available). 288.I agree with Dr Wong that all of the public hospital doctors (who had access to x-rays) and Dr J Lam and UCH’s DOT (who had access to both x-rays and MRI) would not have missed “osteochondral fragment at medial border of patella”, and I accept Dr Wong’s view that MRI particularly gives detailed and high quality picture that can detect minor bony defect (or even marrow oedema[81] as noted in the MRI Report). In my view, these objective factors pointed inexorably towards the only possible explanation, ie there was another left patella instability event after 27 December 2013 and before the 1st Surgery on 9 May 2014 that caused osteochondral injury resulting in “osteochondral fragment at medial border of patella”. Although the medical reports by UCH’s DOT did not refer to further episode of patella dislocation, that silence turned on P’s self-reporting when she already expected there would be upcoming corrective surgery (and she committed to the 1st Surgery at the follow-up on 21 January 2014). I also bear in mind that P’s left knee was not immobilised as she was ambulatory with a walking stick and “[left] knee orthosis” (ie a knee brace) as prescribed by PYNEH’s DOT (C/289). On 27 December 2014, the orthopaedist at UCH’s DOT intended to give P 3-4 weeks’ sick leave, which was understandable since P’s then left knee was quite vulnerable/unstable consequent upon the dislocation/relocation with tenderness at MPFL, mild swelling/inflammation, laxed retinaculum, marrow oedema and injury to the soft tissue support. But P’s insisted on having just 1 day’s sick leave and resuming PI training (albeit on light duty) thereafter. Nothing much could be done to protect the vulnerable/ unstable left knee except (a) to “keep brace 4/52” ie to wear knee brace until the next follow-up on 21 January 2014 at UCH’s DOT for operation decision, and (b) “VMO training” that, according to Dr Lam, was not for treatment of muscle wasting but for training up “…… to balance the knee ……” (ie for walking since P intended to be out and about but had limited walking tolerance), but the 1st physiotherapy session on 28 January 2014 was already after P signed the Consent Form for the 1st Surgery on 21 January 2014. P was not shy of putting her vulnerable/unstable left knee through motions/activities, eg Kwan explained that even though P was on light duty, she still had to go to different buildings/places within the large Premises, and even as an observer she would have to follow other PIs from one location to another during practical exercise. In my view, the situation was ripe for further patella instability, and on balance I find/infer that a subsequent instability event led to the osteochondral injury/fragment on the medial side (see paragraphs 544-545 below). In any event, if the bone fragment was caused by the Accident (which I disagree), the mismatch between the MRI findings and the intraoperative findings did not prove greater usefulness of x-ray to detect bony defect of “osteochondral fragment at medial border of patella” that was discovered only in the course of the 1st Surgery and not by x-ray. 289.Patella alta The Ortho Experts explained patella alta meant the patella did not sit or sink deeply enough into the sulcus to be stable upon knee flexion, so the patella becomes unstable and might displace laterally more easily. Dr Wong said patella alta was a pre-disposing factor for recurrent patella dislocation (see paragraph 167 above). The Ortho Experts agreed that patella alta can be viewed in standard lateral view x-ray knee. 290.In the Ortho 1st Jt Report, Dr Lam stated that upon considering the Blumensaat’s line he found the position of the left patella in Figures 5-8 of such report might be marginally high but was quite comparable in both knees. Dr Lam disagreed the left patella was high-riding (ie patella alta), and claimed that on a straightened knee swollen after recent dislocation, the patella would be displaced more outwards, so it might not be patella alta. 291.Dr Wong initially opined there was high patella or patella alta on lateral view x-ray left knee as supported by the notation of patella alta in the patient’s notes of PYNEH’s DOT for 20 December 2013 (G/907), but upon cross-reference to the pre-operative CT scan findings in the discharge summary for the 1st Surgery dated 20 May 2014 by UCH’s DOT that there was “[no] patella alta or beja” (G/918-920), Dr Wong frankly admitted there was no patella alta as CT scan is much more sensitive and accurate than x-ray. Whilst I need not deal with the matter of patella alta given such concession, I am impressed by Dr Wong’s professional approach of making prompt concession as the circumstances demanded. 292.In the circumstances, I conclude on balance that P suffered from almost flattened left sulcus angle and left trochlear dysplasia that contributed to left patella instability with patella instability events (eg subluxation) after the 2nd Episode. Such instability was also borne out by muscle wasting and other soft tissue signs to which I now turn. 293.Muscular anatomy As explained in paragraphs 226-227 above, the suspension and movement of the patella (and hence patella stability) depend on static stabilisers (ie the bony construct) and soft tissue stabilisers (ie the connective tissues being muscles, tendons and ligaments). The soft tissues are important for stabilising the knee as the patella glides up (straightening) and down (bending) the trochlear groove. 294.The ligaments around the knee that help to stabilise the patella include MPFL and the lateral patellofemoral ligament (“LPFL”). I have explained the anatomy of MPFL in paragraphs 270 above. It is a primary stabiliser that exerts a pulling or restraining force against lateral displacement or dislocation of the patella. As for LPFL, this ligament is also part of the network of soft tissues that stabilises the patellofemoral joint. 295.Dr Lam explained that strong muscles, especially those on the medial (inner) side of the knee, are important because like MPFL they exert a medial-side pulling or restraining force on the patella to prevent it from dislocating laterally (see paragraph 227 above). The quadriceps are a group of muscles (including rectus femoris, vastus intermedius, vastus medialis (ie the medial muscle, “VM”) and vastus lateralis (G/942D)) at the front part of the thigh that help to straighten the knee by moving, stabilising and balancing the position of the patella. According to Dr Lam’s evidence-in-chief, the quadriceps form the extensor apparatus for the knee, and provide force production for running, jumping and playing sports. Dr Lam further explained in-chief that the quadricep tendons attach the quadriceps to inter alia the hip, the femur and the patella. 296.Dr Wong also explained in-chief that the VMO is a component muscle of the VM on the medial side. Dr Lam said the VMO is at the distal (lower) part of the VM that runs in an oblique direction towards the patella. Dr Wong said the VMO’s important primary function is to provide medial support to prevent lateral patella dislocation. This means that if the VMO is weak, there will be less restraint on the lateral pull of the patella, ie patella instability. 297.Cause/development of muscle wasting Dr Lam explained in-chief that muscle wasting occurs when the muscle is reduced and is thinner than muscle on the other side. Dr Lam further explained that muscle wasting can be due to a variety of reasons. It can be caused by (a) physical inactivity that leads to disuse or decrease in the use of the muscle, and (b) persistent/recurrent pain inhibition (ie loss of muscle contractability upon pain over time), and swelling or “…… inflammation can also cause wasting of the muscle, …… if the pain has been there for some time ……” Dr Lam explained that pain may cause muscle laxity because when the muscle contracts to be “stiffer” or stronger it will cause pain, so the muscle tends to relax so as not to pull on painful area. Muscle-wasting is consistent with some structural defect, but it can occur even without structural defect. Dr Wong said in-chief that it takes months rather than weeks to develop muscle wasting, so detecting wasting shortly after the Accident would indicate a chronic rather than acute problem. Dr Lam said in the Ortho 1st Jt Report it would usually take some time, say, 2-3 weeks for wasting to become evident. 298.Assessing muscle wasting Dr Wong explained in-chief that muscle wasting is assessed either by eyeballing observable difference in the size of the thigh or by measuring some landmark marked on the leg. Dr Lam said under cross-examination that assessing muscle wasting by measurement is more accurate, and he explained in-chief that in measuring the quadriceps, its thickness should be equal for both legs at the level of 10cm above patella and may vary slightly at 5cm above patella, but any difference less than 1cm is regarded as comparable. 299.Record of muscle wasting Dr Lam noted the medical report dated 1 April 2015 by UCH’s DOT stated inter alia that after the Accident P was seen at their clinic on 27 December 2013 and “…… clinically, wasting of the quadricep muscles was evident. Tenderness was elicited over her [MPFL] ……” Dr Lam opined under cross-examination that UCH’s DOT only made an eyeball assessment of muscle wasting as no measurements were noted. In the Ortho 1st Jt Report, Dr Lam agreed it would usually take, say, 2-3 weeks for wasting to become evident, so the finding of wasting of quadriceps about a week after the Accident “…… might suggest there was more significant pre-existing problem and already some wasting in the left quadriceps before the [Accident] ……” 300.But Dr Lam claimed in-chief there was no mention of muscle wasting in MNR of the doctors who saw P “immediately after the Accident and for the next few days ……”, and upon scrutinising various other medical documents for clinical correlation he found no mention of muscle wasting or significant muscle wasting:
In the circumstances, Dr Lam opined that even though UCH’s DOT documented wasting of quadriceps muscle and despite history of recurrent left patellar dislocations in 2003 and 2006, it was likely that P enjoyed rather painless and satisfactory function in her left knee before the Accident. 301.Under cross-examination Dr Lam’s attention was drawn to the patient notes dated 20 December 2013 (ie the day of the Accident) by PYNEH’s DOT (G/906-907) that recorded “iVMO Ⓛ knee”, so he was constrained to agree that on the very day of the Accident, P’s left VMO was noted to be reduced. But Dr Lam pointed out that when P saw Dr J Lam 4 days later no muscle wasting was noted. In the Ortho 1st Jt Report and in his oral testimony, Dr Lam recognised that muscle wasting was noted by the orthopaedist at UCH’s DOT 7 days after the Accident, but he explained it was because “[with] swelling in the knee, the quadriceps (thigh) muscle may appear a bit thinner”, ie the swelling around the knee might give the impression that left thigh muscles were thinner than those on the right leg on eyeball assessment, but it did not mean there was significant wasting in the quadriceps. When it was put to Dr Lam under cross-examination that (a) the MRI Report noted MRI left knee done on 27 December 2013, ie 7 days after the Accident, only showed “[small] amount of joint effusion ……” in the patellofemoral joint itself and (b) on the very same day UCH’s DOT recorded clinically that wasting of the quadriceps muscle was evident, Dr Lam maintained “…… there could still be swelling around the knee, even without gross effusion. It really depends on how you look at it, how you interpret it ……” But when Dr Lam’s attention was drawn under cross-examination to the consultation notes dated 27 December 2013 by UCH’s DOT that recorded “quad wasting” and “[mild] effusion only”, he finally agreed “…… there would not be significant or gross swelling ……” I note with interest that at the 1st “VMO training” session at TKOH’s physiotherapy department on 28 January 2014, there was mild swelling over left knee but quadriceps muscle wasting was noted (see physiotherapy reports dated 19 November 2015, 18 January 2016 and 21 February 2017 by TKOH’s physiotherapy department – C/294-299 and G/916). But by the time of the next session on 14 February 2014, the clinical management sheet of TKOH’s physiotherapy department (G/916) noted “O/E [on examination]: Swelling° [negative] over Ⓛ knee ……” but “[mild] Quad [quadriceps] wasting+ [positive] ……” Plainly, quadriceps wasting was observable even without left knee swelling. 302.Dr Lam said under cross-examination that in any event it would be difficult to assess the VMO bulk immediately after injury because the muscle would tend to relax with pain, especially as there was a tear over the medial structure on the medial (inner) side being the side that the VMO inserts right over the medial retinaculum to the inside of the patella where the medial condyle is.[82] As a result of patella dislocation and medial side tear, there would be pain and the VMO would try to relax itself rather than pull on the injured area (see paragraph 297 above), and the VMO would not show itself in its normal status. 303.On balance, I prefer Dr Wong’s opinion discussed below and find myself unable to rely on or accept Dr Lam’s opinion above. First, it was not correct to say that apart from the record by UCH’s DOT on 27 December 2013 there was no documented muscle wasting. In fact, almost all MNR shortly after the Accident except Dr J Lam’s medical report dated 22 February 2016 documented muscle wasting. “iVMO Ⓛ knee” was noted on the very day of the Accident by PYNEH’s DOT, which coincided with the records by UCH’s DOT and by TKOH’s physiotherapy department (see paragraph 301 above). Dr Wong explained (and I accept) that clinicians never record relaxed muscle by the “reduce” sign of “i”, which sign clinicians generally use to indicate reduction in size of the muscle. In the Ortho 1st Jt Report as further clarified in his examination-in-chief, Dr Wong noted that “…… [clinically], examination by colleagues at UCH …… documented, wasting of quadriceps muscle. The features indicated pre-existed structural defect related to or leaded to recurrent dislocation of left patella ……” On balance, I accept P’s VMO/quadriceps muscle wasting was not caused by the Accident but was pre-existing. 304.I accept (as Dr Wong did) that since no measurements were recorded, PYNEH’s orthopaedist must have eyeballed muscle wasting of the VMO. On balance I do not accept Dr Lam’s suggestion that there was in fact no or minimal muscle wasting because intense swelling of the knee at the time led to the perception that the muscles looked thinner. Dr Wong disagreed with such opinion, and on balance I prefer Dr Wong’s stance. First, there was in fact no major or dramatic swelling whether in the joint or subcutaneous tissue after the Accident (see paragraph 301 above). Secondly, even if there were severe swelling as suggested (but in fact there was not), it would have masked the wasting and would not have led to perception of wasting when there was not. 305.Dr Wong concluded that VMO and quadriceps wasting particularly emphasised by orthopaedists at PYNEH’s DOT and UCH’s DOT very shortly after the Accident was a “significant” finding as it demonstrated such muscle wasting was not caused by the Accident but existed before the Accident. I agree with Dr Wong this reflected chronic rather than acute condition, which was associated with an unstable left patella with decreased use probably due to pain inhibition (see paragraph 297 above), which meant P’s left knee condition was not satisfactory or pain-free after the Accident. 306.Clinical/functional correlation Dr Lam opined that clinical/ functional considerations were far more important, and in the Ortho 1st/2nd Jt Reports he relied on the factual assumptions that prior to the Accident P (a) was active in sports, (b) probably passed some physical test before enrolment at the College, and (c) underwent active training for 9-10 weeks at the College to opine that there was unlikely to be significant wasting of the quadriceps (if any) before the Accident, and that the muscle forces in P’s left knee should give good protection against further dislocation. Dr Lam expected that “…… even if the VMO is decreased, it’s only decreased marginally ……”, “…… a little bit wasted or a little bit decreased, this should be rather insignificant clinically ……” 307.I will deal with the Physical Fitness Test and P’s physical training in the course of her PI training in Part VI(d) and Part X below. Suffice to state here the details of the individual tests and/or training exercises did not necessarily show there would not have been any muscle wasting prior to the Accident. Given the fact that it would take weeks (according to Dr Lam) or months (according to Dr Wong) for muscle wasting to occur, the fact that it was noticeable to the orthopaedists at both PYNEH’s DOT and UCH’s DOT even on eyeball basis went a long way to show there was muscle wasting which spoke of decreased activity and pain inhibition prior to the Accident, which dovetailed with the record of on-and-off left knee pain for 5 years by TKOH’s HoHCS, the need for modified/additional physical training at the College, and the fact P was excused from taking certain physical training tests during PI training. 308.By the time of the Ortho Exam, P’s left knee condition had improved. According to the Ortho 1st Jt Report, physical examination by measurement of thigh girth at 5cm above upper pole of patella was 40cm (right) and 39.2cm (left) and at 10cm above upper pole of patella was 43cm (right) and 43cm (left) (D/327). Both sides were comparable and there was no longer wasting of P’s left quadriceps which muscle was back to normal, but the left knee was still a bit stiff. This showed that when there was no pain or no decreased use as a result of patella instability (ie the left patella was stabilised by reconstruction/corrective surgery and P underwent 137 sessions of intensive muscle strengthening physiotherapy sessions), there would not be muscle wasting. 309.I now turn to other objective signs that P’s left knee had chronic condition of patella instability. 310.Chronicity: osteosclerosis There were findings in the MRI Report (C/302-303) of “[intense] bone bruise with osteosclerosis …… at lateral femoral condylar trochlea, which is in direct contact with the inferior pole of patella. Focal bone bruise is present”, “[patchy] bone bruise is noted at bilateral femoral condyle and medial tibial edge”, and “[patchy] bone marrow oedema is noted at bilateral condylar edge and medial tibial edge”.[83] The MRI Report detected osteosclerosis which reflected the pre-operative status of P’s left knee. Dr Wong explained under cross-examination (and on balance I accept) that (a) osteosclerosis meant bone increase on the surface, and the MRI Report indicated increased bone formation at “lateral femoral condyle trochlea” where there was intense bone bruise, and (b) chronic/repeated stimulation (ie chronic/repeated processes of increased stress/pressure) around this area led to increase in bone/sclerosis formation,[84] so it was likely there had been repeated stimulation by recurrent patellar instability events (at least subluxation if not dislocation) that caused stress around P’s left knee leading to increased bone formation over this area. 311.Chronicity: patella apprehension sign Dr Wong explained under cross-examination that, apart from muscle wasting and osetosclerosis, various tests administered shortly after the Accident by RTSHH’s AED, PYNEH’s DOT and TKOH’s physiotherapy department showed P had pre-existing recurrent and chronic left knee problem. MNR dated 20 December 2013 by RTSKH’s AED (G/905) recorded “[apprehension] test +ve [positive]”, the consultation notes dated 27 December 2013 by UCH’s DOT (G/917) recorded “apprehension +ve [positive]”, and the clinical management sheet dated 28 January and 14 February 2014 by TKDH’s physiotherapy department (G/916) also recorded patella apprehension sign for both days. Dr Wong explained under cross-examination that the patella apprehension sign is a physical sign in which forced lateral displacement of the patella produces anxiety and resistance on the part of the patient with history of patellar instability. During the apprehension test the patient is in a supine position, and the clinician applies outward pressure onto the patella and asks the patient to flex the knee. The test is positive if it produces apprehension, ie the patient feels instability of knee, has the sense of the patella is about to displace laterally and asks the clinician to stop. The purpose of the patella apprehension test is to find out if the patient has been having symptoms of subluxing/dislocating patella. Dr Wong further explained the patella apprehension test should/could not be performed on a patient with acute trauma/injury because of severe pain elicited after the trauma. On balance, I accept Dr Wong’s opinion that the patella apprehension test performed and confirmed positive by RTSKH’s AED, PYNEH’s DOT and UCH’s DOT immediately and shortly after the Accident suggested P had chronic patellar instability rather than an acute condition. P obviously had past experience of chronic left patella subluxation/dislocation so when the doctors applied outward pressure onto her left patella and asked her to flex the knee, she immediately apprehended that the patella was about to sublux/dislocate and asked to stop. 312.Chronicity: J sign The patient notes dated 20 December 2013 by PYNEH’s DOT (G/906-907) recorded P’s left knee “swelling + [positive]”, “effusion mild”, “temperature warm”, “AROM [active range of movement] 0-80º”, “Q angle 15”, “Fem Ant [femoral anteversion] 20” and “J sign positive”. The consultation notes dated 27 December 2013 by UCH’s DOT also documented “J sign +ve [positive]”, and the clinical management sheet dated 28 January and 14 February 2014 by TKOH’s physiotherapy department also recorded J sign was positive on both days. Dr Wong said under cross-examination that of the above findings the most important one was the J sign, which means the maltracking patella tracks in a reverse J-shape when the knee is flexed or, in other words, the laterally subluxed patella shifts as if to come out during flexion. Thus, a positive J sign suggests patellar maltracking and potential patellar instability. The fact that both PYNEH’s DOT and UCH’s DOT (which had been following-up on P’s left knee condition for 10 years) documented positive J-sign shortly after the Accident clearly showed P’s left knee was unstable prior to the Accident. 313.Summary In my view, P had a number of risk factors for left patella instability and higher chance of left patella dislocation/ subluxation in the period after the 2nd Episode and before the Accident: (a) she had recurrent left patella dislocations in 2003 and 2006, (b) she opted for conservative treatment, (c) her left sulcus angle was almost flattened, (d) she had elevated TT-TG distance in left knee, and (e) she had trochlear dysplasia. She also had clinical signs of actual (and not just propensity for) chronic left patella instability with occurrences of patella instability events (probably patella subluxations if not actual dislocations), eg (i) on-and-off knee pain for 5 years, (ii) lax medial retinaculum, (iii) VMO/quadriceps wasting or reduction, (iv) osteosclerosis at/about lateral femoral condylar surface, (v) positive patella apprehension sign, and (vi) positive J sign. On balance I agree with Dr Wong it was likely that P had more patella instability events (probably chronic patella subluxations if not actual dislocations) after the 2nd Episode and prior to the Accident. This came as no surprise since (1) P did not have corrective surgery to fully stabilise the left patella after the 2nd Episode, (2) as a result she was unable to have and did not have sufficiently extensive and intensive muscle strengthening physiotherapy to shore up medial soft tissue support for the left patella, (3) P continued to play handball and basketball that involved high physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres (albeit not at high level), and (4) P underwent 10 weeks of physical training at the College (albeit with modified training and excused from some physical training tests) that put stress and pressure on her weakened and unstable left knee causing patella instability and consequent tenderness and soft tissue incompetence. 314.Although there were only 3 documented patella dislocations and P told the Ortho Experts at the Ortho Jt Exam that other than the 1st/2nd Episodes and the Accident she did not have further injuries to her left knee, the medical reports dated 24 December 2015, 30 March 2016 and 19 May 2017 by UCH’s DOT (C/290-292) carefully noted there was no “recorded” dislocation after the 2nd Episode, so much turned on P’s self-reporting. But the above discussions and conclusions showed P had not been reliable in respect of her account as to what happened during that period, including her claims that she played vigorous sports such as handball and basketball at high level, and that she was asymptomatic and pain-free. In my view, there was a lot to be said for Dr Wong’s opinion in the Ortho 1st Jt Report and in his oral evidence that with P’s structural defects (see paragraph 313(a)-(e) above) and chronic knee instability (see paragraph 313(i)-(vi) above) that were correlated to the findings in the MRI Report, P’s left knee probably had more patella instability events than P claimed. 315.In the circumstances, my findings as to the P’s pre-existing left knee condition undermined the underlying factual assumptions that Dr Lam relied on for his clinical/functional correlation to support his contention that P was pain-free and had satisfactory function after the 2nd Episode. I have found she was not pain-free and she did not vigorously play handball or basketball at high level after the 2nd Episode, so as Dr Lam acknowledged, “…… that would shift the whole thing ……” and he would not in face of such findings say P was functionally good before the Accident. 316.For convenience, I shall in this Judgment refer to the aforesaid pre-existing condition of P’s left knee set out in Part V(e) herein as “P’s Knee Condition”. (f) Previous injury to right shoulder/hip/knee 317.According to the consultation summary of TKOH’s DOT clinic for the consultation on 31 July 2014 (G/912), the following history was recorded:
The doctor’s impression at such consultation was (a) right mild frozen shoulder “secondary to previous injury”, and (b) “right hip ?FAI [femoroacetabular impingement]” with planned follow-up in 6 weeks and x-ray bilateral hip. When P followed-up on 11 September 2014 for right shoulder stiffness and “right hip pain ?FAI [femoroacetabular impingement]” (G/913), the same history was recorded, but instead MRI right hip was planned. When P further followed-up on 4 December 2014 (G/914), the same history was recorded, and MRI results were pending. MRI right hip results were available on 13 February 2015 (G/915): (i) the recorded clinical information from the referring clinician was “S/F [slip and fall] landed on Rt [right] side of body 8/2013, persistent Rt [right] hip pain since then, hip joint tender, pain on external rotation, usual pain proved by FABER [flexion abduction external rotation], ?FAI [femoroacetabular impingement]”, and (ii) the impression was “[marrow] edema and subtle Cam-lesion at the anterior head-neck junction of R [right] femur, [no] acetabular labral tear or obvious cartilage defect can be detected”. 318.The Ortho Experts also noted in the Ortho 1st Jt Report that according to available MNR (a) P had history of slip and fall in August 2013 landing on right side of body, (b) she attended TKOH’s DOT since about July 2014 for right shoulder, knee and hip pain, (c) the clinical impression was right mild frozen shoulder secondary to “previous injury”, but (d) surgery was not required. According to Dr Lam, P did not disclose to the Ortho Experts the slip and fall incident in August 2013 for which she attended TKOH’s DOT. 319.Under cross-examination, P initially said she did not remember the slip and fall incident in August 2013 (which happened very shortly after P had the Medical Examination on 31 July 2013 as required by HKPF for recruitment purpose – see paragraphs 330-331 below), but thought she might have fallen down a staircase at HKUST. P said she probably attended TKOH’s AED but did not receive any treatment, and she was probably referred to TKOH’s DOT. She recalled a long time elapsed before she had an appointment for MRI right hip. 320.When cross-examined on whether she had right hip pain since August 2013 as recorded in TKOH’s MNR (see paragraph 317 above), P said “[that] happened occasionally but not persistently”, and agreed she “…… somehow felt stiffness ……” even after she left the College in January 2014. Further, according to the Ortho 1st Jt Report, P told the Ortho Experts she attended a chiropractor for right hip/knee/ankle problems for 5-6 times with some improvement after treatment. But even though MRI right hip was done in 2014 with results available in 2015, P claimed she did not have active treatment for the stiffness problem, and follow-up was eventually discontinued. But there was no MNR to show P’s case was closed or she was discharged from follow-up or when this happened. The summary of attendance records and medical receipts (F/705-708) showed P attended TKOH’s specialist outpatient clinic 4 times in 2015[85] and 6 times in 2016,[86] and attended TKOH’s AED 5 times in 2015-2016,[87] but the reasons for such medical consultations were unknown. 321.As for “right hip click+ [positive] during marching” (my emphasis) in TKOH’s MNR, P said her right hip did click but not often, and it did not affect her daily life or sport activities. P was not very sure what TKOH’s doctor meant by “during marching”, but explained that her right hip would click when she raised her right leg in certain postures similar to marching during physiotherapy sessions after the 1st Surgery in May 2014. P suggested that as she could not exert too much force with her left leg during such post-surgery period, so “all the force used was focused on the right leg” during walking. 322.P was subsequently cross-examined on the Questionnaire (see paragraph 354 below) which she filled in and signed for the Physical Fitness Test for PI recruitment purpose. Under cross-examination, P gave detailed particulars of her attendance at TKOH’s AED after the slip and fall incident in August 2013, saying the doctor at TKOH’s AED told her there was no problem after reviewing the x-ray that was taken. P went on to testify as follows:
None of these allegations were borne out by MNR as P did not adduce MNR of P’s attendance at TKOH’s AED in August 2013. 323.On balance, I do not accept P’s account in the above paragraph. Given her initial vague collection under cross-examination in which she almost did not recall the incident, the glory of details that came about in subsequent cross-examination was suspect. In my view, it was nothing more than a poor attempt to justify why this slip and fall incident/ injury was not declared to HKPF in the Questionnaire. P did not say when she last followed-up with UCH’s DOT, and did not explain why she raised the Physical Fitness Test with the doctor at TKOH’s AED who treated her for her slip and fall injury, but did not direct her enquiries to UCH’s DOT who was well familiar with her left knee condition as it had followed-up on the same for more than 10 years. I find P’s evidence in this respect unreliable. 324.Dr Lam said under cross-examination that P landed on the right side of her body in her slip and fall in August 2013, so it did not involve the left knee, and such incident would not have affected his assessment of P’s left knee condition. On the other hand, Dr Wong in the Ortho 1st Jt Report suggested P’s slip and fall incident in August 2013 “may be related to another episode of patella dislocation as [in the case of the Accident]”. Dr Wong agreed (a) there was no actual evidence this was another left patella dislocation, (b) MNR of TKOH’s DOT in 2014/2015 did not say the “previous injury” (see paragraph 317(a) above) was left patella dislocation, and (c) he was “a little bit skeptical” in suspecting P’s slip and fall in August 2013 might have been caused by instability feeling of the left knee. In my view, the minimal factual evidence about the slip and fall incident in August 2013 and the paucity of relevant MNR save for a brief entry a year or so later were insufficient to lead this court to conclude such incident was caused by left patella subluxation. VI. RECRUITMENT AS PI OF HKPF (a) Recruitment as PI 325.Application According to the Psy Jt Report, whilst at HKUST P developed an interest in pursuing a career with HKPF. She participated in the police mentorship programme and undertook internships with HKPF during her time at HKUST. According to P’s CV, she worked as police public relations branch intern from June to August 2012. She enjoyed the work, and applied to join HKPF as PI. P said under cross-examination that she made her application to HKPI in 2012 (ie before graduation from HKUST). After graduation from HKUST, she secured work with Cathay Pacific as a supervisor/management trainee (in August/September 2013) pending notification by HKPF as to whether she would be accepted. She explained that she had to earn a living before then. 326.In July/August 2013, P was informed by HKPF to undergo medical examination and physical fitness test for recruitment purpose. In late September 2013, she was accepted to join HKPF as PI with effect from 7 October 2013 (see paragraphs 374-375 below). According to the Psy Jt Report, she told the Psy Experts she was very happy when she was accepted as this had been her dream since she was a child. She felt she had finally achieved something remarkable despite her underprivileged upbringing. Her parents/relatives were all very proud of her, and her parents even cried on hearing her acceptance into HKPF. Her elder brother also showed appreciation of her achievement. P told the Psy Experts she hoped to help her parents change their fate with her achievement. 327.At the Psy Jt Exam P told the Psy Experts she knew HKPF required physical fitness for PI training at the College and she prepared herself for it, and she said under cross-examination she knew PI training would be tough with physical exercises/tests. So in the P 1st WStmt and the Psy Jt Report, P claimed that to better prepare for PI training upon joining HKPF, she exercised most days of the week in the months leading up to enrolment at the College. She purposefully got up earlier (ie at about 5:00am) to do sit-ups and other exercises at home before going to work, and she did more exercises after work and on weekends, eg she would run (3-4 times/week for about 1 hour each time), swim (3-4 times/month for about 1½ hours each time) and play basketball with her friends (twice/week for about 3 hours each time) after work or during weekends. 328.In my view, 2 matters were of note. First, P had set her ambition to be an IP. It was plain this was not just her own dream for she also carried with her the pride and hopes of her family/relatives. P confirmed under cross-examination she knew she had to meet the passing standards of the Physical Fitness Test if she were to work for the disciplined forces. But I have found she had (and she knew she had) chronic and symptomatic pre-existing P’s Knee Condition with muscle and soft tissue weaknesses, on-and-off pain, sub-optimal functionality and left patella instability (even if she might not have known the bony structural defects). In my view, given P’s Personality, P was determined to become enrolled as a PI at the College, and she would not have let P’s Knee Condition (which she was aware as explained above) stand in her way. I find on balance P approached the recruitment procedures with such mindset, which was consistent with her approach to the Medical Examination (including the Health Declaration) and the Physical Fitness Test (including the Questionnaire) as explained below. 329.Secondly, in light of my findings in relation to P’s Knee Condition, I am not persuaded that prior to and at/about the time of HKPF recruitment in mid-2013 P’s left knee was in well state and/or she increased the level of exercises/training in preparation for the physical examination for recruitment to the extent as she claimed in paragraph 327 above. These assertions did not sit well with my findings as to the pre-existing P’s Knee Condition including quadriceps/VMO wasting, on-an-off left knee pain and patella instability. They also flied against the medical advice to refrain from playing basketball that involved high physical demand on the knees with twisting motions and/or quick- pivoting manoeuvres, and on balance I disagree P would have played basketball twice a week for about 3 hours each time. It was also strange that P claimed she would swim 3-4 times a month for 1½ hours each time when the physical training instructor at the College documented in the PT Record (which I have found to be based on information from P) that “[P] is a non-swimmer” (see paragraph 171 above). This raised query over P’s veracity as to her allegations in paragraph 327 above and/or her account of having played vigorous sports in the PT Record. But if P did increase the level of her exercises/training in the months leading up to the Physical Fitness Test in mid-2013 (albeit not to the level as claimed), they would have exacerbated P’s Knee Condition by stressing her left patellofemoral joint which was already unstable with weakened support mechanisms, and in my view, the relevant biometrics would probably have led to imbalanced patella tracking and patella instability events (eg patella subluxations) (which would explain P’s positive patella apprehension sign and positive J sign), provoking on-and-off pain and discomfort. (b) Recruitment procedures 330.P had to pass (a) a medical examination (ie a health check) (“Medical Examination”) and (b) a physical fitness test (“Physical Fitness Test”) before HKPF would recruit her as a PI. Prior to P’s recruitment as PI of HKPF, she did not inform HKPF about her previous left patella dislocations, her on-and-off left knee pain and her pre-existing P’s Knee Condition even though at the time of the Medical Examination she did recall she had suffered the 1st/2nd Episodes for which she received treatment and she had follow-ups for her left knee at UCH’s DOT. Ms Chao submitted (but Mr Sakhrani disagreed) P deliberately concealed her pre-existing P’s Knee Condition to better her chance of becoming a PI. (c) Medical Examination 331.Overview On 25 July 2013, P (a) acknowledged receipt of a letter from HKPF requesting her to contact medical contractor Dr Vio & Partners Limited to arrange and attend a Medical Examination before 8 August 2013 (F/718-719), and (b) signed a consent to Medical Examination (F/731). The purpose of the Medical Examination was for “employment as Police Force Recruit” (F/727). The Medical Examination was conducted by Dr Lee Ching Ying Angela (“Dr Lee”) on 30 July 2013 (F/727), and comprised a self-completed health declaration (F/730), various medical tests and examinations (F/728) and various immunology laboratory tests (F/729). 332.Health declaration P agreed under cross-examination she was responsible for filling out the health declaration which was her own declaration about health matters within her own knowledge. Indeed, on 30 July 2013 she filled in such health declaration form before she saw Dr Lee (“Health Declaration”, F/730):
P signed in a stamped box that was affixed at the space under “Details” and also in the space for the examinee under the declaration. 333.P agreed under cross-examination that at the time of filling out the Health Declaration she knew she had to declare all related health conditions for the purpose of the Medical Examination, and claimed she had provided true/complete answers in the Health Declaration despite not having disclosed the 1st/2nd Episodes and P’s Knee Condition. 334.Question No 1 Turning to the 1st question in the Health Declaration (ie whether P had been hospitalised for treatment or operation), P gave an affirmative answer and in the box labelled “Details” below she gave “鼻敏感” (nose allergy) because P claimed “that’s the most recent problem”. P did not give details about any pre-Accident treatment or follow-up(s) at which hospital/clinic for her “nasal allergy”, and there was sparse information in the available MNR about P’s nasal allergy treatment or follow-up (see paragraph 147 above). 335.During cross-examination, P tried to expand on the “details” of her nasal allergy by saying “…… [her] respiration was affected by [her] nose allergy. If [her] nose was blocked, then [she] would have some sort of feeling of breathing problem. But there was no problem, it is stable and [her] nose is seldom blocked ……” It was interesting that even on P’s own case she chose to put down in the Health Declaration nasal allergy for which she allegedly received recent treatment at TKOH’s ENT clinic (but the frequency of such treatment was unknown) (see paragraph 147 above), but which condition was stable and did not cause her any problem as her nose was seldom blocked. 336.Mr Sakhrani submitted P was upfront about previous hospitalisations and about her “nose allergy” which indicated she was not deceptive. But it begged the question why on P’s own case she did not similarly declare the pre-existing P’s Knee Condition with 2 previous left patella dislocations that required AED treatment with transfer to DOT care and further required regular follow-ups for about 10 years (which follow-up was then still current) but such condition was stable and did not cause her any problem. 337.One would have thought left patella dislocations that occurred twice in the past and required regular orthopaedic monitoring and follow-ups for 10 years would have more meaningful relevance to physical fitness for physical training at the College than nasal allergy that seldom resulted in blocked nose. P then tried under cross-examination to draw a distinction by saying for “nasal allergy” “…… [she] did attend regular follow-up treatment in [TKOH] and [she] was prescribed with some sort of spray for [her] nose. [P] put it down here [in the Health Declaration] because [P] was prescribed with medicine for [her] to use if necessary, as a form of treatment …… Because for nose allergy, one will not know when there will be some stimulant causing trouble to it ……” On balance, I do not accept P’s explanation. As recorded in the Ortho 1st Jt Report, P had “[asthma] since childhood, requiring “puffs” on need-to basis”. So the “puffs” or “spray” (ie nose inhaler) was for asthma and not nasal allergy. This was borne out by the post-Accident medical records which stated P was prescribed “prn [pro re nata or as needed] ventolin” for asthma with follow-up at TKOH (see paragraph 144 above). As the medication was for asthma rather than nasal allergy, so even on P’s own case there was little distinction between nasal allergy and P’s pre-existing left knee condition to justify declaring the former but not the latter in the Health Declaration, which necessarily gave pause for concern that it was a conscious choice in not declaring the latter. 338.Further, since P was thinking about her nose at the time of filling out the Health Declaration, I find her failure to declare her asthma condition telling. Her last attack was 4-5 years ago for which she actually received in-patient hospitalised care, and she followed-up at TKOH with medication (ie nose inhaler to be applied as needed) prescribed (see paragraph 146 above). P should have declared her asthma condition under question no 1, but she did not. In my view, nasal allergy was obviously perceived to be a less serious respiratory condition than asthma although P claimed both to be stable and posed no problem, so P did not disclose the latter, which lent weight to my view that P gave poor and unreliable explanation as to why there was silence about her left knee in the Health Declaration. 339.It is interesting that after P started PI training at the College, the physical training instructor recorded in the PT Record P’s conditions pertinent to physical training as follows: “[her] left patella dislocated twice in 2005 and 2009 respectively. She suffered mild asthma and a benign condition of Incomplete Right Bundle Block for Heart” (F/735 – see paragraph 171 above). Whilst patella dislocations and “mild asthma” were worthy of mention in relation to physical training (for the latter presumably because of risk of attacks with airflow obstruction and shortness of breath), nasal allergy was not despite P’s disclosure in the Health Declaration. 340.Question No 2 Turning to the 2nd question in the Health Declaration (ie whether P had any check-ups and the last was when), P answered in the affirmative and stated under details “五月” but omitted to say what that last check-up was for. In my view, it was strange that P clearly remembered her last check-up was “五月”, but chose to be silent on what it was for. P did not even clarify in her statement/oral evidence the nature of that last check-up. But P knew she attended regular follow-ups with UCH’s DOT for the past 10 years from 2003 to 2013 for her left knee condition as a result of previous left patella dislocations, and she claimed to regard such follow-ups as regular body check-ups (see paragraph 189 above), so she really had no answer under cross-examination as to why she did not disclose her follow-ups at UCH’s DOT under question no 2 or, if “五月” was referable to such follow-up, why she did not disclose it was for monitoring her left knee condition as a result of the 2 previous left patella dislocations. I find on balance that the lack of detail as to what check-up “五月” was for was P’s conscious omission in order to give the impression that it was in relation to nasal allergy (which was the only condition disclosed in the Health Declaration). 341.Question no 11g Turning to question 11g in the Health Declaration (ie whether P had disabling arthritis or chronic injuries), P maintained she was not told after the 2nd Episode she had “recurrent” left patella dislocation (which evidence I have rejected), and she had fully recovered from the 1st/2nd Episodes and her injuries had no further impact on her exercises/sports (which evidence I have also rejected). I have found that after the 2nd Episode the orthopaedists at UCH’s DOT told P she had “recurrent” left patella dislocation, and that she had pre-existing P’s Knee Condition after the 2nd Episode. In my view, P should have disclosed such chronic condition consequent upon the 1st/2nd Episodes in the Health Declaration, but she kept quiet about this. 342.Questions 1, 2 and 11g In my view, by putting forward “nasal allergy” as particulars for question 1 (but omitting reference to hospital treatment for her left patella dislocations and for asthma) and “五月” as particulars for question 2 (but omitting reference to the nature of her check-up), which were the only 2 questions for which she gave affirmative answers, and by putting forward a negative answer to question 11g, P consciously painted a picture in the Health Declaration that she had no chronic injuries/condition and that the only matter necessary or worthy of disclosure was nasal allergy with check-up probably at “五月”. But even on P’s own criteria (bearing in mind I have found nose inhaler medication was for asthma) that she should declare a condition that was stable and did not cause any problem but required follow-up (eg nasal allergy), there was little reason for her not to make parallel declaration about her left knee condition which she likewise claimed to be stable and did not cause any problem but required follow-up. After all, P agreed the information to be given in the Health Declaration (including those under questions 1-2) was information pertinent to the Medical Examination for “police force recruit”, and she knew physical fitness was essential for PI training at the College. Mr Sakhrani submitted P did not have and there was no record she had any knee problem in the period before P’s recruitment as a PI, but I have found otherwise. In my view, P’s Knee Condition was a chronic condition that was symptomatic and that bothered P, so she ought to have declared the same in the Health Declaration. 343.P’s reasons for omission As to why P omitted declaration of hospital treatment for the 1st/2nd Episodes in the Health Declaration, P explained in-chief that (i) she asked Dr Lee whether, if she had previous joint injuries, she had to specify them in the Health Declaration, so (ii) Dr Lee asked her what was her problem and she replied she had previous left knee dislocations, but (iii) when Dr Lee asked her whether she had recovered, she replied “…… [now P has] no problems at all and [P] do continue with playing ball ……”, then Dr Lee said “…… [these] do not affect [P] when [P] are doing exercise now ……” Plainly, even on P’s case, Dr Lee did not tell P not to report her left knee dislocations/problem in the Health Declaration. Upon further cross-examination, P clarified Dr Lee neither asked her to fill in or not to fill in the details about her left knee condition, and she just assumed that Dr Lee who was then holding the Health Declaration in her hand would make notes. I find this improbable since P well knew the Health Declaration was her own declaration which she had to sign to confirm, and which was in contra-distinction to medical notes made by Dr Lee. 344.Then under further cross-examination, P claimed when she filled in the Health Declaration (a) she did not know the time period captured by the words “please give Details” and (b) she could not remember the exact dates/details of the 1st/2nd Episodes, so she asked the clinic nurse who then told her the doctor who would later see her “…… would tell her to what extent [she would] need to put it down ……”, so P claimed “…… [she] need to wait until [she] saw the doctor and then [she] was told …… to what extent [she] need to fill in and what was necessary before [she] filled that in. After [she] had asked the doctor, then [she] would follow what the doctor required [her] to do, to fill in the information clearly …… Well, [she] will write whatever -- to the extent that [she] was required by the doctor ……” The completed Health Declaration was collected, and when P next saw it, it was already in Dr Lee’s hands. But, as seen in the above paragraph, P eventually conceded Dr Lee neither asked her to fill in or not to fill in the details about her left knee condition. 345.When pressed on why, on her own case, she did not simply declare the 1st/2nd Episodes for which she received treatment at UCH and state she had forgotten when those incidents occurred, which would have facilitated Dr Lee upon reading the Health Declaration to see if clarification was required (as provided in the last box of the form – see paragraph 332 above), P really had no answer except to reiterate her above evidence and go on to blame the clinic nurse that “…… had she not answered [P] in this way, then [P] would have written that down, as [P] had never intend to cover up ……” 346.I find on balance P knew it was for her and not for Dr Lee nor the clinic nurse to decide what to state in the Health Declaration, which was essentially her own declaration about her past health condition for which she had to take responsibility and in respect of which neither Dr Lee nor the nurse had information. Dr Lee was the medical examiner and it was not for her to give advice. Mr Sakhrani submitted P’s explanation that she had wanted to clarify with Dr Lee first was consistent with Dr Lee signing at the bottom of the Health Declaration to confirm she had checked the declaration and there were no further points requiring clarification. I am unconvinced by such alleged correlation. What Dr Lee declared was that having reviewed the contents of the Health Declaration as filled in by P she did not see there was anything that would give rise to need for clarification. It was unsurprising Dr Lee signed to give such confirmation given the minimal information P gave in the Health Declaration. 347.Despite P’s denial, I find on balance P consciously kept silent about her ongoing P’s Knee Condition of which she was aware, hoping to maximise her chance of being recruited as a PI. She would have known from the bottom box of the Health Declaration that the medical examiner was required to seek clarification on health matters disclosed in the Health Declaration (if required), and she hoped there would be less clarification and/or investigation if the least was disclosed, especially when she well knew P’s Knee Condition was symptomatic and bothered her as explained above and when such condition had likely to be pertinent to physical fitness for PI training that she already knew would be tough. In my view, P’s approach to the Health Declaration was quite consistent with P’s Personality, and as I have found, she was not above dissembling and blaming others to excuse herself when pressed. 348.Mr Sakhrani submitted D had not established any basis that P knew she had a better chance of getting into HKPF by omitting information, and there was no evidence nor did D’s witnesses suggest that P would not have been admitted to the College even if she had an old knee injury. But I have found P’s Knee Condition was more poorly (with consequent sub-optimal functional concerns) than P would have let this court believe, and P knew as she was symptomatic, not pain-free, had patella instability and was medically advised by UCH’s DOT about higher chance of dislocation (even if she might not have known about her bony structural defects). The question was not whether P had objective information that she had a better chance to be recruited, or whether objectively she would not be recruited when she had previous knee injury. Rather, it was P’s subjective concern, given her awareness of P’s Knee Condition, that she would not risk letting it stand in her way of becoming a PI. In my view, P was concerned that disclosure of P’s Knee Condition might lead Dr Lee to seek clarifications and to look more closely into her underlying condition, hence she only mentioned limited and innocuous health matters in the Health Declaration. 349.Heart condition According to the Medical Examination report dated 2 September 2013, Dr Lee noted under “special remarks/ recommendations” that “Abnormal ECG. Referral to see cardiologists (1) Dr Victor Goh, (2) Dr Chen Wai Chee [“Dr Chen”]– certified by both cardiologists to be fit but need yearly cardiology follow up (*see attached reports)” (F/727). This was borne out by the medical report dated 29 August 2013 by The Heart Clinic Central’s Dr Chen (who carried out a cardiac assessment on P at his clinic on 28 August 2013) (“Chen Report”, C/306-307):
350.Although P claimed she all along had no problem with her heart (ie her heart condition had no effect on her at all), and the Chen Report was comforting in that P’s incomplete right bundle branch block was relatively benign (ie such condition would not stand in her way for being employed as a PI and to undergo PI training), Dr Lee in her Medical Examination report cautiously required yearly cardiology follow-up (F/727). This meant that if and when P was recruited as a PI, this would be a matter to raise with P so that a tab could be kept on her yearly status. In my view, this led to eventual instructions for Kwan to have a word with P (then enrolled at the College) about her heart condition and to render a report (see Part IX(c) below). (d) Physical Fitness Test 351.Invitation for Physical Fitness Test By a letter dated 23 August 2013, HKPF invited P to attend the Physical Fitness Test at the College on 11 September 2013 (F/720-721), and informed P inter alia that (a) she would be required to take 6 individual tests so as to assess the level of her physical fitness, (b) the test would reflect her physical fitness as well as her attitude and determination in preparing for such challenge, (c) she should exert maximum effort as her attitude during the test would also be assessed, and (d) she was required to sign an agreement to exempt the Hong Kong government from all liabilities arising from her attending the test. 352.Relevant forms for Physical Fitness Test On 11 September 2013, prior to taking the Physical Fitness Test, P (a) signed an “Exemption of Liability – Self-Declaration” form (G/725) (“Exemption”), and (b) filled out and signed a ““是否適宜運動” – 問卷” form (questionnaire on suitability for exercise, G/722-723) (“Questionnaire”). The Questionnaire had to be completed before taking the Physical Fitness Test. 353.Exemption For the Exemption, P confirmed that she agreed to attend the Physical Fitness Test at the College on 11 September 2013, that she had been advised in advance, and that:
354.Questionnaire The Questionnaire was as follows:
As seen above, P gave negative answers to all 7 questions in the Questionnaire, and did not mention the 1st/2nd Episodes and/or P’s Knee Condition. She knew if she gave an affirmative answer to any of the 7 questions, she would have to consult/ask a doctor whether there was any need to change her exercise plan. She then signed to confirm that she had read, understood and answered the Questionnaire, and that she had answered the questions carefully. 355.Ms Chao submitted that P deliberately chose not to disclose the pre-existing P’s Knee Condition in the Questionnaire when the 1st/2nd Episodes that occurred when she was playing handball and when she was running fell within question 5 of the Questionnaire. Mr Sakhrani disagreed. 356.From the preamble of the Questionnaire, it was clear that the purpose of such Questionnaire was not to ascertain whether P could or could not exercise, but to ascertain the considerations that would affect P if she were to increase her then current level of exercises (增加現時的運動量). When P was cross-examined as to whether she consulted her doctors about this, she claimed she did and went on to say it was documented in UCH’s MNR that she had told them she was about to enter the College. But she had not disclosed any pre-Accident MNR in relation to her follow-ups with UCH’s DOT to support her allegation. 357.For question 5 of the Questionnaire, which focused on whether P had ever (曾否) felt bone or joint problem worsen due to change of mode of exercise, P explained under cross-examination she gave a negative answer (and did not mention the 1st/2nd Episodes and her pre-existing left knee condition) based on her then judgment that (a) her condition did not worsen or deteriorate and (b) she had no need for change of exercise plan because (i) all along she had no problem and (ii) the orthopaedists at UCH’s DOT previously told her she could do any type of exercise. 358.On balance, I do not accept P’s evidence, which did not sit with my findings in relation to P’s Knee Condition. I have also found that after the 2nd Episode P opted for conservative treatment and she was medically advised by UCH’s DOT that she had recurrent left patella dislocation, that she had higher chance of patella dislocation in future, and that she should avoid team sports that involved high physical demand on the knees with twisting motions and/or quick-pivoting manoeuvres. I have further found that notwithstanding such medical advice she did play some handball and basketball after the 2nd Episode albeit not at a high level, and such sports activities coupled with the biometrics of her bony defects and soft tissue problems led to chronic patella instability (evidenced by on-and-off pain, muscle wasting, patella apprehension sign and J sign) and patella instability events (eg subluxations). In my view, it was plain that P (irrespective whether she knew about her bony defects) should have answered question 5 in the affirmative. 359.For question 7 of the Questionnaire, which placed emphasis on “any other …… reasons” P should not exercise, P explained under cross-examination that she gave a negative answer because (a) the orthopaedists at UCH’s DOT who followed-up on her left knee condition told her she could do any exercise, and (b) the orthopaedists at TKOH’s DOT who followed-up on her right shoulder and right hip condition told her the time to time stiffness and pain would not affect her doing exercises. P stressed that until the Accident she only had stiffness and pain, which (i) happened from time to time but quite seldom, (ii) did not affect her when she exercised, and (iii) did not cause her any problem in her daily life or at all. 360.In respect of (a) above, I have rejected P’s such evidence and found the orthopaedists at UCH’s DOT had told her after the 2nd Episode she had recurrent left patella dislocation, she had higher chance of patella dislocation in future, she should avoid team sports that involved high physical demand on the knees with twisting motions and/or quick- pivoting manoeuvres, and she had to have regular follow-ups (which UCH’s DOT scheduled and P attended) to monitor her left knee condition. 361.In respect of (b) above, P claimed she had told the doctor at TKOH’s AED who treated her for the slip and fall incident in August 2013 she hoped to become enrolled at the College in which case she had to participate in demanding exercises, and she was assured that “[she] did not have any problem”, that the discomfort, pain and stiffness had “nothing to do with joint problem”, and that “there is no problem with [her] bone” (see paragraph 322 above). I have found P’s such alleged conversation unreliable (see paragraph 323 above). I further find it was tailored to bolster her negative answer to question 7 of the Questionnaire. 362.I find on balance that P should have disclosed P’s Knee Condition. She knew the Physical Fitness Test would involve physically strenuous exercises (see paragraph 353 above), and she expected physical training at the College would also involve the same or probably even increased level (given the Course was for 36 weeks and P claimed to have trained in preparation for such physical training – see paragraphs 327-329 above). The Questionnaire stated “如果你的答案是一個或以上的「有」, 在增加運動量或接受體能評核前, 致電或親自請教醫生, 告訴他你在本問卷內那幾個答案是「有」” (my emphasis). I have found P did not direct enquiries to the doctor at TKOH’s AED in August 2013 (see paragraph 323 above), and I find on balance that P did not consult any doctor (and more pertinently any orthopaedist) about the effect of P’s Knee Condition on taking the Physical Fitness Test and/or increasing her exercise level prior to filling out or signing the Questionnaire, and that she had no intention to do so. Despite P’s denial under cross-examination, I find on balance she gave the negative answers in the Questionnaire (and did not disclose her left patella dislocations and P’s Knee Condition) because (a) she wished to soldier on with the Physical Fitness Test without any risk of disruption, which risk she feared might materialise if she were to disclose P’s Knee Condition and to enquire with the orthopaedist at UCH’s DOT whose advice/opinion she could not be certain, and (b) P was concerned that disclosure of P’s Knee Condition might cause HKPF to look more closely into her physical condition/fitness. In short, P was silent because she feared disclosure of P’s Knee Condition might affect her chance of being accepted for PI training at the College. 363.Physical Fitness Test There was no dispute P passed the Physical Fitness Test taken on 11 September 2013. Although the P 1st WStmt referred to information about a physical fitness test downloaded from HKPF’s website on 7 August 2018 as set out below (F/713-717), P claimed the Physical Fitness Test she took in 2013 was stricter (as the 2018 physical fitness test only had 4 tests with the handgrip test included in the 2018 but not 2013 Physical Fitness Test) but she nevertheless passed the same:
P’s Physical Fitness Test results signed off by the examiner and “SIP PT&FA” on 11 September 2013 were classified as “fair”, and showed slightly different descriptions and standards (F/724 and F/726):
364.From the above results, it was plain that although P passed the overall Physical Fitness Test, she failed the shuttle run test (exceeding the standard by 0.3 second, which Dr Lam said was only marginally below the standard) and the squat-thrust test (4 squat-thrusts less than the standard). For some items (eg sit-up test), P scored well above the standard, and for other items (eg 800m run test) she passed but scored very close to the standard. P agreed under cross-examination the Physical Fitness Test results showed her physical condition was not that of a good sportsman, but claimed she was only required to pass the overall test to be accepted without need to excel in each individual test. Whilst that might be so, I find the results of the Physical Fitness Test (a) reflected the pre-existing P’s Knee Condition, and (b) foretold P’s limitation in coping with physical training after enrolment at the College, which training was no longer a one-off test but regular daily physical training. 365.I turn now to the individual tests of the Physical Fitness Test. Mr Sakhrani submitted that the reality was these various tests and the results did not suggest P’s knees were particularly or susceptibly weak, and it was not appropriate to pick and choose or single out one test in which P did not score well when she passed the overall Physical Fitness Test. In my view, P’s left knee condition as reflected by the individual tests of the Physical Fitness Test was more nuanced. 366.For the squad-thrust (立臥撐), it involved bending of knees to drop into squat position, falling forward to place hands on the floor, throwing the feet back and falling forward into a push-up or plank position, then pulling the feet forward into a squat position with hands and feet on the floor, and then jumping up. P agreed this test/exercise (which involved squatting and overall coordination) required bilateral knee strength, but claimed its demand on her knees was no different from those of the other individual tests. Nevertheless, P eventually conceded chinning and sit-up would require less knee strength. 367.Both Ortho Experts agreed that out of the 6 individual tests the squat-thrust test demanded the greatest range of knee movement. Dr Lam agreed under cross-examination that a squat-thrust put the knee through the widest range of knee flexion, and P had to provide knee extension/flexion torque to change from squat (knees flexed) to plank/ push-up (knees extended) and then back to squat (knees flexed) before jumping up, which he regarded as “pretty tough”. Likewise, Dr Wong opined the squat-thrust used the knees as the main torque fulcrum for full range of movement from full flexion (squat) to full extension (plank/ pull-up) and vice versa before jumping up. But notwithstanding the aforesaid consensus, the Ortho Experts disagreed over the usefulness of the squat-thrust test to assess P’s knee condition. 368.Dr Lam suggested squat-thrust was not the best individual test to assess the status of the knees because (a) it was “a kind of complicated action” that required combination of upper limbs, back and lower limbs power, (b) it was not “normal activity”, and (c) it also required “…… the pushing up and the getting up ……” such that it “…… involve the other things as well ……” besides demanding knee power, “…… so we cannot tell whether it’s the other things that have impaired the performance, especially if [P] performed so well in jumping ……” and not just “…… the previous history of knee problem ……” On the other hand, Dr Wong opined that squat-thrust involved the knees a lot (ie it involved full range of knee extension/flexion), so P should have difficulty in performing squat-thrust given P’s Knee Condition. Dr Wong explained under cross-examination that (i) although the upper limbs were utilised for support at the beginning before the plank/pull-up position, it all depended on the knee to initiate action and to act as the fulcrum centre of rotation, and (ii) for the plank/push-up position and later movements, the upper limbs would shift power to the whole body using knees as torque fulcrum, so the squat-thrust test (as compared to other individual tests) had higher physical demand on the knees. 369.Turning to the vertical jump test (ie jumping to certain height and then landing back on feet), Dr Lam explained that jumping would put 20 times body weight on the kneecap, but P did well in such test as she was able to jump up to 17 inches which exceeded the standard of 14 inches for women and almost reached the benchmark of 18 inches for men (see paragraph 363 above). Dr Lam doubted whether there was significant muscle wasting as P could achieve such good result in vertical jump. On the other hand, Dr Wong fairly agreed jumping would put 20 times body weight pressure upon landing, but explained it would not involve whole range of knee flexion, and most of the force on landing was borne by the meniscus, the femur, the tibia and other support mechanisms rather than the knees, ie (a) the knees would be flexed to 50° or 60° (but not fully flexed) for jumping up, (b) after jumping up the knee would be nearly fully extended, and (c) the femur and tibia would flex the knee slightly (not fully) to come down “…… to touch the ground and slightly back again a little bit to shift the force onto the leg ……”, so the vertical jump would not affect the knees as much as the squat-thrust. Dr Wong fairly said he could not grade whether or not jumping up to 17 inches was a good result as he seldom performed vertical jump himself. 370.Turning to the shuttle run and 800m run tests, Dr Lam opined they were more indicative of P’s knee condition because the former required knee strength and the latter relied on lower limb function as well as “…… the strength of a number of things ……” For the 800m run test, Dr Lam said under cross-examination that P’s time of 4 minutes 9 seconds translated to a speed of 11-12/kph, which was fairly good and fast for a woman. For the shuttle run test, Dr Lam noted P was very marginally below the standard by 0.3 second. On the other hand, Dr Wong (who could run 1km in 5 minutes and 10 seconds) opined that 4 minutes 9 seconds for the 800m run test was not a fast speed for a 22-year-old woman. He further reminded that knee flexion for running was 0°-30° and not full flexion range, so squat-thrust had higher physical demand on the knees than 800m run. 371.I start by noting P did not dispute the results of the Physical Fitness Test in paragraph 363 above, and she failed the squat-thrust test. Even though P disagreed she failed the squat-thrust test because her left knee was weak, the number of squat-thrusts she was able to perform was ⅓ less than the standard, which in my view could not be said to be a small margin. I disagree with Dr Lam’s opinion under cross-examination that the squat-thrust test results “…… actually is not consistent with the findings with …… the shuttle running and running which at least she passed in one and …… very marginally failed in one ……” 372.I further disagree with Dr Lam’s suggestion that after good rehabilitation following the patellar dislocations in 2003/2006, such dislocations would not have much effect on P for the squat-thrust test “…… because still it’s a straight line kind of stress ……”, and that P’s overall test results (which Dr Lam considered to be rather good for a woman) strengthened and cemented his opinion on P’s functionality. In light of my findings as to P’s Knee Condition, I am not satisfied P had good rehabilitation and/or good functionality after the 2nd Episode, but rather she had symptomatic and unstable left knee with on-and-off knee pain before the Accident. 373.The squat-thrust put the knees through the widest range of extension/flexion (see paragraph 367 above). On balance, I accept Dr Wong’s opinion that although the squat-thrust required some upper limbs support for certain postures, the knees played a key role as fulcrum to provide torque for change of postures in the squat-thrust with the knees going through full range of flexion/extension. I find P’s sub-optimal performance of the squat-thrust test was mainly due to the chronic P’s Knee Condition after the 1st/2nd Episodes with bony defects, on-and-off left knee pain, muscle wasting and patella instability, especially when quadriceps/VMO wasting or reduction would weaken knee extension torque (see paragraph 295 above), and lax medial support (evidenced by patella apprehension sign and J sign) would cause patella instability on knee flexion (see paragraphs 311-312 above). On balance, I disagree with Dr Lam’s view that quadriceps wasting before the Accident was unlikely because P probably passed some physical tests before enrolment at the College (see paragraph 369 above). Rather, I find on balance pre-existing quadriceps/VMO wasting contributed to and well explained her failure to pass the squat-thrust test. In my view, the above matters would explain the “inconsistent” result for the squat-thrust test as compared with the other individual tests with less physical demand on knee flexion. As for the shuttle run test, the 800m run test and the vertical jump test, I also prefer Dr Wong’s opinion for the reasons he gave, which I find to be well- rationalised and reliable, and which explained why, despite P’s self-training in the period leading up to the recruitment procedures (but at less intensive level than P suggested – see paragraphs 327-329 above) and before P suffered tiredness/fatigue from academic studies and physical training during PI training (see Part X(d) below), P still failed the squat-thrust test during the Physical Fitness Test. In my view, the pre-existing P’s Knee Condition contributed to such result, and it was echoed by subsequent PI training as P received modified and additional/ extra physical training and did not participate in some physical training tests (see Part XII(b) below). VII. JOINING THE COLLEGE (a) Enrolment at College 374.After passing the Medical Examination and the Physical Fitness Test, P was formally employed as a PI. P joined HKPF as a PI on 7 October 2013, and her PI foundation training commenced on the same day. According to the P 1st WStmt, it had always been P’s dream to be a police officer serving Hong Kong citizens, and she knew there would be progressive increase in salary (according to the police pay scale) and welfare benefits in a career with HKPF, so when she received the Letter of Appointment (see paragraph below) she believed she would have a bright future with HKPF.[88] 375.According to HKPF’s letter of appointment dated 25 September 2013 (F/736-738, “Letter of Appointment”), P was employed by HKPF as a PI as from 7 October 2013 with monthly salary then calculated according to police pay scale point 25. The Letter of Appointment also provided as follows:
376.P agreed under cross-examination that she knew from reading the Letter of Appointment she was required to pass the passing out examinations, and there was no automatic passing out after completion of the 36 weeks’ Course. But even though the Letter of Appointment reserved the government’s right/discretion to decide whether or not to offer employment as an IP, P’s own understanding of government jobs and her understanding from previous attendees of the College were that she could expect to be offered employment as an IP upon successful passing out and meeting all requirements for becoming an IP. Kwan echoed this by saying under cross-examination that upon finishing PI training, meeting the requirements and passing out, the normal expectation was that PIs would be employed by HKPF to start their career as IPs, and he did “…… not agree that the police will not continue to employ them …… as [IPs] ……”. Also, the Chan WStmt stated P was a PI when she was employed by HKPF in 2013, and if she completed the Course and passed the professional examinations, she would become an IP. I find on balance that notwithstanding the reservation of contractual discretion in favour of HKPF in the Letter of Appointment (see above paragraph), normally (and it was the practical common expectation) PIs would be taken up by HKPF as IPs upon passing out (see also paragraphs 935-936 below). 377.But in reality not all PIs in each squad would pass out. According to the Chan WStmt, due to physical injuries, failure of written examinations and/or some other personal reasons, it was common that PIs might fall back squad and delay passing out (ie Re-training), and it was not uncommon that some PIs would resign before completion of PI training due to health/personal reasons. “These were [Chan’s] observations while [he] was working in the [PI] training unit” (ie RTDiv of the College), and he explained under cross-examination that he joined RTDiv of the College as a PI instructor in November 2017 when he was still a CIP, and he stayed on with RTDiv after his promotion to the rank of SP in May 2019 until he left the College in May 2020. Chan added that although he had not read documents concerning the period before he served at the College, “…… [he] communicated with [his] colleagues, especially when [he] joined the [PI] training unit [ie RTDiv]. That’s the …… understanding [he] got ……” 378.According to the Chan WStmt, the outcome for PIs of the 2013 intake that took on strength on 7 October 2013 (ie PI566-568) and their career advancement as compared to other PI squads in same intake year in 2013 was set out below, which showed that for the take on strength in 2013 alone, it was not uncommon for PIs to resign during PI training and/or for PIs to fail to pass out (indeed only 35 out of 45 new recruits for PI566-568 passed out):
(b) Kwan, Chau and Tan 379.Kwan agreed under cross-examination that most PIs were in their early 20s (the youngest being university fresh graduates even though a squad intake might have PIs of various ages),[90] and for some (a) it would be their dream to work as a police officer and/or to become an IP, and (b) PI training at the College might be the first time they lived away from home. 380.Chau was the CI and Kwan was the assistant CI of the 2013 intake of PI566. Both of them were involved in PI training, and were close to the PIs. Although Chau belonged to RTDiv and Kwan belonged to BCTDiv (whose supervisor was the CIP of the drill and musketry unit), the working relationship between Chau and Kwan was that of quasi- supervisor and subordinate vis-a-vis PI training. Chau could give directions to Kwan, and Kwan would assist Chau in relation to PI training. 381.Chau as the CI had an overall role in relation to the Course. He was the instructor in legislation training and leadership training, and was the class teacher for some other classes. PIs also received training in other areas, eg musketry, first aid, etc, and Kwan handled certain training areas such as foot drill training. Kwan and Chau also looked after PIs’ welfare, and Kwan claimed (as seen in the evidence discussed below) he had taken regular overview of P’s situation. As Chau explained, “……. [Kwan] will do more on the area of welfare and foot drill ……” 382.Chau and Kwan had worked together to teach a previous intake squad before the 2013 intake, and they had a good working relationship as CI and assistant CI. According to Kwan, he started working as drill and musketry instructor in 2012, and taught another PI squad of the 2012 intake (but he could not remember the exact date of intake[91]). 383.According to the Chau 2nd WStmt, Chau and Kwan worked closely on the training of PI566. According to the Kwan 2nd WStmt, the division of labour between Kwan and the CI was not always clear because they worked as a team throughout the Course, and whether the CI or Kwan would be responsible for handling matters concerning PIs would depend on the circumstances of each matter. According to the Chau 2nd WStmt, it was Chau’s/Kwan’s practice that Kwan would communicate with the PIs directly regarding matters arising out of their daily needs and miscellaneous matters (ie matters that were not directly related to the major training areas), and Kwan would then report to Chau. From time to time Chau would also receive instant messages, emails and/or phone calls etc directly from PIs, which Chau would usually acknowledge and then tell such PIs to report to Kwan so Kwan could handle the matters directly. Likewise, Kwan explained under cross- examination that major training areas of PI training covered many areas, but he would follow-up and deal with matters not falling within such major training areas. He agreed he was Chau’s eyes and ears for matters outside the major training areas. Kwan also took up the administrative aspects of PI Training. He said it would be for others to say whether he was a meticulous person, but felt he tried his best in doing things and considered himself efficient. 384.According to the Chau and Kwan 2nd WStmts, it was the practice/consensus between Chau and Kwan that no matter which of them was to handle matters concerning PIs, both of them would be equally informed of the details and would be prepared to follow-up on the matters, eg in the event of sickness or emergency concerning any PI, normally and where practicable the relevant PI would inform the squad prefect (班長) who would report to Kwan (as he was primarily in charge of administrative work and PIs’ welfare), and then depending on the circumstances the matter would be reported to Chau by the PI or via Kwan as soon as possible, so both Chau and Kwan would be updated and would discuss/determine how to handle the matter. According to the Kwan 2nd WStmt, the squad prefect played an important role in communications between instructors and PIs, and Kwan would talk to the squad prefect every duty day to ensure PIs were in good shape. 385.In his experience as drill and musketry instructor, Kwan had encountered PIs who suffered different kinds of injury during PI training and/or PIs whose performance might not be up to the requisite standard, and he would support the injured PIs on their road to recovery and/or encourage the PIs who were not performing so well to improve. He would speak to such PIs from time to time to update on their progress and recovery, to ensure they had sufficient rest (if they sustained injury) before embarking on PI training again, and subject to their health and physical condition, arrange extra/remedial training for catching up with ongoing PI training requirements. 386.But the Chau and Kwan 2nd WStmts emphasised HKPF was a disciplinary force, and PIs were expected to understand the work of an IP was tough and stressful, so Chau and Kwan were always strict with PIs in the course of PI training so as to ensure IPs-to-be were equipped with ability to withstand pressure in carrying out their future duties. Nevertheless, according to the Chau 2nd WStmt, Chau said he would deal with all PIs fairly and equally with no differential treatment, and he never did anything to insult/embarrass or had any ill-will to cause insult/ embarrassment to any PI, and he was also certain Kwan adopted similar approach to PIs under PI training. 387.Likewise, Kwan agreed that as instructor in foot drill training he would speak loudly to give orders/instructions during class, but there was no need for him to use loud voice to correct a PI as a deterrence measure on other PIs in the squad, or to speak loudly in his ordinary daily interactions with PIs (and in fact he said he would communicate in a normal rather than loud/strong/firm tone). It was suggested that after the Accident Kwan scolded P in 2 WhatsApp messages to her at 5:20pm on 20 December 2013 and at 9:42am on 21 December 2013. These WhatsApp messages are discussed in paragraphs 487 and 506 below, but suffice to state here that I disagree Kwan was targeting and/or scolding P by such WhatsApp messages. 388.According to Chau, his superior Tan (with whom he had close communications) was responsible for all matters relating to PC trainees and PIs, including intakes, training, injuries during training etc. Chau said that at the College there were 3-4 CIs who would run their own classes and who would update Tan on their classes on weekly basis. But Chau would inform Tan immediately if something important or urgent cropped up. On the other hand, Kwan said Tan as SP was 3 ranks above him, so they had little interaction except he would greet Tan when they came across each other at the College. VIII. COURSE AT COLLEGE 389.According to the Chan WStmt, the intensive PI training Course would last 36 weeks, and consisted of (a) academic studies on law and police procedures, (b) physical training, (c) leadership development and practical exercises, (d) weapon training, (e) tactics training, and (f) foot drill training.[92] The aim of the Course was to equip PIs with necessary professional knowledge, discipline, skills and attitude to effectively/efficiently discharge statutory duties and responsibilities of IPs of the uniform branch for the 1st 3 years of their police service. According to the Chan WStmt, PIs were required to pass written examinations on (a) above,[93] particularly the professional Standard I Written Examination, and to pass tests on practical exercises on (b)-(d) above before they could pass out. IX. KNOWLEDGE OF P’s PRE-EXISTING CONDITIONS (a) P’s case 390.In the P 2nd WStmt, P agreed she did tell Kwan she had previously injured her left knee in 2003 and 2006, but claimed (a) she never told Kwan her knee might be easily injured again and/or (b) Kwan did not tell her to be careful during training or she should stop undergoing training if her knee felt unwell or if she felt she could not take the training. P also claimed no one (including Kwan) ever explained to her what medical welfare benefits and administrative arrangements the College would have for her if she sustained injury during PI training, and she disagreed she knew she could postpone her PI training if she could not complete the Course by reason of medical condition (ie Postponement). 391.When asked during cross-examination why, on her own case, she felt the need to tell Kwan about her previous knee injuries when (a) she claimed her left knee condition had no impact and did not restrict her exercises/sports, (b) she did not disclose her left knee injuries in the Health Declaration (even after talking to Dr Lee) and in the Questionnaire, and (c) she had already passed the Medical Examination and Physical Fitness Test (which she said was the relevant consideration), P claimed that shortly after commencing PI training, Kwan saw her and her squad mates running, and he took her aside to ask whether she had any health problems and to tell her to disclose all her previous health problems. P did not know why he so asked, and thought “perhaps he had read through all [her] files, and then perhaps he felt that when [she] was running, [her] speed was not as fast as other classmates”. P replied she had no problem at all, including her heart and her knee, and she had recovered from her knee condition. He then asked her whether she had any report to prove she had no problem, and she replied she had a report on her heart condition. She was later asked to go home to bring the report to show him.[94] 392.From P’s account, it appeared that Kwan suddenly raised the subject of her previous health problem because inter alia he saw her running slower than her squad mates. But if this was the triggering factor for Kwan’s enquiry, one would have expected him to ask her why she was running so slowly (as it could be due to a variety of reasons, including eg fatigue from a late night, sprain from recent exercises, catching a cold that affected her respiratory system, and not necessarily “previous health problems”). When pressed on this, P then said “…… [well], probably [Kwan] asked two questions at the same time: “Why were you running so slowly? Is it the case that you have health problem?” ……” 393.On balance, I reject P’s account of how she came to tell Kwan her left knee condition:
(b) Left knee condition 394.According to the Kwan 2nd WStmt, Kwan recalled that shortly after commencement of PI training (which Kwan said under cross-examination was probably in the 1st or 2nd week of PI training), P told him about her previous knee injuries before she joined HKPF, saying her knee might be easily injured again. Under cross-examination, Kwan initially said this was mentioned at about the time he discussed with P about her heart condition, but he later said it was before that. Kwan went on to testify that he was worried P might be injured, so he told her to be careful with the exercises, and to stop if her knee did not feel well or if she felt she could not take the training. 395.Much was made of the “inconsistency” as to when P told Kwan about her left knee condition, and Mr Sakhrani suggested it was because (a) P never told Kwan her left knee could be easily injured again, and (b) Kwan tried to separate the 2 conversations to justify he made a record concerning the heart condition but not the left knee condition. I disagree. In fact, it would have been much easier for Kwan to debunk P’s assertions if he maintained he and P had the 2 conversations together. After all, it would have been pointless for her to ask P to bring him the Chen Report (as P suggested) when (as evident from his written report dated 22 October 2013 as to P’s heart condition in paragraph 406 below) he had with him information about her heart condition and Dr Chen’s views. Upon careful consideration, I see nothing sinister in the alleged “inconsistency”, and find on balance it was P who took the initiative to disclose to Kwan about her left knee condition in the manner set out in the above paragraph, so there was no particular triggering factor to help Kwan recollect precisely when the conversation took place. Such slight discrepancy over timing did not undermine Kwan’s veracity (especially when both P and Kwan agreed this matter was raised at the beginning of PI training). For reasons discussed below, I also find on balance P told Kwan her left knee could be easily injured again. I will discuss (b) above in Part IX(d) below, but suffice to state here there was special need for Kwan to record/report the conversation with P on her heart condition, which did not apply to P’s Knee Condition. 396.Mr Sakhrani submitted that D had not explained why if P had been hiding information in the Health Declaration and in the Questionnaire (as D suggested), she would unilaterally offer to Kwan information that her knee might be easily injured again at the beginning of PI training, which would have affected her chances of passing out. In my view, D’s witnesses could hardly have given evidence as to P’s subjective considerations. But on the totality of the evidence, P’s decision to speak up and inform Kwan of her left knee condition was not hard to understand:
397.Kwan explained under cross-examination that when he learned it was easy for P’s left knee to be injured again, he also mentioned to P the arrangements the College had for possible Postponement or Re-training if injury actually took place.[95] Kwan then orally informed the CI (ie Chau) it would be easy for P to injure her knee again and the advice he had given her. Kwan also “…… remember that [he] also informed other instructors as well” about her knee condition. He told the other instructors P was not required to do strenuous exercises that involved her leg, and she could/should stop if she found she could not cope/manage her exercises or did not feel well. Mr Sakhrani raised a number of points to dispute Kwan’s testimony. 398.Mr Sakhrani challenged Kwan’s credibility by saying although he gave evidence under cross-examination to have modified P’s training regime as a result of P’s disclosure of her left knee condition, this was not canvassed in his statement evidence. Mr Sakhrani submitted “there was no independent record pointing to Kwan having made such adjustments – he simply gave his own evidence about selective tests” (see discussion on PT Record in Part XII(b)-(c) below), but by the time Kwan gave evidence on these matters it was too late for P (who had already completed her evidence) to rebut such allegation. 399.I disagree. As I find in Part X(b) below, P did receive modified training as mentioned in the Lee 2nd Stmt, which document P had access through the discovery procedure long before the trial. I also note P’s modified training came up during her cross-examination, which was why leave was granted for Kwan to respond to P’s evidence in his evidence-in-chief. I am not persuaded this was sufficient to impugn Kwan’s veracity on the matter of modified training, which subject will be discussed in Part X(b) below. Suffice to state here that if, as P claimed, there was no problem with her left knee and she could exercise without restriction, there would have been no reason for her physical training instructor (who was not Kwan) to have arranged modified training for her. I find on balance that after P told Kwan about her left knee condition (including her claim that her knee could be easily injured again), he passed on the information to the physical training instructor who modified P’s physical training regime to accommodate P’s Knee Condition. 400.Mr Sakhrani next complained that Kwan’s evidence that he mentioned to P about Postponement or Re-training if injury actually took place was not canvassed in Kwan’s statement evidence. It was said that if P had been told of such reasonable options before the Accident, there was no reason why this was not to be mentioned in Kwan’s statement evidence, or why this did not resurface in the WhatsApp messages between P and Kwan after the Accident (particularly when P wished to retrieve her study materials) to remind P she should take up Kwan’s earlier advice. Mr Sakhrani submitted one would have expected such options to be recorded similar or in line with the spirit of paragraph 47 of HQO12/11 that “[proper] records must be kept of the nature of accommodation or [Managed Posting Arrangement], which has been provided to a [Health Impaired Officer] ……” (my emphasis). 401.I find on balance Kwan’s statement evidence did refer to P having been briefed about possible administrative arrangements that might be available if she were to suffer injury. Paragraph 8 of the Kwan 2nd WStmt stated that “…… [P] must have been briefed more than once of her medical benefits and the administrative arrangements of the [College] if a PI sustained injury in the course of the training ……” Kwan explained the “medical benefits and the administrative arrangements of the College” if a PI sustained injury during PI training would include (a) receiving medical treatment as soon as possible, (b) depending on the needs of the injured PI, receiving follow-up treatment, taking sick leave and/or arranging light duties pursuant to MCs issued by medical doctors, (c) adjusting training arrangements upon taking into consideration the seriousness of the injury and progress of recovery from the injury, and (d) if necessary, Postponement until or Re-training upon recovery. It was suggested to Kwan that paragraph 8 of the Kwan 2nd WStmt meant a third person and not Kwan who told P, but Kwan explained that he himself told P and he believed the CI would also have told her, so paragraph 8 of the Kwan 2nd WStmt embraced the CI and himself. I find Kwan’s explanation credible. Having found that P did tell Kwan about her left knee condition and that it could be easily injured again, it would be surprising indeed if Kwan stayed silent about the standard measures available at the College for dealing with PIs suffering injury during the Course. It must be remembered the conversation between P and Kwan took place at the beginning of the Course, and there was no reason then for Kwan to target P or to hide any standard measures from her. Indeed, Kwan’s advice was quite in line with his subsequent conduct to inform Chau and other instructors which eventually led to modified physical training for P. 402.As for Mr Sakhrani’s query as to why Kwan’s advice did not resurface in the WhatsApp messages between P and Kwan, Kwan said under cross-examination he did mention the medical benefits and the administrative arrangements (including Postponement and Re-training) to P more than once, ie he mentioned this again in a telephone conversation after the Accident when P sent WhatsApp messages to him and he replied asking her to call him (see paragraph 494 below). In my view, this quite explained why it was not in WhatsApp messages. 403.As for Mr Sakhrani’s complaint that the options for Postponement or Re-training had to be recorded in writing similar to or in line with the spirit of HQO12/11, I will discuss the effect of HQO12/11 in Part XXV below. Suffice to state here I am unable to see any need for such written record to be made when there was as yet no injury, and when no Postponement or Re-training “has been provided” to P. All Kwan did was to give a heads up to P about such possible options should she suffer injury during the Course. In any event, for reasons explained in Part XXV below, I am not persuaded that paragraphs 3 and 47 of HQO12/11 required any accommodation that had been provided to P (who was not indexed at a health impaired officer (“HIO”)) to be recorded. 404.Mr Sakhrani also suggested to Kwan during cross- examination that there was no factual cause/basis for him to raise the options of Postponement or Re-training in the 1st or 2nd week of the Course, and it was said Kwan had no reason to raise such matter unless he had good reasons to believe P would not pass out. Kwan explained (and on balance I accept) his intention was to tell P about these possible measures if she sustained injury in the forthcoming PI training because “…… she told [him] that it was very easy for her knee to get injured again”, and he was not telling her to actually suspend training or actually join a new intake. In my view, this also explained why Kwan did not raise these options with P as regards her heart condition, ie incomplete right bundle block, which was a benign condition and medically considered not to affect P’s PI training. 405.In the circumstances and taking into account the discussions below, I reject P’s denial that no one had ever explained to her what accommodation could have been made available by HKPF had she injured herself during PI training. I prefer and accept on balance Kwan’s above account of his conversation with P at the beginning of the Course. In my view, P knew that if she were unable to complete the 36 weeks’ Course because of injury, Postponement or Re-training were possible options. Further, it was quite evident from what P told the Psy Experts that she well knew the possibility for postponing her completion of PI training after suffering injury (see paragraph 476 below), which was consistent with Kwan’s evidence that he told her so more than once before (see paragraphs 397 and 401 above) and after the Accident (see paragraph 402 above and paragraphs 494-496 and 682 below). (c) Heart condition 406.According to the Kwan 2nd WStmt, P had some other health concern, eg abnormality in her ECG. On 22 October 2013, Kwan documented his discussion with P regarding her cardiac abnormality in a police form which he signed (F/732):
407.Under cross-examination, Kwan said he received from the general registry a file relating to P’s heart condition. He had no impression who sent the file, but given the division of labour between him and Chau, it was probably Chau who sent it to him. He was required to report on action he took regarding to P’s heart condition. At that time, Kwan was worried as P appeared to have a heart condition. He reminded P that if she did not feel well, then she must stop training and report to the relevant instructor without any delay as her health condition concerned her heart. The conversation took 15 minutes or less. 408.By the time Kwan gave evidence it had been a long time since he saw the file on P’s heart condition, so he could not remember to whom he made his report. He could not be sure as he worked for RTDiv and BCTDiv (with 2 superiors being CI in relation to PI training and CIP of the drill and musketry unit), but since he worked partly in teaching PIs, he might have reported to the CI (ie Chau) as the matter concerned the heart condition of a PI (ie P). In any event, Kwan believed Chau would also be informed about his report. 409.Mr Sakhrani complained that D never disclosed the file relating to P’s heart condition that Kwan received. But Mr Sakhrani did not cross-examine Kwan on the contents of such file. In the present action, D had disclosed/discovered the Health Declaration, the Medical Examination Report dated 2 September 2013 by Dr Lee with attachments, the Chen Report, the Questionnaire, and the report made by Kwan in paragraph 406 above. Further, Kwan sighted the file relating to P’s heart condition at the beginning of the Course. Other than the health-related documents generated during the recruitment process as referred above, I am unable to see there would have been any further health-related documents. I see no merit in P’s non-disclosure complaint. 410.On balance, I accept Kwan’s evidence in paragraphs 407-408 above. According to the Medical Examination Report dated 2 September 2013 by Dr Lee, HKPF was notified that P had abnormal ECG, that Dr Lee recommended yearly cardiology follow-up despite the benign nature of P’s heart condition, and that Dr Chen certified P’s her fitness for PI training. It was therefore unsurprising that upon recruitment of P as a PI with need to undergo physical training, the College was notified of P’s heart condition. The specific reference to incomplete right bundle block in Kwan’s report in paragraph 406 above (being the diagnosis in the Chen Report) was testament to such notification. Given the role of the CI (who had overall role in relation to PIs in relation to PI training of the Course) and the assistant CI, I find on balance that the file relating to P’s heart condition was formally routed through Chau as the CI with instructions to Kwan as the assistant CI to speak to P about her heart condition and to formally report back on the discussion. It came as no surprise that due to lapse of time Kwan had forgotten from whom and to whom the file was received/given, but he tried his best to be helpful and explained the file was likely to have been from Chau and he probably reported to Chau given the chain of command. For reasons explained in paragraph 404 above, there was nothing sinister in Kwan not advising P about Postponement of Re-training vis-à-vis her heart condition. (d) Written record 411.Much was made of the fact that Kwan recorded his interview with P about her heart condition but there was no similar record for what he said to P about her left knee condition. Mr Sakhrani submitted it was incredible that Kwan would not have documented the conversation about P’s left knee condition as it appeared to have worried/concerned Kwan to the extent that he claimed to have warned her to stop doing training exercise if she felt unwell or could not cope (ie the same advice he gave her in relation to her heart condition). 412.But as Kwan explained under cross-examination (and on balance I accept) he recorded his interview with P about her heart condition because he was formally informed about P’s heart condition via a file relating to such condition, and he was instructed to report to someone (whom he thought to be Chau but was not sure) of action he took vis-à-vis P’s heart condition. Kwan said (and on balance I accept) at that time he was not thinking about whether or not the contents of the interview were important to document for record purpose because, quite simply, he had to render a written report. But as regards P’s previous knee injuries, P told Kwan about them orally and he was not asked to make a report, so he did not make a record. 413.I find and accept there was a difference between the formality of action to be taken in relation to Kwan’s initiative to ask P about her heart condition and the informality of P’s initiative to tell Kwan about her left knee condition. In my view, it would have been onerous and unnecessary to document reminder to P on possible arrangements in case of injury (which had not happened) when Kwan took the practical steps of asking P to take care and stop if she could not cope/manage and alerting Chau / other instructors of P’s Knee Condition. X. PI TRAINING PRIOR TO ACCIDENT (a) PI training 414.According to the P 1st WStmt, in October 2013 P began her 36 weeks’ residential Course at the College. The PI training included physical fitness training that involved (a) vertical jump, (b) 2.4km run, (c) other basic fitness training, (d) musketry training (for which she had to squat/kneel and fire guns), and (e) marching and foot drill training. P agreed physical fitness training was a structured training course with timetable for the various exercises in (a)-(e) above. PI training also included academic training with written tests that involved a large amount of homework. 415.P agreed under cross-examination that the official event that started the duty day was the morning roll call at 6:30am, but she and her fellow PIs got up at about 5:30am every morning to tidy up their rooms before going out for morning roll call and running at the Parade Ground before breakfast. P claimed in-chief that the daily training at the College (which included musketry, foot drill and physical training) was very intensive, and after class PIs had to prepare for the next training, and certain squad mates including P were required to do additional/extra physical training. P said by the time she returned to her residence at WBB for a shower it was already very late. P said PIs generally studied until about 12:00 midnight or 1:00am, but she herself would study until about 2:00am. P agreed under cross-examination that staying up to 2:00am was her personal choice, but blamed it on her additional/extra training. In all, P said she slept less than 3-4 hours a day. The above was P’s then schedule for PI training, which she expected to intensify as the Course progressed, so P found it very tiring and exhausting. (b) Modified training 416.P did not have the impression or could not remember she was given modified training during her PI training. But as seen in paragraph 397 above, Kwan testified (and I have found) he told the other instructors what P told him, ie she had previously suffered knee injuries and her knee could be easily injured again, and he told P she should stop her exercises if she could not cope/manage or did not feel well. Kwan testified (and on balance I accept) that modified training was arranged for P so she was not required to do strenuous exercises that involved her leg, thus (a) she was at times an observer, and (b) “…… in week four [of the Course] we have a hiking training. One of the items was to run up to the top of the hill and …… the slope was very steep. [Kwan] remember that [P] did not take part in it ……” 417.P did not out rightly deny she had modified physical training. She merely said she had no impression. If (as she alleged) she had told Kwan about her previous left knee dislocations and had assured Kwan she had no knee problem thereafter, there would have been no reason for the physical training instructor to provide modified training, and one would have thought she would have been indignant at the suggestion that she was given modified training without request or need. After all, as Kwan and Chau said, the standards for passing out were the same for all PIs, and if P had modified training such that she was excused from certain physical training exercises/tests, this might have impact on her passing out. In my view, it was improbable that she had no impression that she was provided modified training, especially when she remembered she was picked on by Kwan to have additional/extra training. I find on balance P did have modified training but tried to dissemble because having modified training would have been tantamount to acknowledging she had a symptomatic knee problem, which would have gone a long way to support Kwan’s evidence that she had told him her knee could easily get injured again. 418.Lee was a PI who took on strength / started her PI training with PI568 on 7 August 2013. On 3 January 2014 (ie the day P left HKPF), Kwan took the Lee 1st PStmt from Lee about the Accident in the presence of Choy (E/467). Lee passed out and became an IP. On 20 March 2018 (ie after P filed her SoC in the present action), Lee (who had been promoted to the rank of SIP and was then serving at Tuen Mun Police Station) self-prepared the Lee 2nd Stmt (E/477-478) that stated inter alia as follows:
Mr Sakhrani urged me to place no weight to the Lee 2nd PStmt as Lee was not tendered as witness at trial and so was not available for cross- examination. Given my acceptance of Kwan’s evidence on modified training, there was no need for me draw adverse inference on any alleged failure to call Lee as witness. In any event, I see little basis to draw adverse inference from Lee’s information about modified training as (a) I did not accept P had adduced credible evidence on this subject in the first place to invite adverse inference, and (b) I bear in mind Lee volunteered information about modified training on her own when such topic was not even raised by P or D in the present action nor in the Kwan/Chau 1st WStmts. 419.Further, the physical training tests for P in the course of PI training as noted in the PT Record (see paragraph 171 above, F/735) showed P did not participate in some of the individual physical training tests. Mr Sakhrani submitted the PT Record viewed on its own as opposed to other examination results for PI566 (such as the results for the written examination on 18 November 2013 (F/733-734)) did not bear out any training modification or explanation. The PT Record is discussed further in Part XII(b)-(c) below, but suffice to state here that the physical training tests shown in the PT Record were at least consistent with the existence of modified training for P. (c) Additional/extra training 420.P said in-chief that certain squad mates (including P) were required to have additional/extra running exercises or drills. She felt she was picked upon and disagreed such arrangement was for her benefit. In the Psy Jt Report, the Psy Experts recorded P’s account to them about such additional/extra training as follows:
421.P did not think the additional/extra training was to enhance her physical fitness, and denied (a) she knew she was underperforming and/or (b) she victimised herself by thinking she was singled out for additional/extra exercises or training, but all she was able to say was that there was no justification for such additional/extra training as by then all PIs (including P herself) had passed the Physical Fitness Test. But when it was suggested to her that (i) even though she passed the Physical Fitness Test the instructor could surely assign her additional/extra physical training (when, on her own case, she was running more slowly and was physically less fit than most other squad mates, which she thought was why Kwan pulled her aside to ask her whether she had past health problems – see paragraph 391 above) to enhance her fitness to meet the passing out standards and (if she passed out) to become a fit and proper IP, and (ii) the instructor could hardly be picking on her when she was well aware (1) she had to train under pressure so that she could cope with work pressure as an IP in future and (2) another squad mate was also assigned additional/extra training, all P said was she thought she was picked upon “…… because at that time he said, “The two who are tall but useless, come out and run” ……” 422.Under cross-examination, Kwan disagreed he picked on P by (a) using a harsh tone towards her and not to squad mates generally, and/or (b) calling her tall and useless in front of other squad mates. More importantly, Kwan explained it was the physical training instructor (who was not Kwan) who assigned additional/extra physical training for those PIs who were not sufficiently fit “…… on Monday, Wednesday and Friday …… from 5.30 to 6 o’clock. That is half an hour before dinner …… The physical training instructor would give them more training on the parts which they are weak in that guidance class in our sports ground ……” Even though Kwan was not the physical training instructor, he recalled P was one of the PIs who was arranged by the physical training instructor to have additional/extra physical training. 423.I start by noting there was no dispute P had additional/extra training, which Kwan said was for 3 days/week and half an hour on each occasion before dinner. Contrary to what P thought, I have no doubt that such additional/extra training was for P’s benefit and that P was not picked upon to have such additional/extra training:
(d) Not keeping up 424.Despite P’s evidence that she found PI training intensive and tiring with very little time for rest/sleep, and further despite worries that she might fail the final examinations and not pass out, Mr Sakhrani submitted P was within normal range and was keeping up with the Course up to the time of the Accident. I disagree and refer to paragraph 423(f) above. 425.Dr Lam tried to downplay the strenuousness of PI training by saying (a) 2.4km run each day was not “very intensive at all”, (b) 30 minutes of additional/extra training every other day was not heavy workload and whilst it might cause muscle fatigue more easily it would also help build up muscles, and (c) insufficient rest from physical training and academic studies might affect P mentally but would have little effect on P physically. In my view, whilst such optimistic opinion might be applicable to a PI with fit physique and well knees, it did not sit well with P’s view of her PI training, which she found stressful and tiring. As P recognised, she was physically less fit than most of her squad mates. I further find P’s Knee Condition contributed to P’s worry and frustration over not keeping up with physical training (despite having modified training), and also the biometrics of the training exercises put pressure and strain on her weak and unstable left knee causing tenderness (particularly on the medial side), muscle laxity, weakened medial support and/or patella subluxations. Dr Lam explained that muscle wasting can be due to persistent/recurrent pain inhibition (ie loss of muscle contractability upon pain over time), and since the muscle will cause pain when it contracts to be “stiffer” or stronger (eg when it exerts force/ torque for movement/activity), the muscle tends to relax so as not to pull on the painful area, and this leads to muscle laxity/wasting (see paragraph 297 above). In my view, while the physical training exercises might help PIs with normal physique to build up muscles, such exercises (albeit modified for P) acting on P’s Knee Condition caused on-and-off pain and muscle laxity/wasting. This sat well with (a) quadriceps/VMO wasting or reduction as observed by the orthopaedists at PYNEH’s DOT and UCH’s DOT shortly after the Accident, and the Ortho Experts’ opinion that it would take 2-3 weeks (Dr Lam) or months (Dr Wong) for muscle wasting to be evident (see paragraphs 297 and 299-305 above), and (b) the view of the orthopaedist at PYNEH’s DOT that the left patella dislocation at the time of the Accident was due “…… 應該膝蓋受到密集訓練受唔到哂d力, 所以先會又移位再入返位 ……” (see P’s WhatsApp message to Kwan at 11:02am on 20 December 2013 in paragraph 482 below). 426.So far I gave focused on P’s physical training. P also struggled with her academic studies and homework despite putting in a lot of effort (see paragraph 420 above), and P’s academic examination results were not promising either (see paragraphs 435 below). Indeed, her overall performance as a PI up to the time of the Accident was below average and marginal. It explained why P was worried and anxious that she might not pass out, and she felt pessimistic and useless. Apart from being tired/fatigued from physical training (albeit modified) and additional/extra training, and worrying that she might not pass the final physical fitness examinations and might not pass out, she was also stressed by (a) having a lot of homework for her academic studies and not having enough rest/sleep from studying late into the night and getting up before dawn, and (b) worrying over her mediocre academic performance as evident from her examination results. 427.In my view, P was hugely worried, stressed and troubled that she seemed not to get the hang of PI training despite hard work and diligent efforts. It was a novel but unpleasant experience which she did not know how to cope. Previously her hard work at the Schools paid off in good results and she was a top student. P told the Psy Experts she lost about 2kgs in body weight after she started PI training, and she initially felt gloomy (好灰). Further, MNR of TKOH’s HoHCS in respect of the Chinese medical treatment P received from 2 November 2013 to 11 November 2016 recorded P’s history of present illness (現病史) inter alia as follows (G/940-942):
The fact that by 8 January 2014 P had “胃痛反覆數月 …… 嘔吐噁心 ……” suggested she suffered on-and-off stomach problem with reflux symptoms during her PI training. This was matched by (a) the consultation notes dated 18 March 2014 by UCH’s anaesthesia department for pre-operative anaesthetic assessment (G/929), the progress notes dated 9 May 2014 by UCH’s DOT (G/932) and the discharge summary dated 20 May 2014 by UCH’s DOT for the 1st Surgery in May 2014 (G/918) that stated P’s past medical history included “GERD [gastroesophageal reflux disease] previously, but none for a few months”,[96] and (b) the occupational therapy progress note dated 27 November 2014 by UCH (G/928) that also gave her past medical history as including “GERD [gastroesophageal reflux disease] with reflux symptoms”. Plainly, P had these vomiting and reflux symptoms when she was not coping and consequently stressed and pressured. I note from the Psy Jt Report that Dr Mak’s MNR dated 12 October 2017 (ie when P was reading the juris doctor programme and was stressed because she was not coping with her studies that were too difficult for her) recorded P had symptom of “psychogenic vomiting”. 428.I find on balance that P was very stressed and exhausted by the constant cycle of intensive physical training (albeit modified to excuse some strenuous exercises but with additional/extra training), heavy / difficult academic workload and continuous inadequate rest associated with PI training, so much so she had weight loss and psychogenic reflux issue, and was depressed and pessimistic about passing out. As seen below, P suffered right ankle injury and did not do well in her written examinations in November 2013. I am convinced she was also plagued by P’s Knee Condition, which condition was exacerbated by the strain of physical training and inadequate sleep/rest. This was a far cry from being top student in academics and in extra- curricular activities at the Schools, which filled P with dismay and unhappiness, and which she had yet to learn to cope with maturity and fortitude. 429.According to P’s account to the Psy Experts, although P initially felt gloomy (好灰), she was determined to complete the 9-month Course and to become an IP. “Her classmates were supportive, her senior classmates advised her to “pinch her nose” (meaning that she had to repress her negative feelings), and she knew that things will be easier once she completes the course. She could not go to her [CI] because [CI] would only believe in what [Kwan] said. She never thought about quitting the course as it was her childhood dream to become a police officer, and she carried the hopes of her family and relatives who all wanted her to succeed ……” On balance, I am unable to accept the fullness of P’s such account to the Psy Experts, and in particular I reject her claim that “[she] could not go to her [CI] because [CI] would only believe in what [Kwan] said”. In light of my findings above, I see nothing untoward in Kwan’s conduct towards her that would have caused her concern to approach Chau. I find this was nothing more than an unreliable prelude to her eventual complaints against Kwan and Chau in relation to the post-Accident events. 430.In my view, while P still outwardly yearned to pass out and to become an IP, and she tried to “pinch her nose” and to tell herself to carry on to keep at bay the distress of not attaining her dream and the embarrassment or even the shame of dashing the hopes of her family/relatives, failing to graduate or to pass out had become P’s permeating concern inwardly, and she was actually pessimistic and burdened with worry that this might become a reality. And this was even before the Accident. XI. RIGHT ANKLE INJURY 431.According to the computerised MNR of TKOH’s HoHCS, P received Chinese medical treatment from 2 November 2013 (Saturday) to 11 November 2016 (G/940-942). Under the section on “過住健康紀錄” in such MNR (G/940), the sub-section on “過敏記錄” made clear it was last updated on 2 November 2013, ie at the 1st consultation. Under the section on “求診紀錄” in such MNR, the sub-section on “現病史” noted P first attended TKOH’s HoHCS on 2 November 2013 for “右踝關節扭傷4日” and gave history of “以前左膝內側外傷髕骨移位反覆疼痛5 年” (G/941), and it was similarly recorded in the sub-section on “主訴” that the complaint was “右踝關節扭傷4日”, but in the sub-section on “求診日期” it was updated to 11 November 2016, ie at the last consultation (G/940). 432.Under cross-examination, P said she was not sure whether she attended TKOH’s HoHCS on 2 November 2013, but I find on balance she did as recorded. P claimed that at that time many squad mates would go together to consult Chinese medical practitioner because (a) they were very tired and fatigued from PI training, (b) “…… after the running, [they] also felt that [their] joints were not comfortable, so [they] also went to see the Chinese medical practitioner and told him about that……”, and (c) they hoped Chinese medicine powder prescribed by the Chinese medical practitioner could help restore their strength. But P denied having problems with her ankle/knee and/or having told the Chinese medical practitioner at TKOH’s HoHCS “右踝關節扭傷4日”, and suggested “……well, [P] think he had made a mistake by copy and paste ……”, “…… just like what happened in G/940……” 433.On balance, I reject P’s explanation as to why she consulted TKOH’s HoHCS:
434.As regards “以前左膝內側外傷髕骨移位反覆疼痛5年” recorded in MNR of TKOH’s HoHCS, P said when she 1st consulted the Chinese medical practitioner, he/she asked her if she had any previous injury and/or if she was in pain, and she replied “well, very seldom or no, no pain”, so she thought the Chinese medical practitioner used “classical Chinese to make such a conclusion there”. Again, I reject P’s explanation. First, I see only everyday modern Chinese language and not any “classical Chinese” used in such record. Secondly, if P gave such forthright answer of very seldom or no pain to the Chinese medical practitioner’s enquiry, it was difficult to see how he/she could come up with “反覆疼痛5年” with specific time period of 5 years. Thirdly, I have found P did actually have on-and-off pain after the 2nd Episode and before the Accident, and such record reflected the symptomatic P’s Knee Condition. I am satisfied on balance that it was P who told the Chinese medical practitioner “反覆疼痛5年”. In my view, P’s evidence in this respect reflected poorly on her overall veracity. XII. EXAMINATIONS (a) Academic examinations 435.After 10 weeks of PI training, a written academic examination took place on 18 November 2013 (F/733-734). P ranked 13 out of 14 squad mates of PI566, and was shown to be particularly weak in her tests on “data protection” and “common law, statute law and the Basic Law”, earning scores of 3.5 and 2 respectively. P had a total score of 53 out of a class average of 70.9. Kwan testified that compared with other squad mates P was certainly not the best student, and review of her examination results showed she was a lower performing student academically. In my view, P plainly had difficulties with her academic studies. As explained above, this was a novel, worrying and distressing experience for P who used to be top in her class at the Schools. I find that even though she still outwardly yearned to pass out and still gave her all with hard work and inadequate sleep for that goal, she was frustrated, scared and depressed that her diligent efforts only resulted in marginal performance so much so that she lost weight and had psychogenic vomiting. In my view, despite efforts at self-encouragement by telling herself to “pinch her nose”, she knew in her mind that she was not doing well, and turned dismal and pessimistic about passing out. (b) Physical training tests 436.P had not seen the undated PT Record (F/735) which Kwan said (and I have found) was prepared by the physical training instructor (who was not Kwan) (see paragraph 171 above). Kwan did not pay particular attention as to whether he had seen this document before, but agreed it was part of the administrative procedure for such tests results to be routed through him as the assistant CI to Chau as the CI. 437.The PT Record referred to (a) 3 physical training tests, ie (i) the motor fitness test (MFT) that was similar to the Physical Fitness Test (eg chinning, shuttle run etc), (ii) the 2.4km run, and (iii) the physical professional ability test (PPAT), and (b) 4 stages, ie the initial, intro (introduction), inter (intermediate) and final stages (see paragraph 171 above). P claimed to have no idea about the initial and the introduction stages, but agreed that after 10 weeks of PI training she had done the MFT and the PPAT tests. Kwan said since the sections for the “Inter” and “Final” stages in the PT Record were colour-blocked, it was likely that PI training had not yet reached the intermediate and final stages when the PT Record was made, but with scores and squad averages in respect of the 3 tests for the initial and the introduction stages available, the strong and weak PIs (as far as physical training was concerned) were becoming evident. P was ranked 12 or 13 out of 14 PIs in PI566 for the 3 physical training tests recorded in the PT Record. 438.In relation to P, the PT Record had no scores but had squad averages for (a) the 2.4km run and PPAT tests for the initial stage and (b) for the MFT test in the introduction stage. P denied she did not actually take the 2.4km run and PPAT tests for the initial stage. Although Kwan was not the physical training instructor, he knew PIs had to go through the MFT, the 2.4km run and the PPAT tests for each stage, and reasons had to be given before the physical training instructor would excuse any PI from taking part in such tests (but even so the physical training instructor would arrange for the omitted tests to be taken later on). According to Kwan’s understanding, this was what happened to the 2.4km run and the PPAT tests in the initial stage for which there were no scores, ie P did not take those tests, which tests would be administered later on. 439.In my view, even though P had not seen the PT Record, she must have known whether she had taken all 3 of the MFT, the 2.4km run and the PPAT tests on 2 occasions (ie for the initial stage and the introduction stage). On balance, I do not believe her when she denied not having taken the 2.4km run and the PPAT tests for the initial stage, which I find to be a poor attempt to downplay the existence of modified training that did not sit well with her claim that her left knee was pain-free and had good functionality. In my view, if P had taken the 2.4km run and the PPAT tests for the initial stage, there was no sensible reason why the physical training instructor simply gave the squad averages and omitted to put down her scores for such tests at the initial stage. The fact P had a score in respect of the MFT test for the initial stage underlined the fact she took such test but not the 2.4km run and/or the PPAT tests for that stage. As for the introduction stage, there was no score for P in respect of the MFT test, and I find on balance P did not take such test when the PT Record stated she was granted sick leave for such test. It did not appear to be a simple indisposition that would have allowed immediate rescheduling of the MFT test for another day. According to the PT Record, not only did she not take the MFT test, her “improvement index” was not available yet. 440.I find on balance that ordinarily P as a PI of PI566 would have to take the 2.4km run, the PPAT and the MFT tests for each stage, which was borne out by the squad averages for each of those tests for each stage (ie squad mates had to take all 3 tests for the squad average scores to be calculated for such tests). The fact P did not take some tests in the initial and the introduction stages was at least consistent with P having been given modified training, which excused her from certain strenuous physical training exercises (with the consequence that she would not have taken the corresponding tests). 441.But I find on balance that P was concerned, stressed and depressed by her modified training and consequent excuse from certain physical training tests at the aforesaid 2 stages, especially when (a) she discovered early on that physical training was more onerous than she anticipated, (b) she was lagging behind her squad mates (most of whom were physically more fit then she was) in physical training, and (c) she was worried she would fail the physical examination at the end of the Course (see paragraph 420 above). After all, P was anxious that the standards for passing out were strict and applied equally to all, and that the physical training instructor would later administer and she would have to take and pass the omitted physical training tests. I believe that by this stage (ie even before the Accident), although P still (a) outwardly yearned for her dream to become an IP, (b) worked hard to study and train and (c) tried to convince herself to “pinch her nose” to aspire to her dream, inwardly in her mind she was actually quite gloomy and pessimistic about passing out, and quite stressed by P’s Knee Condition that was exacerbated by physical training (albeit modified) with on-and-off pain, muscle laxity/wasting as well as patella instability. (c) Summary 442.Kwan agreed under cross-examination that PIs would pass out if they could meet the passing standards for final academic and physical training examinations at the end of the Course. But there were many individual tests for such examinations, so he could not say by the time of the Accident whether P could meet the requisite standards when P did not take part in some physical training tests in the initial and the introduction stages and her academic grades were below average. Kwan’s reservations were understandable. According to the results of the written examination on 18 November 2013, P was ranked 13 out of 14 PIs of PI566 (see paragraph 435 above), and the PT Record showed P was ranked 12 or 13 out of 14 PIs of PI566 for physical training tests in the initial and introduction stages (see paragraph 437 above). Chan confirmed that 5 PIs out of 45 PIs of PI566-568 failed to pass out, and the failing rates for PI569-571 and PI572-574 were even higher (see paragraph 378 above). There was reason to be concerned that P might not pass out, and Kwan’s experience in PI training gave him a “nose” that P might not meet the requisite passing out standards. 443.P claimed whilst other squad mates might have higher scores in academics and physical training tests, she had always been told she passed the physical training tests. She claimed that all along during PI training the emphasis was on passing and not securing high scores, so she believed the whole squad (including squad mates with low scores) would later pass out. On balance, I reject P’s such evidence, which was tantamount to saying that since she was told she passed her tests, she was therefore well on her way to passing out as all that was required was to pass and not to secure high scores. But this did not sit well with (a) the discussion and findings in the above paragraph in which 11% of the 2013 intake failed to pass out in their squads (see also paragraph 378 above), (b) P’s account to the Psy Experts (see paragraph 420 above) about her strong worry that she might not pass the final physical training examination to pass out, and/or (c) my findings in Part XII(a)-(b) above. I find P’s assertions to be an embroidered attempt to paint a picture that before the Accident her goal to become an IP was well within reach, and it was only due to Kwan’s and Chau’s evil scheme and Tan’s default that she was forced to resign and leave HKPF. But, as I have found, P was already not coping well with PI training prior to the Accident and she was trailing among the lower performing PIs in PI566. More importantly, I find that despite outwardly trying to tell herself otherwise, she was inwardly consumed with pessimistic worry about not passing out, which pessimism was cemented by the Accident, her left knee injury and need for surgery/rehabilitation that eventually, as I find, led to her resignation. But more of this later. XIII. LAYOUT OF PREMISES 444.The layout of the Premises was seen in the layout plans (H/943-944) and the photographs taken on 19 July 2017 (H/945 and 950-952), 20 July 2017 (H/949) and 14 April 2018 (H/946-948) (“Photos”). P and other women PIs resided at WBB[97] located on a slope above Police School Road (see H/947-949 and 952, “Road”). At the entrance of WBB (“Entrance”), there were a few steps down to a walkway (“Walkway”) that led to an open path (H/949-951, “Path”) that in turn led to the top of the Staircase. The slope between the upper Path and the lower Road is referred to as the “Slope” in this Judgment. For convenience, parts of the Slope to the right and to the left of the Staircase from the perspective of a person standing on the Path at the top of the Staircase looking down towards the bottom of the Staircase on the Road (ie the same perspective as P when she went down the Staircase at the time of the Accident, “Viewpoint”) are respectively referred to as “RHS Slope” and “LHS Slope” in this Judgment, and parts of the Path to the right and the left of the Viewpoint are respectively referred to as “RHS Path” and “LHS Path” in this Judgment. References in this Judgment to the right side and the left side in describing the layout of relevant parts of the Premises are based on the perspectives from the Viewpoint. 445.As one left WBB via the Entrance, on the left was the outer wall of WBB that abutted the few steps outside the Entrance and the Walkway (“Left Wall”), and on the right was some unpaved land outside WBB (“Unpaved Land”) with trees planted thereat, and there was a bush on the Unpaved Land at the corner of the Walkway and the Path (“Bush”) (H/946 and 949-951). Kwan said the Bush was present in similar condition at the time of the Accident. P also thought the Bush was probably there at the time of the Accident, but she could not remember whether its height was as short as shown in the Photo at H/950. The Photos showed (a) tall leafy trees near the Path to the right and left of the Staircase and also on the LHS Slope and RHS Slope but the surface of the Slope itself appeared to be covered with concrete (H/949-952), and (b) 2 blue upright signboards, one on the Unpaved Land (H/950), and the other at the top of the LHS Slope (H/946, 949 and 951). In re-examination, P said she had no impression whether the blue upright signboard on the Unpaved Land was there at the time of the Accident. But Kwan confirmed the blue signboard at the top of the LHS Slope was there at the time of the Accident. 446.Under cross-examination, P could not say whether the Slope at the time of the Accident looked the same as in the Photos, but claimed there was more vegetation around the Path, the Slope and the Staircase than shown in H/949-952. She recalled there were a lot of insects and a lot of leaves on the ground when she and other women PIs resided at WBB, and they said it was because there was too much vegetation around. P added there were more trees and vegetation at/around the Unpaved Land at the time of the Accident than shown in the Photo in H/950, but Kwan/Chau said the vegetation was in similar state as shown in the Photos in H/949 and 951. 447.There was a (a) wall lamp mounted up on the outer wall of WBB to the right to the Entrance (from the perspective of one leaving the WBB via the Entrance) and behind the Bush on the Unpaved Land (H/950-951, “Right Lamp”), and (b) another wall lamp up on the edge of the Left Wall that faced the Path (H/951, “Left Lamp”). Under cross-examination P could not remember whether the Left Lamp was there at the time of the Accident, but Kwan confirmed the Right and Left Lamps were there on the day of the Accident. 448.According to the P 1st WStmt, (a) the Right/Left Lamps (H/946 and 951) gave out orange-yellow coloured light, which was not very bright, (b) the Right/Left Lamps could only illuminate the Path but not the site of the Accident on the Staircase (ie 8-9 steps down from the top of the Staircase, “Site”), and (c) the Right Lamp was quite far from the Site. P agreed under cross-examination that judging from the position of the Left Lamp shown in the Photo in H/950-951, it should be closer than the Right Lamp to the top of the Staircase. From the Viewpoint of a person standing at the top of the Staircase, light from the Right Lamp would come from behind, and light from the Left Lamp would come sideways from the left. 449.The Staircase connected the Path above and the Road below the Slope (H/945-949 and 951-952), and comprised 20 steps that appeared to be made of grey-coloured concrete (H/945-949 and 951). At the time of the Accident the edges of the top and bottom steps of the Staircase were coloured yellow (H/945 and 951), but by 14 April 2018 the edges of all steps of the Staircase were coloured yellow (H/946-948). There were metal handrails on both sides of the Staircase from top to bottom (H/945-949 and H/951-952). For convenience, the handrails on the left hand side and on the right hand side from the perspective of the Viewpoint are respectively referred to as the “LHS Handrail” and “RHS Handrail”. Kwan/Chau said in-chief that the Staircase at the time of the Accident was the same as shown in H/951. 450.By cross-referencing to the compass directions in the layout plans in H/943-944, east and west corresponded respectively to the right side and the left side (from the perspective of the Viewpoint) of the Staircase. Thus, morning sunlight upon/after sunrise would come from right side of the Staircase and cast shadows of the RHS Handrail and nearby trees/vegetation along the RHS Path and/or on the RHS Slope onto some/part of the steps of the Staircase. This was borne out by the Photo in H/949 taken on 20 July 2017. Although such Photo was obviously taken after sunrise, natural light came from the right side of the Staircase (ie from the east) to cast shadows of objects on the right side (eg RHS Handrail and/or trees/vegetation along or on the RHS Path/Slope) onto the Staircase, especially parts the steps next to the RHS Handrail on the 1st dozen steps from the top of the Staircase. This was contrasted to the Photo in H/951 taken on 19 July 2017 with light coming from the left side of the Staircase (ie from the west). 451.For convenience, part of the Road to the left and to the right of the Viewpoint are respectively referred to in this Judgment as the “LHS Road” and “RHS Road”. There were 2 upright streetlamps on the kerbside of the Road opposite the Staircase, one on the LHS Road (“LHS Streetlamp”) and the other in the RHS Road (“RHS Streetlamp”) (H/952). According to the P 1st WStmt, P claimed the LHS/RHS Streetlamps were designed for illuminating the Road and could not illuminate the Site. 452.The 2 Photos in H/952 were taken on the same occasion on 19 July 2017 in broad daylight with light coming from the left side of the Staircase. In the top Photo, whilst the LHS Road itself was in sunlight, the Staircase and part of the RHS Slope next to it were in the shadows, which was unsurprising given the tall tree(s) seen on the Slope (which P thought were already there at the time of the Accident). In the bottom Photo, the Staircase as well as the RHS Road right up to the bottom of the Staircase appeared to be in the shadows. P said under cross-examination that there was more vegetation on the RHS/LHS Slopes at the time of the Accident than seen in the bottom Photo at H/952. 453.I summarise below P’s, Kwan’s and Chau’s evidence as to estimated distances (without actual measurement) of various artificial lighting sources vis-à-vis the Staircase:
454.Blk J was in the middle of the Premises, and the Parade Ground was identified as the Main Drill Square in the eastern part of the Premises in the layout plans (H/943-944). XIV. ACCIDENT (a) P’s use of Staircase 455.P said under cross-examination that women PIs did not reside at WBB at the beginning of PI training. After P moved to reside at WBB “…… maybe one or two weeks [before the Accident], but [P] don’t remember …… if [P’s] memory serves [her] right …… yes, but [P] don’t have an exact memory over this issue”, she started to use the Staircase. She claimed that by the time of the Accident she had probably used the Staircase 5-10 times. Whilst P would use the Staircase to go for morning roll call at the Parade Ground, she sometimes (but not necessarily) used the Staircase for the return journey. P claimed to have a general understanding of the Staircase and its surroundings, and she said she had to be and was careful when using the Staircase, ie “…… [she has] to make sure that on every occasion, [she] would be careful as much as possible ……” 456.P found PI training very tiring as a result of physical training (albeit modified), additional/extra training, heavy academic homework, late night studies and inadequate sleep (see Part X(d) and Part XII(c) above), and she told the Psy Experts that she was often tired and sleepy during the day (see paragraph 420 above). I find on balance P was in a tired and fatigued state when she descended the Staircase before sunrise on the day of the Accident. Ms Chao submitted P gave contrary evidence when she said in re-examination she did not have any feeling of weakness or pain in the left knee when she reached the top of the Staircase or the Site, and the pain started only when injury was sustained. In my view, there was no necessary contradiction between an overall tired and fatigued state and no feeling of weakness or pain at the very moment when P was at the top of the Staircase. (b) P’s post-litigation accounts of Accident 457.I turn now to P’s various accounts of the Accident that she gave after commencement of the present action, and will later cross-reference the same to her earlier accounts given shortly after the Accident. I start with the Ortho 1st Jt Report dated 9 January 2018. The Ortho Experts set out P’s account of the Accident given to them at the Ortho Jt Exam on 19 October 2017 as follows:
The 1st Ortho Jt Report stated that the Accident was the 3rd time P had left patella dislocation, and that all 3 dislocations spontaneously reduced afterwards. 458.On 30 October 2017, P’s solicitors wrote to P C Woo & Co, D’s solicitors in DCEC2645/2015, enclosing P’s letter dated 7 October 2017 (E/473) as follows:
459.P’s letter dated 7 October 2017 in turn enclosed her revised 3/1/14 Stmt as follows (E/474-475) which revisions she prepared herself in October 2017:
460.It was apparent P did not seek to change the description as to how the Accident happened in the 3/1/14 Stmt prepared on 3 January 2014 (ie “…… [when] I went down the [Staircase] from [WBB] to [the Road], I accidentally lost my balance and twisted my left knee”), which she confirmed under cross-examination to be still correct. P’s amended version of the 3/1/14 Stmt did not mention the more detailed description of the Accident in the SoC (see paragraph below). Under cross- examination, P saw no problem with the description that she lost her balance and twisted her left knee. When pressed on why in October 2017 she did not take the opportunity to set out the fullness of how the Accident happened as pleaded in the SoC when she proposed amendments to the 3/1/14 Stmt, all P could say was that it did not occur to her to describe the Accident in such detail. 461.In the SoC filed on 30 January 2018 (just over 3 months after P gave her account to the Ortho Experts) as verified by P’s statement of truth, P pleaded that (a) at/about 6:05am to 6:25am on 20 December 2013 she was required to go from WBB to Blk J via the Staircase, (b) “[when] descending the Staircase, [she] stepped on an unknown object, the edge of the stairs or the void” (“3 Scenarios”) and as a result lost her balance and fell, injuring her knee, and (c) prior to the Accident she was exposed to a rigorous and exhausting training regime (in terms of physical training and written assessments) so it was reasonably foreseeable that at the material time there was an increased risk of P sustaining the Accident because of her fatigue and the dark environment. 462.In the Psy Jt Report dated 21 July 2018, the Psy Experts reported P’s account to them at the Psy Exam on 31 May 2018 (4 months after the SoC was filed) as follows:
463.According to the P 1st WStmt dated 24 August 2018 (close to 3 months after the Psy Exam), P studied long into the night before the Accident for upcoming written tests, and she was in a tired state when she woke up at/about 5:30am on 20 December 2013. At/about 6:05am to 6:25am (P could no longer recall the exact time), P had to go from WBB to Blk J to meet up with other PIs to go running at the Parade Ground, and to do so she had to walk down the outdoors Staircase.[98] P said under cross-examination that women PIs who resided at WBB would “fall in” squad “somewhere a bit ahead of the Staircase” on the Road to proceed to Blk J. 464.The P 1st WStmt went on to say when P went down the Staircase on the day of the Accident, there were 3 women PIs who also resided at WBB walking ahead of her. P claimed she fell on reaching the Site (ie after walking down 8-9 steps on the Staircase). It was said the Site was dark, and P could not see what she stepped on that caused her to lose her balance and fall. P guessed she might have stepped (a) on a foreign object on the stairs, (b) at the edge of a step, or (c) in the void in front of the stairs (ie the 3 Scenarios), and then lost balance. When P fell she immediately held onto the RHS Handrail, but by then she had already injured her left knee and had to sit on the Staircase to rest awhile. P’s left knee was very painful, and she was unable to walk.[99] 465.Under cross-examination at the trial, P said she fell after walking 8-9 steps down the Staircase, but she did not fall down onto the steps on her buttocks. P said her left patella probably relocated before she felt pain and sat down. She said “…… the whole course of events was [P] twist and then [P] pulled [on the RHS Handrails] and then [P] sat on the stairs”, all of which happened very quickly. “Well, [P] only remember that [she] was in great pain ……”, and could not recall the detailed sequence of motions during the Accident. 466.As for P’s suggestion that she might have stepped on an unknown object or on the edge of a step, she said under cross- examination she did not check what she stepped on because “…… [well], after the [Accident], [P] was in great pain. [P] was so painful that [P] did not even know who was speaking to [her], who was around [her]. Well, [P] was only sitting there, [P] was in very great pain. And …… while [P] was waiting for the arrival of the ambulance, [P] was so painful that [P] vomit ……” As for P’s suggestion that she might have stepped in the void in front of the steps, P said under cross-examination that she took a step out and then Accident happened, so she was unsure whether she stepped in the void, on the edge of a step or on an unknown object (ie the 3 Scenarios), and then lost balance. P denied she made up these possibilities. 467.To put P’s above accounts in context, I turn next to the aftermath events and her accounts of the Accident to various medical personnel. XV. IMMEDIATE AFTERMATH OF ACCIDENT 468.Immediately after the Accident, P called out, and the 3 women PIs walking ahead of her turned back to ask how she was, and eventually helped her page for an ambulance. One of them was called Patty (whom P thought was surnamed Chong and who was probably莊婉嵐 mentioned in the 3/1/14 Stmt). P said under cross-examination that “…… as to what happened after the Accident [P] only remember that [P] was in pain, and then until the arrival of the ambulance, then [P] was taken to the ambulance ……” Patty stayed with P whilst P waited for the ambulance and went with her to RTSKH. In the P 1st WStmt, P said she sat on the Staircase for about 10-15 minutes before the ambulance arrived to take her to hospital for treatment. 469.According to the Kwan 1st/2nd WStmts, before Kwan went to the College on 20 December 2013, he was informed by a PI of PI566 (who could have been the squad prefect but Kwan could not recall due to lapse of time) that P accidentally tripped and fell at the Staircase outside WBB while she was heading to the Parade Ground for morning roll call (which was normally scheduled to be held at 6:30am very weekday), and was sent to hospital for treatment. According to the Chau 1st WStmt, as far as Chau recalled, he was informed by Kwan (who was the assistant CI) on 20 December 2013 that P had an accident at the Premises whereby she was injured and required sick leave. The fact that Chau learnt from Kwan that P was granted sick leave suggested Kwan notified him later in the day because P only sent the 1st MC to Kwan via WhatsApp message at 5:22pm (see paragraph 482 below). XVI. RTSKH AND PYNEH (a) RTSKH 470.After the Accident, P (accompanied by Patty) was taken by ambulance to RTSKH’s AED for treatment. According to P 1st WStmt, Patty stayed with P and helped her report to Kwan. Later, Patty left whilst P waited at RTSKH’s AED. Thereafter, P herself reported her condition to Kwan and Chau (see paragraphs 482 and 488 below). 471.P agreed the nurse/doctor at RTSKH’s AED asked her how the Accident happened. According to MNR of RTSKH’s AED (G/905), the triage nurse recorded under “Triage Assessment” that (a) “Chief Complaint / History” was “feel Ⓛ [left] knee (patella dislocate and self-reduce) while walking downstairs this morning”, and (b) “Past Health” was “Ⓛ patella dislocation”. P said under cross-examination she probably described the Accident in more detail to the triage nurse as follows: “…… certainly I have said that at that time it was very dark. When I was walking down along the Staircase I might have stepped on the air and then -- I said I don’t remember what I step on and then I had dislocation and then relocation …… Well, I have told her in such a detailed manner but I have no idea what she had written down because I would not have an opportunity to read this medical record ……” Such detailed account was not found in MNR. 472.The attending doctor at RTSKH’s AED recorded in MNR inter alia as follows:
P said “…… probably [the AED doctor] asked me whether I had any problem with my knee before. He asked me about my past history. I told him that this had happened twice before ……” When pressed on whether she told the AED doctor she sustained injury that day “while walking ↓stairs [downstairs]”, P said “…… I remember that at that time the sky was dim and I could not see what I had step on. And then I lost my balance and then I fell down. And then I told [the doctor] that I felt that my knee had suffered from dislocation. All along I was repeating the same matter ……” (see paragraph 471 above). The AED doctor did not record that P did not know what she stepped on and she then fell, but instead he/she marked the incident as “non-traumatic” in MNR. P claimed she could not dictate how the doctor made his/her record. 473.According to the medical report dated 19 February 2016 by RTSKH’s AED, P was suspected to have dislocated her left patella while walking down the Staircase, but it reduced spontaneously. Upon examination, “left patella in place”, “tendon joint base”, and “decrease range of movement”. 474.As Ms Chao pointed out, even on P’s own case, Kwan/Chau was not present at RTSKH and/or PYNEH (so P would not have felt under pressure or feel being picked upon) and she was anxious for treatment (as she felt painful at the time), so she would have accurately reflected the Accident to the treating nurse/doctor. I find on balance that P did not mention to RTSKH the 3 Scenarios and/or it was dark with dim lighting (which I find to be unreliable embroidery under cross- examination), and in fact P told the treating nurse/doctors the left patella dislocation and self-relocation happened while she was walking down the Staircase (as recorded by the triage nurse and AED doctor). Had P told the AED doctor the matters in paragraph 472 above, he/she would have recorded a slip (ie any or all of the 3 Scenarios) and fall (ie losing balance and falling down albeit not landing on the buttocks as P grabbed the RHS Handrail) incident and would not have formed the impression and recorded the Accident as non-traumatic. Indeed, it is not unusual for DOT/AED doctors who deal with trauma injuries to be alert to slip and fall incidents and to record them as such in their MNR. Indeed, the orthopaedist at TKOH’s DOT at the consultation on 31 July 2014 (G/912) recorded P’s medical history of “S/F [slip and fall] downstair 8/2013, landed on right side of body ……” (see paragraph 317 above). 475.But I do not agree with Ms Chao’s submissions that just because P told the AED doctor she previously had left patella dislocation twice she must have known the Accident was a result of her pre-existing left patella problem rather than the condition of the Staircase. P’s evidence was that the AED doctor asked about her past medical history, and she responded by telling him about the 1st/2nd Episodes. The usual practice of doctors in eliciting past medical history from patients to form clinical diagnosis and treatment plan did not mean that patients answering such enquiries would have assumed the current medical problem was caused by past health issues. 476.In the Psy Jt Report, the Psy Experts recorded P’s account to them at the Psy Jt Exam as follows:
Under cross-examination, P claimed she feared the upcoming academic examination would have to be delayed, but “…… [it] was not the case that [she] knew the examination could be delayed ……” When pressed, P said she was not the one to decide whether or not to postpone the examination, but was constrained to concede that postponing the examination “might be an option”, and that she knew that if she were to miss the examination due to medical condition, it was at least possible to request postponement of the examination. Mr Sakhrani submitted that postponing an examination was different from postponing the entire PI training Course, so P’s understanding of the former did not mean she knew about Postponement and/or Re-training. But in my view, the fact that P knew she could ask for postponement of an important matter like examination for medical reason sat well with Kwan’s evidence that even before the Accident he had told P (when she informed him about her pre-existing left knee condition and that she could easily injure her knee again) about the possibilities of Postponement and/or Re-training if she sustained injury (see paragraph 397-405 above). 477.After P was assessed by RTSKH’s AED, she was transferred to PYNEH’s DOT on the same day for more detailed examination. According to the Psy Jt Report, P’s left knee continued to be painful and swollen. (b) PYNEH 478.P agreed under cross-examination that she still remembered how the Accident happened when she was transferred to PYNEH’s DOT, and she gave her account to the orthopaedist there. According to the patient notes of PYNEH’s DOT on 20 December 2013 (G/906-907) (see also the discharge note on 21 December 2013 (G/909)),
P agreed (a) she gave the 1st 2 dash points under “PMH” (past medical history) to the orthopaedist at PYNEH’s DOT, and (b) she told him she was then a student at the College when he asked for her occupation. As for the 1st 2 dash points under “HPI” (history of present illness), P claimed she told the orthopaedist at PYNEH’s DOT what she had told the nurse/doctor at RTSKH’s AED about the Accident (which was not found in MNR) (see paragraphs 471-472 above), and disagreed she merely disclosed what was recorded by the orthpaedist at PYNEH’s DOT. 479.According to the medical report dated 28 January 2016 by PYNEH’s DOT, P was admitted to PYNEH’s orthopaedic ward on 20 December 2013, and gave history that “…… she had left knee pain and give way while descending stairs, resulted in left patella dislocation, which was spontaneously reduced before admission. She was unable to walk after injury. She had similar episodes of left patella dislocation in 2003 and 2006 ……” The working diagnosis was “[recurrent] left patella dislocation ……” X-ray left knee showed no fracture or dislocation. P was prescribed analgesics and left knee orthosis with physiotherapy. The medical report dated 1 April 2015 by UCH’s DOT also recorded “[knee] pain and swelling was reported after the injury”, and P was admitted to PYNEH for 20-21 December 2013 with x-ray left knee showing no fracture. 480.In my view, for the reasons set out in paragraph 474 above applicable mutatis mutandis, I am not persuaded P told the orthopaedist at PYNEH’s DOT about the 3 Scenarios and/or it was dark with dim lighting at the time of the Accident (which I find to be unreliable embroidery under cross-examination), and I find on balance P reported that her left knee gave way while she was descending the Staircase (as recorded by the orthopaedist). 481.Indeed, P agreed that the orthopaedist at PYNEH’s DOT who examined her on 20 December 2013 told her inter alia “the bones have not been hurt, the main problem should be that the knee cap was subjected to intensive training, could not withstand the strength, and hence the position is shifted once again ……”, which medical advice P informed Kwan and Chau by WhatsApp messages at 11:02am and 12:31pm on the same day (see paragraphs 482 and 488 below). In my view, had P given a detailed account about the Accident (ie the 3 Scenarios) and the lighting condition of the Site to the orthopaedist at PYNEH’s DOT as she alleged, the orthopaedist would have taken note of her claimed slip and fall, and would not have given his medical view so immediately without, say, waiting for review of the MRI he recommended P to have on private basis (see paragraph 499 below). 482.On 20 December 2013, the following WhatsApp messages passed between P (also known as Jacqueline) and Kwan (E/440-441) when P was at PYNEH’s DOT:
483.According to the Kwan 1st/2nd WStmts, after Kwan was informed of the Accident, he kept close contact with P by WhatsApp messages and by telephone conversations (E/440-441). He was informed of the progress of P’s medical treatment, and learned she was admitted to PYNEH. He later contacted P by telephone as he wanted to know her condition/prognosis so as to understand her injury and to see how to take care of her. But from what P told him Kwan essentially only learned she had knee injury, so he also tried to contact P’s treating doctor to find out more about her condition. Kwan was unable to reach the doctor at the time, so left his telephone number for the doctor. P told Kwan she wished to be discharged, but Kwan advised her to seek doctor’s advice as to the extent of her injury first. 484.I find Kwan’s evidence that P wished to be discharged consistent with P’s WhatsApp message at 5:12pm on 20 December 2013 that indicated her wish to return to the College to obtain written test notes. P also sent WhatsApp message at 12:25pm on 21 December 2013 to ask Kwan whether she could return to the College to retrieve course materials to study at home during her sick leave (see paragraph 505 below). When Kwan gave evidence, he readily/fairly agreed P’s messages appeared to indicate P’s wish to use her sick leave for home studies so she could ready herself for the upcoming academic test. Chau under cross- examination believed (and on balance I accept) the next academic assessment tests were to be held in January 2014.[102] 485.According to the P 2nd Wstmt, P agreed she did tell Kwan she hoped to be discharged as soon as possible, and she explained she hoped to return to duty as early as possible to continue with PI training as she did not want her injury to affect her learning progress. Much play was made of P’s anxiety to return to the College to retrieve study materials for studies at home during sick leave as demonstration of her keenness to carry on, and to bolster the suggestion that she would not have voluntarily resigned on 3 January 2014. I accept on balance that in the immediate aftermath of the Accident (as consistent with P’s stance before the Accident), P still outwardly yearned to pass out and to become an IP, and tried to “pinch her nose” and to convince herself she should be more diligent and should work harder, but inwardly in her mind she knew she was already giving all she’s got and yet was not coping well with PI training, so she was worried, frustrated and depressed that she might not pass out. P was by nature diligent and hardworking, and it came as no surprise that with the unfortunate interruption by the Accident and consequent sick leave ahead of the imminent academic test in January 2014 she tried to continue with her studies during sick leave. Kwan, quite fairly, did not shy away from this in his oral testimony. 486.But in my view, 3 matters were of note:
487.P suggested the WhatsApp communications showed Kwan picked on and harshly criticised her. P claimed that by the WhatsApp message at 5:20pm on 20 December 2013 Kwan scolded her by questioning why she wrote to Chau in English and to him in Chinese. Under cross-examination, Kwan agreed P was quite respectful towards him, and said by such WhatsApp message he merely pointed out P’s error and did not scold her. He explained that from the beginning of PI training PIs were encouraged to use more English because upon passing out and becoming IPs they would have to use English in their daily reports/diaries, so he considered P should have reported to him in English. In my view, whilst Kwan’s message “Why did u write Eng whatsapp to CHAU sit n write Chinese to me???” viewed individually might appear to be a curt rebuke, it must be considered through the prism of PI training which both P and Kwan were aware that harked back to Kwan’s teaching all along on more use of the English language. On balance, I do not accept this WhatsApp message was scolding for scolding’s sake. I am afraid P’s resentment of Kwan (whom she convinced herself was to be blamed for her misfortunes) coloured her perception of the WhatsApp message, and she found sinister meaning when there was not. I find on balance P’s complaint was nothing more than an unreliable attempt to lay foundation for suggesting Kwan together with Chau (or perhaps Tan too) acted in a hostile manner to push her out of the College. 488.On the same day (ie 20 December 2013), the following WhatsApp messages passed between P and Chau (E/446) about P’s condition at PYNEH:
489.Chau agreed he knew about the Accident on the very same day it occurred through Kwan and the squad prefect, and P also contacted him that day (see above paragraph). According to the Chau 2nd WStmt, as far as Chau recalled, P communicated with him by WhatsApp messages, and he instructed her to approach Kwan accordingly. But the P 2nd WStmt claimed Chau did not directly instruct her to report to Kwan, and it was later in the day when she telephoned Kwan that Kwan told her not to send text messages directly to Chau regarding the Accident and to report such matters to him. I find on balance that Chau misremembered (since there was no reference to this in the WhatsApp messages between P and Chau, and Chau did not speak to P by telephone on 20 December 2013), and it was Kwan who asked P to contact him first on matters regarding the Accident, which was not unusual as Kwan explained he was the one to deal with non-teaching and welfare-related matters concerning PIs. But I do not dismiss the possibility that Chau asked Kwan to tell P of such arrangement, which might have given rise to Chau’s confusion. However, after careful consideration, I am not persuaded Chau’s faulty recollection in this respect undermined his overall credibility. 490.Chau could not remember whether he had seen the 1st MC that P sent to Kwan by WhatsApp at 5:21pm on 20 December 2020 followed by a WhatsApp message at 5:22pm stating this was the MC from the doctor, but agreed Kwan should have informed him as soon as possible about P’s sick leave and about the contents of the 1st MC (see paragraph 469 above). 491.From the above, it appeared P informed Kwan/Chau the following on 20 December 2013 (Friday):
492.According to the Chau/Kwan 2nd WStmts, after learning of the Accident, Kwan and Chau discussed about the Accident and P’s condition. Chau advised Kwan to deal with P’s situation according to the Standard Procedures[104] for handling injuries suffered by PIs (see paragraph 97 above). Kwan said under cross-examination that he discussed with Chau about P’s injury, and although HQO12/11 (see Part XXV below) covered the main points, Chau as the CI asked him to follow the Standard Procedures (which effectively aimed to improve the welfare of the injured officer and to provide reasonable accommodation thereby complementing the requirements in HQO12/11, and which Kwan would have attended to anyway), so the Standard Procedures came within Kwan’s work duties. Kwan also said he would also update other stakeholders (eg the physical training instructor) on P’s situation and then he would report to Chau. In my view, the Accident was not the first time the College had to deal with PIs suffering injuries during PI training. Chan spoke of experience in respect of PIs failing to pass out or requiring Postponement or Re-training as a result of physical injuries (see paragraphs 377-378 above). In the circumstances, I find it unsurprising and I accept on balance that Chau had his own Standard Procedures for dealing with such situations apart from HQO12/11. 493.But Kwan was clear that if there was/were specific measure(s) he would take or specific advice he would give to facilitate P’s recovery, he had to seek Chau’s prior approval before he could implement such measure or give such advice (eg Kwan would need Chau’s prior approval to, say, arrange for P’s exemption from physically demanding training such as foot drill, for allowing her time off for rest, or for implementing Postponement), and if and when he implemented such measure or gave such advice upon prior approval, he had to report to Chau after it had been done. 494.Kwan also gave evidence that he again referred to the possibilities of Postponement and/or Re-training over the telephone when by WhatsApp messages he asked P to call him (see WhatsApp messages at 9:51am, 4:59pm and 8:14pm on 20 December 2013 and 5:51pm on 27 December 2013 – see paragraphs 482 above and paragraph 541 below). Mr Sakhrani submitted that if this were really an act of “reasonably accommodating” P, as D seemed to suggest, it was not credible because in breach of the express/formal requirements in HQO12/11 for “proper records” to be made (so there would be written proof that reasonable accommodation was given), this was not recorded. 495.In my view, Kwan did not actually give or provide accommodation to P by way of Postponement or Re-training at that time. It would have been impossible to do so without understanding P’s treatment plan and prognosis. The reasonable accommodation given at that time was to let P go off duty on sick leave as recommended by PYNEH’s DOT. I find Kwan mentioned Postponement and/or Re-training to P shortly after the Accident to remind her she could think about these possibilities as appropriate. After all, it was ultimately P’s choice whether or not she would contemplate accommodation of such nature. It was also clear from Kwan’s evidence that if there was any positive indication from P, P would have to provide the necessary information and advice regarding her injury (ie at least the treatment plan and prognosis) to support and justify the need for Postponement or Re-training so that prior approval could be sought from Chau for formulating and/or putting forward to P any serious plan for Postponement or Re-training (see paragraph 493 above). In my view, this made practical sense. Whilst Kwan was the front-line interface with the injured PI to help her consider possible options to facilitate her recovery and her PI training, Chau as the CI in charge of the injured PI’s PI training had wider considerations (eg the nature of the injury, the nature and time needed for required treatment, the sick leave period, the medical prognosis, the impact on PI training and the administrative arrangements) in formulating and approving proposal for accommodation in the longer term (in contra-distinction to, say, approving sick leave and/or arranging light duty for a short while). 496.Further, for reasons set out in paragraphs 400-403 above and Part XXV below, I am not persuaded there was any “duty” or “requirement” to record such overture to a non-indexed injured officer in contra-distinction to record “the nature of accommodation …… which has been provided to a HIO” (my emphasis). But even if paragraph 47 of HQO12/11 were applicable to P despite paragraph 3 thereof that applied paragraphs 5-9 (rather than paragraph 47) of HQO12/11 to injured or ill “officers who have not been classified as a HIO”, no accommodation by way of Postponement or Re-training “has been provided” to P as yet during 20-27 December 2013 when P and Kwan spoke on the telephone for record to be made when she was still on sick leave and had not returned to the College. 497.I also note that after the Accident Kwan made arrangements to reasonably accommodate P by informing the course instructors (eg the physical training instructor) to excuse her from physical demanding activities. As evident from HQO12/11, reasonable accommodation could take different shapes and forms. But P did not complain that no record as made of such accommodation. 498.According to the patient notes dated 21 December 2013 by PYNEH’s DOT, the orthopaedist recorded inter alia “Home today” and “SL [sick leave]”, and the nurse recorded at 11:00am that P was ambulatory with stick “today steadily. Informed of discharge today. Awaited discharge documents”, and at 2:30pm that “[discharge] plan to patient with understanding confirmed” (G/908). 499.P denied under cross-examination she asked the orthopaedist at PYNEH’s DOT to discharge her, but when confronted with PYNEH’s discharge note dated 21 December 2013 that recorded “Patient requested D/C [discharge]” (G/909), P then changed to say she requested discharge as a result of her discussions with the doctor at PYNEH because “she was keen to know what happened inside her body”:
500.Whild P also wished to return to the College to collect materials to study at home during sick leave, I find on balance that her main reason in asking for discharge from PYNEH’s DOT was her anxiety to have private MRI examination. I find such anxiety for MRI arose out of P’s understanding of (a) the concern of the orthopaedist of PYNEH’s DOT that the main problem was overloading of her left patella as a result of intensive training (albeit modified) that led to her left patella dislocation, and (b) such orthopaedist’s clinical working diagnosis of tear of MPFL and his concern that such ligament would become more loose/lax later. As explained by the Ortho Experts, the working diagnosis could only be confirmed or ruled out by MRI and not by x-ray which would not show up soft tissues (see paragraphs 274-276 above). 501.In my view, this clearly worried P who wanted to find out if her left knee could still endure physical training for the remainder of the Course and to meet the passing standards for passing out, a matter which exercised her even without the Accident. This heightened concern over the untimely and disappointing Accident with left patellar dislocation/relocation injury on top of her existing worries about lagging academic studies and weak physical training led to increased pessimism and despondency even though P still outwardly clung to her dream to become an IP and applied her usual diligence. Consequently, P consulted Dr J Lam on 24 December 2013 and sought his referral for MRI left knee. 502.But I disagree with P’s allegation that Kwan did not answer the telephone call from PYNEH’s DOT. According to the patient notes dated 21 December 2013 by PYNEH’s DOT (G/908), the orthopaedist of PYNEH’s DOT spoke with Kwan at 9:00am on 21 December 2013, “informed condition” as well as “explained rehab [rehabilitation] plan”. According to the Kwan 1st/2nd WStmts, P’s doctor (without identifying himself) replied to Kwan by telephone, but such doctor only provided limited information about P’s injury/condition and, claiming privacy concerns, he/she did not disclose P’s prognosis. In my view, Kwan wanted to know P’s prognosis and treatment plan to consider what more was required for P. 503.P was discharged from PYNEH on 21 December 2013 with sick leave for 1 week from 20-28 December 2013 (E/437). This was borne out by the 2nd MC dated 21 December 2013 by PYNEH’s DOT for her “left knee injury”, which also recommended P to “avoid heavy physical duty for 2 weeks from the date of this certificate” (E/437). 504.According to the medical report dated 28 January 2016 by PYNEH’s DOT, P was referred to UCH. According to the P 1st WStmt, P was referred to UCH’s DOT because it was near her home and she had regular follow-ups there since the 1st/2nd Episodes. P claimed she could not remember whether the consultation on 27 December 2013 (see paragraph 521 below) was her usual scheduled follow-up with UCH’s DOT[105] or expedited upon referral by PYNEH,[106] but according to the Psy Jt Report, she reported to the Psy Experts that “…… [she] was given sick leave for 1 week [by PYNEH’s DOT] and an appointment was arranged at [UCH] in 1 week’s time”. I find the appointment was expedited due to PYNEH’s referral. 505.On 21 December 2013, the following WhatsApp messages passed between P and Kwan (E/441):
According to the Kwan 2nd WStmt, Kwan was informed on 21 December 2013 P would be discharged that day, and she was granted sick leave for 9 days (20-28 December 2013). Kwan said he advised P to rest at home instead of attending the College during her sick leave, which I find to be proper accommodation for P’s then circumstances. Chau said he believed Kwan told him P was discharged from PYNEH on 21 December 2013 and was granted 9 days’ sick leave for 20-28 December 2013, but he did not remember when he was so told. But Chau said that generally if a PI required sick leave (no matter long or short), Kwan as assistant CI should inform him as CI as soon as possible. Plainly, Chau endorsed such accommodation for P. 506.P cited Kwan’s WhatsApp message at 9:42am on 21 December 2013 as another example of Kwan being harsh on her and adopting a hostile attitude. I disagree. Whilst the words of the message were succinct as social media messages tended to be, I find it was quite clear Kwan was responding to P’s query in her WhatsApp message at 9:07am, and making clear that whether she was to be granted sick leave depended on her own need and the doctor’s recommendation, and should not premised on his instructions, which in my view made eminent good sense. I see no basis to criticise Kwan for such reply. XVII. AFTER DISCHARGE FROM PYNEH 507.According to the Psy Jt Report, P told the Psy Experts that “…… [after] discharge from hospital, she went to the [College] to collect her books as she wanted to continue preparing for the coursework ……” On 21 December 2013, P on medical advice bought a walking stick to aid walking (F/711). She stayed at home to recuperate during sick leave from 21 to 28 December 2013, but made an appointment to consult Dr J Lam on 24 December 2013. 508.According to the Chau 2nd Wstmt, Chau was on vacation leave from 26 December 2013 to 2 January 2014. His colleagues could reach him via WhatsApp or mobile phone during his absence from duty. But Chau did not recall having communicated with P via either means during his vacation leave. Indeed, Chau claimed he did not communicate/ meet with P until he resumed duty on 3 January 2014. But Chau was in touch with Kwan after 20 December 2013, so he was aware there were some communications between P and Kwan between the period from 20 December 2013 and 1 January 2014, but he was not sure what means they used although he knew there were verbal discussions and believed there might have been WhatsApp messages. Chau could not remember whether he had seen any particular WhatsApp message between Kwan and P. Chau believed Kwan and P would also have further communications about P’s injuries on 2-3 January 2014, but he did not know whether it was by WhatsApp message or face-to-face communications. Chau agreed Kwan (who had more to do with PIs’ welfare) should update him on P’s condition. XVIII. DR J LAM 509.According to the Psy Jt Report, P told the Psy Experts that as the period after the Accident was Christmas, she did not want to wait for treatment, so upon the recommendation of her mentor she sought assessment by a private orthopaedist. Actually, I find P already made up her mind to consult a private orthopaedist when she asked to be discharged from PYNEH’s DOT (see paragraphs 499-501 above), and approached Dr J Lam on recommendation of her mentor. 510.On 24 December 2013, P attended the Centre for Orthopaedic Surgery to consult Dr J Lam who diagnosed her to suffer from “dislocation patella of left knee” and granted her sick leave from 24 December 2013 to 3 January 2014 (see Dr J Lam’s 3rd MC dated 24 December 2013, E/438). 511.The medical report dated 22 February 2016 by Dr J Lam stated inter alia as follows:
512.P said under cross-examination that she told Dr J Lam about the Accident in the same terms as he told the doctors at RTSKH, PYNEH and (later) UCH (see paragraphs 472-474 and 480 above and paragraphs 522-523 below), and she was grateful to Dr J Lam for identifying a loose body in her left knee. On balance, and for the reasons in paragraph 474 above applicable mutatis mutandis, I am not persuaded P told Dr J Lam about the 3 Scenarios and/or it was dark with dim lighting at the time of the Accident. Had such detail been given to Dr J Lam, he would have recorded it in his report, which on its face was silent on how the Accident happened. 513.Upon Dr J Lam’s referral, P attended Causeway Bay MRI Centre and had “MR left knee (plain scan)” by consultant radiologist Dr Yiu on 27 December 2013. According to the Psy Jt Report, P told the Psy Experts she had MRI scan left knee which showed the presence of a bone fragment in her knee and some abnormality in the tendons. However, it was evident from Dr J Lam’s medical report (see paragraph 281 above) that it was Dr J Lam who identified the loose body in the lateral gutter from review of x-ray and not MRI film. Rather, Dr Yiu stated in the MRI Report “[no] intra-articular loose body is identified at 3-D image” (see paragraph 281 above). 514.P at first said under cross-examination that when the MRI Report was available on 27 December 2013, she collected the MRI film from Dr Yiu, but Dr Yiu sent the MRI Report directly to Dr J Lam. P claimed Dr J Lam was not in Hong Kong between 27 December 2013 and 3 January 2014, so no further appointment was scheduled to consult him. P went on to claim that as she did not see Dr J Lam again, she was not told that an operation had to be done, and she next consulted Dr J Lam after the 1st Surgery in May 2014. 515.This did not sit well with what P told the Psy Experts who recorded in the Psy Jt Report that “…… [P] was told that she needed an operation. As the fees for the operation were quite high, she preferred to wait for her upcoming appointment at [UCH] ……” Likewise the Ortho Experts recorded in the Ortho 1st Jt Report that P told them as follows:
516.2 matters were obviously of note. First, since P attended consultation at UCH’s DOT on 27 December 2013, P’s account in the Psy Jt Report clearly showed Dr J Lam told her of the need for surgery before “her upcoming appointment at [UCH]”, so he must have so told P at the at the consultation on 24 December 2013. Secondly, when Dr J Lam told P “she needed an operation” at the consultation on 24 December 2013, he only had access to x-rays because the MRI was done 3 days later. I have alluded to the query whether Dr J Lam ordered fresh x-rays or whether he viewed the x-rays taken by PYNEH’s DOT, and repeat my observations in paragraph 237 above. 517.When pressed on whether she told the Psy Experts she “needed an operation”, P tried to dissemble by saying “…… [well], the thing should be that at that time it was something happened a long time ago and I put everything together ……” (my emphasis). When further pressed whether she knew by the end of December 2013 she had to have surgery, P was constrained to say “[there] is such possibility” and agreed she could not afford such surgery to be done in the private sector. She then confessed that at the consultation with Dr J Lam on 24 December 2013 and “…… [before] the MRI scan took place, [she] was told [by Dr J Lam] that because of the presence of bone fragment, so operation was needed to remove that ……”, and “…… also talk about how much the operation for the removal of the bone fragment would cost. If [P’s] memory serves [her] right, the cost would be slightly over $100,000 ……” On balance, I reject P’s evidence in paragraph 514 above in its entirety as hopeless dissembling in poor attempt to hide the fact that she in fact knew she needed corrective surgery. 518.I have no doubt that by 24 December 2013 P learned from Dr J Lam and by 27 December 2014 she also learned from UCH’s DOT that (a) she needed corrective surgery, (b) this time, unlike the 2nd Episode, conservative treatment was not offered as a differential or alternative treatment plan, and (c) she could not afford surgery in the private sector. As regards (b) above, even on her own accounts to the Experts (see paragraph 515 above), P did not understand from the doctors that corrective surgery was optional. 519.It was equally apparent from the above that P was evasive about such fact, that she tried hard to dissemble even when confronted with the Psy Report, and that she only owned up that she knew about the need for surgery when further pressed by Ms Chao. I find on balance that Dr J Lam and later UCH’s DOT told her the surgery contemplated was reconstruction/corrective surgery mainly for stabilising the patella, to strengthen medial support and to decrease risk for further dislocation (see Consent Form for the 1st Surgery dated 21 January 2014 – see paragraphs 830-831 below) and not merely for removing the loose body in the lateral gutter spotted by Dr J Lam (which fragment eventually was not found in the intraoperative findings of the 1st Surgery). In my view, P’s emphasis on surgery for removal of the loose body was an unreliable effort to deflect attention from the main purpose of the needed surgical intervention which was to deal with the underlying P’s Knee Condition, and which was similar in purpose to the soft tissue realignment operation offered by UCH’s DOT after the atraumatic 2nd Episode, which purpose she knew and understood, but which surgery she eventually refused. 520.It was therefore no wonder that P told the Psy Experts (as noted in the Psy Jt Report) that “…… [during] this period, [P] was very worried. She did not want to respond to messages from her fellow classmates. She told her family members and relatives, who were all worried about her condition. She felt unhappy that she was a burden to them ……” XIX. UCH’s DOT 521.On 27 December 2013, P attended UCH’s DOT upon referral and early arrangement by PYNEH’s DOT. According to the consultation notes by UCH’s DOT for such consultation (G/917):
522.According to the medical reports dated 24 December 2015, 30 March 2016, 19 May 2017 and 1 April 2015 by UCH’s DOT, it was recorded that P’s latest dislocation of her left patella was on 20 December 2014 “while walking downstairs in the [College]” (my emphasis). But P claimed under cross-examination that “…… [P] remember that all along what [P] have told the UCH doctor was that when the [Accident] took place, the sky was dim, and while [P] was walking down the Staircase, [P] did not know what [P] had stepped on and then as a result of that [P] lost [her] balance and then [P] felt dislocation and relocation ……” But when it was pointed out that the consultation notes by UCH’s DOT recorded “3rd dislocation 20/12/2013 while running No fall / contusion”, P later said “…… [P] don’t remember if [P] said [P] was running or [P] was walking along the Staircase ……”, but agreed there was “no fall / contusion” as she did not land on her buttocks. 523.I think the reference to “running” in the consultation notes of UCH’s DOT was an inadvertent mis-recording when P was walking and not running down the Staircase at the time when the Accident happened. Indeed, this was corrected in subsequent medical reports by UCH’s DOT in 2015-2107 which consistently stated P had her left patella dislocation “…… while walking downstairs in the [College] ……” I accept the record of “no fall / contusion” was correct because P did not fall down to land on her buttocks. But for the reasons set out in paragraph 474 above applicable mutatis mutandis, I am not persuaded P told the orthopaedist at UCH’s DOT the 3 Scenarios and/or it was dark with dim lighting at the time of the Accident. 524.According to the medical report dated 1 April 2015 by UCH’s DOT, when P was seen at the clinic of UCH’s DOT on 27 December 2013, “…… [clinically], wasting of the quadriceps muscles was evident. Tenderness was elicited over her medial patella-femoral ligament (MPFL). The option of reconstruction surgery was offered ……” As explained in Part XX below, the MRI Report and corresponding MRI film were not available to the orthopaedist of UCH’s DOT on 27 December 2013. Thus, the recommendation for reconstruction/corrective surgery was made without MRI investigation. In my view, the need for operation was obvious to the orthopaedist at UCH’s DOT (and indeed to Dr J Lam who also advised surgery): (a) this was the 3rd documented dislocation and relocation of P’s left patella against the background of P’s Knee Condition with higher chance of further dislocation in the absence of corrective surgery, and (b) the medial soft tissue support for stabilising the left knee was very much weakened (eg “wasting of the quadriceps muscles”, tenderness elicited over MPFL, patella apprehension sign, J sign etc as noted by UCH’s DOT). As noted by Dr J Lam in his medical report dated 22 February 2016, his examination showed “…… there was effusion and sign of patella instability ……” (see paragraph 511 above). Thus, as Dr Wong explained, unless the weak and unstable left knee was stabilised by corrective surgery, intensive training would not have strengthened the knee and instead might put the weakened and unstable knee at further risk. I reiterate the purposes of the needed reconstruction/corrective surgery set out in paragraphs 230-231 and 519 above, which dovetailed with Dr Wong’s opinion that it was after the left knee was stabilised by corrective surgery to reduce risk of further patella dislocation that P could safely proceed with an intensive muscle hardening regime to rebuild wasted/lax muscles and to strengthen the soft tissue support to protect the left knee (see paragraphs 179, 188(c), 206, 209 and 215 above). So although the consultation notes dated 27 December 2013 and the medical report dated 1 April 2015 by UCH’s DOT referred to “option of reconstruction surgery” having been explained/offered to P, I find on balance it was an “option” in the sense that it required patient consent, but in my view, the record in the consultation notes that surgery was “explained to patient” meant the orthopedist at UCH’s DOT (like Dr J Lam) explained to P that surgery was needed/advised and entailed consequent extensive physiotherapy. Indeed, the consultation notes and medical reports did not refer to any differential treatment option of conservative treatment. So the consultation notes dated 27 December 2013 by UCH’s DOT went on to record that P “wishes to have operation”, but merely preferred to have the surgery “after graduation”. It was clear that P recognised and accepted the need for operation, but was merely wishful over its timing. As explained in paragraph 288(b) above, “VMO training” under the plan of management by UCH’s DOT was for training up muscle “…… to balance the knee ……” rather than to deal with the muscle wasting (since P declined the 3-4 weeks’ sick leave that UCH’s DOT intended to prescribe and insisted on going out and about on walking stick despite patella instability of the left knee that required surgery). 525.But P claimed under cross-examination that on 27 December 2013 the orthopaedist at UCH’s DOT told her “…… if [she] had the MRI examination conducted on [her] by a private doctor, then wait for the MRI results because he said that there might be opportunities that [she] did not need to do that. Probably [P] said that …… then to wait for the MRI before doing that and if [P] need to do that, then it might be after [her] completion of the study. And then the doctor said that then after the MRI report was available, then wait until the next appointment -- sorry, wait until the next follow-up treatment on 21 January. By that time, then we would decide whether to do the operation or not ……” P claimed that as “…… at that time the MRI results were not available yet, so of course [P] wished to have the operation after the graduation. [P] said if there was no bone fragment, then for sure [P] would bear the pain and complete the course”. 526.I do not accept P’s above account, and find on balance she was making this up as she went along in her testimony. For reasons set out in Part XX below on how P came to have her MRI left knee and how she learned of the MRI results, it was clear MRI was not for considering whether surgery was required. Even before P had her MRI left knee on 27 December 2013, both Dr J Lam and UCH’s DOT were able to and did advise corrective surgery without need for MRI, and I reiterate the main purpose and focus for the advised corrective surgery was as set out in paragraphs 519 and 524 above rather than, as P suggested, simply for removal of bone fragment (although if the loose body in the lateral gutter did exist it would be removed during the advised surgery as well, but it turned out that there was no such loose body). In short, and I find, P’s MRI left knee that showed bony anatomy and soft tissues (the latter of which were important for the corrective/reconstruction exercise) was more for (a) providing a detailed diagnostic picture of the underlying condition of the left knee so as to guide the choice and scope of the actual surgical procedure (which Dr Lam opined was a usual purpose of MRI – see paragraph 257 above), and (b) identifying the particular soft tissue injury/damage to determine how soon the reconstruction/corrective surgery should be performed (bearing in mind intensive physiotherapy/ rehabilitation was to follow the corrective surgery that was aimed to stabilise the injured left knee). Consequently, the MRI would also serve to confirm the clinicians’ recommendation for surgery (made without need for MRI), and quite probably also to disabuse P’s wishful thinking that reconstruction/corrective surgery could be postponed to a much later time. XX. MRI 527.In my view, P attended Dr J Lam on 24 December 2013, and on that occasion he advised she needed surgery and referred her for MRI. So, according to the summary of attendance records and medical receipts (F/705), P paid $1,510 to the Centre for Orthopaedic Surgery (where Dr J Lam had his clinic) for such consultation. But in my view P did not immediately have her MRI left knee pending the scheduled consultation at UCH’s DOT 3 days later on 27 December 2013. 528.P attended UCH’s DOT at 11:24am on 27 December 2013, and the orthopaedist there also advised reconstruction/corrective surgery. The medical advice from both Dr J Lam and UCH’s DOT was quite consistent with that of the orthopaedist at PYNEH’s DOT who told P that her left patella dislocated because it could not endure and was overwhelmed by intensive training and who also noted tenderness at MPFL (which plainly meant there was need to surgically shore up medial soft tissue support for the left knee), and who advised P to have a private MRI. Given such consistent medical advice, I find P’s indicated hope for operation after graduation was just her wishful thinking (as serious conservative treatment and muscle strengthening could only be carried out after reconstruction/corrective surgery as Dr Wong explained – see paragraphs 179, 188(c), 206, 209, 215 and 524 above, and as Dr J Lam and the doctor at UCH’s DOT as orthopaedists must have known), and on balance I disagree P was medically advised that depending on MRI results “……. there might be opportunities that [she] did not need to do that [ie to have surgery] ……” (see paragraphs 524 and 526 above). 529.Rather, I find on balance that (a) P was advised and knew reconstruction/corrective surgery entailed extensive/lengthy post-surgery rehabilitation/physiotherapy to strengthen the weakened knee-related muscles, especially as PYNEH’s DOT and UCH’s DOT observed VMO reduction and quadriceps wasting (see paragraph 524 above), (b) P “wishes to have operation” (ie she recognised the need for corrective surgery) but wishfully hoped to defer until “after graduation” given (a) above (see paragraph 524 above), and (c) UCH’s DOT urged P to have private MRI to clarify the timing of the needed surgery so that operation decision could be made at the next follow-up on 21 January 2014 (see paragraph 526 above). In my view, had there been no pressing need for reconstruction/corrective surgery, given P’s expressed wish for deferring surgery until after graduation, UCH’s DOT would have arranged for intensive muscle-strengthening physiotherapy and follow-up instead of scheduling another appointment in less than 4 weeks on 21 January 2014 for MRI review and operation decision, and “VMO training” to help balance the knee in the meantime. 530.So in my view, immediately after the consultation at UCH’s DOT on 27 December 2013, P attended Causeway Bay MRI Centre to have MRI left knee done by Dr Yiu on the same day. The summary of attendance records and medical receipts (F/705) showed P paid $3,840 to Causeway Bay MRI Centre on 27 December 2013 for such purpose. Dr Yiu completed the MRI Report on the same day. I find on balance Dr Yiu sent the MRI Report and corresponding MRI films to Dr J Lam being the referral doctor, and Dr J Lam saw P on 31 December 2013 at his clinic to explain the MRI Report, ie MRI results, to her. This was borne out by the summary of attendance records and medical receipts (F/705) that showed that P paid $800 to the Centre for Orthopaedic Surgery (where Dr J Lam had his clinic) on 31 December 2013. In my view, this made sense because Dr J Lam charged a higher sum for a full consultation and a lower sum for just explaining the MRI results. 531.On balance, I have rejected P’s initial claim under cross-examination that (a) when the MRI results were available, she collected the MRI films from Dr Yiu, and Dr Yiu sent the MRI Report directly to Dr J Lam and (b) Dr J Lam was not in Hong Kong between 27 December 2013 and 3 January 2014 so she did not see him until after the 1st Surgery, which was nothing more than P’s hopeless attempt to suggest she had no idea she needed surgery (see paragraphs 514-517 above). 532.Also, P’s such evidence suggested (i) P got the MRI films but not the MRI Report, and (ii) Dr J Lam did not explain the MRI results to her. But it was not easy to understand why Dr J Lam who referred P for MRI (and who had the MRI Report as evident from the copy annexed to his medical report dated 22 February 2016 – see paragraph 511 above) would be so irresponsible as not to tell her the MRI results until after her had the 1st Surgery, and why P who anxiously requested discharge from PYNEH’s DOT in order to have private MRI left knee and who anxiously awaited the MRI results for UCH’s DOT to further consider her case would be so unconcerned as not to chase Dr J Lam for the MRI results and/or for copy of the MRI Report. These matters added to the overall unreliability of P’s account. 533.P was eventually constrained under pressing cross- examination to accept Dr J Lam did explain the MRI results to her, but she did not say how Dr J Lam did so because all she said was that she probably went to the Centre for Orthopaedic Surgery (where Dr J Lam had his clinic) on 31 December 2013 to pay $800 for picking up the MRI films. I reject such assertion when (a) it contradicted her earlier evidence that she collected the MRI films directly from Dr Yiu, and (b) she did not explain why she had to pay Dr J Lam for the MRI films when on 27 December 2013 when she had made direct payment to Causeway Bay MRI Centre for her MRI left knee. In the end, P was constrained to accept under cross- examination that Dr J Lam might have explained the MRI Report to her on/before 31 December 2013 although she did not quite remember. I find on balance that by 31 December 2013 P had the MRI films and the MRI Report from Dr J Lam, who told her the MRI results. I therefore have concerns over the fullness of Dr J Lam’s medical report dated 22 February 2016 that did not disclose (i) his medical advice of surgery to P on 24 December 2013 and (ii) his explanation of the MRI results to P on 31 December 2013. 534.The above findings meant that by the end of December 2013 P knew the medical consequences of her left patella dislocation and self-relocation at the time of the Accident were, in the words of her own Ortho Expert Dr Lam, different from those of the 1st/2nd Episodes in that conservative treatment was no longer viable and reconstruction/ corrective surgery was necessary treatment of choice to stabilise the left patella before intensive physiotherapy could commence (see Dr Wong’s opinion in paragraphs 179, 188(c), 206, 209, 215, 524 and 528 above). 535.In the circumstances, I do not accept P’s account to the Psy Experts recorded in the Psy Report that “…… [upon] assessment at [UCH], [P] was recommended to undergo physiotherapy and conservative treatment to observe her condition before undergoing operation at a later stage ……” I find on balance that UCH’s DOT advised reconstruction/corrective surgery and arranged for P to “keep brace 4/52” (ie for 4 weeks) until the next follow-up on 21 January 2014 for MRI review and operation decision with “VMO training” in the meantime (as explained in paragraphs 288(b), 524 and 529 above). In any event, the 1st physiotherapy session for “VMO training” was on 28 January 2014 which was after P signed the Consent Form on 21 January 2014 agreeing to undergo the 1st Surgery (G/923-927) (see physiotherapy reports dated 19 November 2015, 18 January 2016 and 21 February 2017 by TKOH’s physiotherapy department (C/294-299)). 536.The agreed summary of attendance records and medical receipts (F/705) revealed P attended UCH’s DOT on 21 January and 4 March 2014. In my view, P attended follow-up at UCH’s DOT on 21 January 2014 for MRI review and operation decision, and P agreed to undergo the 1st Surgery and signed the Consent Form (see paragraph 830 below). One would have thought the consultation notes of such relevant follow-up on 21 January 2014 would have been disclosed, but even though P disclosed the consultation notes for the consultation on 27 December 2013 when P had not yet committed to surgery and the pre-operative anaesthetic assessment on 18 March 2014 after the 1st Surgery had been scheduled (G/929), interestingly the consultation notes for the important follow-up on 21 January 2014 was not made available at the trial. XXI. 4TH MC 537.According to the P 1st WStmt, although the orthopaedist at UCH’s DOT originally intended to grant P about 3-4 weeks’ sick leave, she told him she hoped to return to the College to resume her training as soon as possible as she did not wish her training progress to fall behind, so UCH’s DOT issued the 4th MC dated 27 December 2013 that recommended sick leave for 1 day on 27 December 2013 for “left patella dislocation”, and advised avoidance of (a) “heavy physical duty for 4 weeks from the date of this certificate” (ie “light duty for 4 weeks” from 27 December 2013), and (b) “strenuous exercise / marching / foot drilling” (E/439).[107] 538.I do not think much could be made out of P’s decision to have 1 day’s sick leave when she did not have her MRI left knee yet. In the time window pending P (a) having MRI and learning the results to firm up on the timing and scope of the advised surgery, (b) attending further follow-up at UCH’s DOT on 21 January 2014, and (c) attending “VMO training” on 28 January 2014, and with P ambulatory on walking stick, there was really nothing much else that could be done medically in the meantime. But as seen in Part XXII below, despite having received medical advice for surgery on 24 and 27 December 2013, she did not tell Kwan or Chau about the same. It was plain P did not wish for 3-4 weeks of sick leave under the 4th MC (which would be submitted to Kwan and Chau) because it might cause them to raise query about her treatment, prognosis and disability and thereby expose her need for surgery. In my view, this reflected P’s Personality which was a mixture of pride in her abilities and achievements, and insecurity in not wanting others to know about her physical problems and in worrying this would enhance concerns over her lagging PI training. XXII. FURTHER COMMUNICATIONS BETWEEN P AND KWAN 539.According to the Kwan 2nd WStmt, during first few days immediately after the Accident, Kwan kept in contact with P by mobile telephone (as she was on sick leave and not at the College) to understand the condition of her injury and the progress of her recovery. Kwan was on vacation leave from 28 December 2013 to 1 January 2014, but he could be reached via WhatsApp or mobile telephone. He did not recall having communicated with P by either means during his vacation leave. 540.The P 2nd WStmt noted the disclosed WhatsApp messages showed that (a) at 12:25pm on 21 December 2013 P sent a short WhatsApp message to Kwan telling him the doctor would determine whether she would need to extend her sick leave after her follow-up at UCH on 27 December 2013 (see paragraph 505 above), (b) at 5:51pm on 27 December 2013 Kwan sent WhatsApp message to ask P to “[call] me” (E/441), (c) P telephoned and told Kwan the doctor gave her the 4th MC that recommended 1 day’s sick leave on 27 December 2013, avoidance of heavy physical duty for 4 weeks from 27 December 2013, and avoidance of strenuous exercise / marching / foot drilling (see paragraph 537 above), but P agreed that other than such telephone conversation P did not talk to Kwan from 22 December 2013 to 2 January 2014. There was no dispute P next saw Kwan on 2 January 2014 (see Part XXIX below). 541.It was quite clear that even though P told Kwan on 21 December 2013 that her appointment with UCH’s DOT was on 27 December 2013, she did not report to him the outcome of such consultation. So in the late afternoon Kwan sent WhatsApp message to ask her to call him. But all P told Kwan was the recommendations for sick leave and light duty in the 4th MC, but she did not tell him (a) she had consulted Dr J Lam who advised surgery and referred her for MRI left knee, (b) UCH’s DOT also advised reconstruction surgery for her, (b) she had MRI left knee done and MRI results were pending, (d) her next follow-up with UCH’s DOT was on 21 January 2014 (ie even before expiry of the light duty period on 24 January 2014 recommended under the 4th MC), and (e) the follow-up on 21 January 2014 was for MRI review and operation decision. This was in contra-distinction to P’s WhatsApp messages to Kwan and Chau on 20-21 December 2013 by which she kept them updated in detail about the medical advice and the management plan by PYNEH’s DOT. I find on balance P tried to and did hide the fact, which she knew, that she needed surgery and consequent rehabilitation from Kwan and Chau. XXIII. P’s RETURN TO COLLEGE 542.Although the orthopaedist at UCH’s DOT intended to grant her sick leave for 3-4 weeks, she just wanted sick leave for 1 day on 27 December 2013 (ie the 4th MC) (see paragraph 537 above). But Dr J Lam by the 3rd MC granted P sick leave until 3 January 2014, so P could have stayed home to rest until 4 January 2014. Indeed, when P told Kwan her sick leave under the 2nd MC, he advised her to rest at home and not come back to the College during her sick leave period (see paragraph 505 above). 543.But P did not stay at home to rest until 4 January 2014. According to the P 1st WStmt, P returned to the College on 29 December 2013 (Sunday) night to resume PI training the following day (ie 30 December 2013 (Monday)). Under cross-examination, P claimed this was “…… the result of the discussions made with the doctors. Well, if the doctor was of the opinion that I must be on sick leave before I could recover, then he would not have discussed these matters with me ……” In re-examination, P said she was holding a walking stick when she consulted Dr J Lam, and in her discussions with him he said “Well, you can walk slowly with the stick” and “you can go back” to the College. 544.On balance, I do not accept P’s evidence. If Dr J Lam considered P could have returned to the College to report for duty, he would have shortened the sick leave period and recommended light duty. Obviously the sick leave granted by Dr J Lam and the intended sick leave that the UCH’s DOT intended to grant suggested P’s weak and unstable left knee required 3-4 weeks’ sick leave pending surgery decision, which suggested P should not be out and about but should recuperate at home (see paragraph 288 above). But P ignored this and insisted on 1 day’s sick leave on 27 December 2013, and armed with the 4th MC she resumed PI training on 30 December 2013. The P 1st WStmt stated that in view of the recommendation in the 4th MC, P would stand/wait at the side when other PIs had running exercise. This was echoed in P’s account to the Psy Experts in the Psy Jt Report, ie that P “…… resumed her classes at the [College] but was given light duties, ie she did not need to participate in physical activities. She sat on the side while her classmates underwent physical training ……” This, I find, was reasonable accommodation by HKPF for P given that Kwan and Chau did not know the matters in paragraph 541(a)-(e) above, and also did not know P had sick leave until 3 January 2014 (see Part XXIV below) and/or UCH’s DOT intended to grant P sick leave for 3-4 weeks. 545.Kwan was still on leave when P reported back for PI training on 30 December 2013. According to the Kwan 1st/2nd WStmts, P only attended classroom lectures and was an observer in other kinds of training that required substantial physical demand (eg foot drill exercise and other physical training) because her treating doctor recommended her for light duty. As accommodation for P’s injury/condition, Kwan had given prior notice of her situation to other instructors involved in her PI training, and had made known to them she was not required to take part in training that required substantial physical demand. In my view, returning for duty on walking stick might put P’s weak and unstable left knee at risk of further patella instability events. Dr J Lam in his medical report dated 22 February 2016 stated his examination showed there was “…… sign of patella instability ……” Further, as Kwan explained, avoidance of strenuous physical training was not a complete answer. P still had go to from one place/building to another that were spread over a large campus at the Premises, and as an observer she still had to follow other PIs from one location to another for practical exercises. Such activities when P ambulated on walking stick with limited balance and walking tolerance was quite risky for her left knee in its injured state, especially when the orthopaedist at PYNEH’s DOT warned that the restraining ligament would become more lax or loose (see paragraphs 482 and 488 above) and Dr J Lam’s examination revealed sign of patella instability (see paragraph 524 above). Also, there was no suggestion that P ceased to be out and about after she resigned on 3 January 2014. In my view, P’s injured left knee was prone for further patella instability event, which was probably what happened to result in oesteochondral injury and bony fragment on the medial side of the patella (see paragraph 288 above). 546.More importantly, I find that by this time P well knew the medical pointers were largely towards needed surgery to be followed by extensive rehabilitation that made passing out within time rather unlikely. In my view, this awareness and the yet unknown outcome of the advised surgery aggravated P’s existing worries, frustration and pessimism over her weaknesses in PI training, and this greatly exercised and troubled P during this period (see paragraph 520 above). In keeping with P’s Personality, while P outwardly still clung to her dream of passing out, she was inwardly despondent and pessimistic that she might not pass out in time or at all. Nevertheless, her pride, insecurity and unhappiness led her to dissemble by hiding the need for surgery from her squad mates and supervisors, and brushing aside messages and well wishes from her squad mates who asked after her condition. XXIV. 3rd MC 547.According to the P 1st WStmt, P gave the 2nd, 3rd and 4th MCs to her squad prefect,[108] who was responsible for organising daily affairs of the squad and reporting to Kwan, and who told P she would hand in those MCs to Kwan on her behalf, so P believed the squad prefect would responsibly do so. But 1-2 days later, the then squad prefect Lori Tsoi told her Kwan would only accept for record the 2nd and 4th MCs issued by public hospitals, and she returned the 3rd MC to P, which return was not explained. 548.Both Kwan and Chau said they had not seen the 3rd MC issued by Dr J Lam, and Kwan denied the 3rd MC was returned to P at his direction. Mr Sakhrani complained that Kwan’s/Chau’s statement evidence did not explain how the hard copy MCs were dealt with. I see nothing in this complaint when the SoC only pleaded that the 2nd and 4th MCs were submitted to the College without any averment that the 3rd MC was also submitted. Since D did not dispute the College received the 2nd and 4th MCs, there was no need for Kwan and Chau to canvass how hard copy MCs were dealt with in their statement evidence. In any event, Kwan gave evidence that he did not remember precisely how P’s MCs were dealt with, but he agreed the squad prefect would have shown the MCs to him, and later Chau as the CI would have sight of the MCs. 549.According to the Kwan 2nd Wstmt, Kwan did not on 29 December 2013 or thereafter instruct any PI that MCs issued by private doctors were unacceptable. He explained that his duty was only to verify whether the MCs were valid and did support P’s sick leave, and it was not his concern whether the MCs were issued by private doctors or not. Under cross-examination, Kwan said he received the 1st MC via WhatsApp, and after he resumed duty on 2 January 2014 he only saw 2 further MCs, ie the 2nd and 4th MCs, which were issued by public hospitals. The 1st and 2nd MCs granted P sick leave for 20-28 December 2013 (so, according to Kwan, P ought to stay and rest at home without need to return to the College for PI training whether on light duty or otherwise), and the 4th MC granted sick leave for 27 December 2013 and recommended light duty for 4 weeks starting from that day (so, according to Kwan, P should avoid heavy physical duty until 24 January 2014). 550.Under cross-examination, Chau could not remember whether P returned to the College on 29 December 2013 (when Chau was still on vacation leave) to submit further MCs. Whilst Chau had impression of the 1st, 2nd and 4th MCs issued by public hospitals, he had no deep impression of the 3rd MC issued by a private doctor that granted P sick leave from 24 December 2013 to 3 January 2014. In re-examination, Chau said he prepared the OSH Accident Report Form on 14 January 2014 (E/468-470), and in the description of the Accident in Part 1 of such form, it was stated that P was discharged (from PYNEH) on 21 December 2013 with sick leave on 20-28 December 2013. Since sick leave granted by Dr J Lam under the 3rd MC was up to 3 January 2014, Chau said it was likely he had not seen the 3rd MC otherwise he would have put down in the OSH Accident Report Form that P’s sick leave was up to 3 January 2014 and not 28 December 2013. 551.I find on balance that P lied about having submitted the 3rd MC to Kwan through the squad prefect, and consequently I also find the 3rd MC could not have been returned to her:
552.But under cross-examination, P claimed that after her return to the College, she probably told Kwan (but not Chau whom she did not meet) there was possibility that she would require surgery. There was no record of any WhatsApp message to such effect after she returned to College on 29 December 2013 because the next WhatsApp message after Kwan’s message on 27 December 2013 to P asking her to call him was on 1 January 2014 (see Part XXVIII below), which did not mention anything about surgery. The P 1st/2nd WStmts also did not mention P told Kwan about possible surgery. 553.Further, the 3/1/14 Stmt stated “…… [P] was admitted at [PYNEH] for one day and finally treated and discharged with 9 days’ sick leave. [P] will attend medical treatment at UCH and on a way to recovery. [P] was diagnosed to suffer from left knee injury ……” (my emphasis) without mention of any need for surgery. P claimed the 3/1/14 Stmt was prepared by Kwan and she signed the same under duress and undue influence (see paragraph 8(e) above). Putting aside the issue of alleged duress and undue influence for the moment, Kwan did not dispute he prepared the 3/1/14 Stmt, and I find on balance he did so on the basis of inter alia the 1st, 2nd and 4th MCs that were submitted to the College. Indeed, even when P had opportunity in 2017 to submit her amended version of the 3/1/14 Stmt to HKPF (see paragraphs 458-460 above), she only deleted the words “and on a way to recovery” without any mention that she was advised to have surgery, that she told Kwan of possible need for surgery and/or that she did try to hand in the 3rd MC to the College so she had more than 9 days’ sick leave. XXV. HQO12/11 554.According to the Chan WStmt, the relevant Headquarters Order about HIOs at the time of P’s employment was HQO12/11 which provided inter alia as follows (E/664-701):
555.Kwan knew there was a process by which officers who had been injured or who were impaired could be indexed as HIOs, which process was said to originate from HQO12/11 for police use only. Although Kwan had a rough idea of HQO12/11 as a guideline for dealing with HIOs, he was not very familiar with it. 556.Paragraph 21 of HQO12/11 referred to formation commanders (“FCs”). Kwan explained that when HQO12/11 designated FCs, it did so in the context of the usual structure of a police station which was different from the College. In a police station, the FC was normally a chief superintendent. The FC at the College was not its director or its school head at the rank of senior superintendent (ie Senior Superintendent (Foundation Training) or SSP FT) but Tan who was a SP, the second-in-command at the College and the division head of RTDiv responsible for all matters relating to PC trainees and PIs. Indeed, the OSH Accident Report Form dated 14 January 2014 completed by Chau gave Tan as “Formation Commander at SP Level” (E/468). Chau agreed under cross-examination that OSH matters at the College were overseen by an officer at the rank of SP, ie Tan, so he reported to Tan on OSH matters. 557.As for “TSRO” referred to in paragraph 21 of HQO12/11, Kwan said a TSRO was a training and staff relation officer (訓練職員關係主任), and whilst there was such post in a police station outside the College, there was no such post at the College. He said the College had a CIP (Support). Likewise, Chan said in re-examination that when he was a CIP at the College, there was no officer who held the post of TSRO, but there was a CIP in the PI training unit who was responsible for administrative work, but he did not know if there was such post before he joined the College. In my view, the CIP in the PI training unit who was responsible for administrative work mentioned by Chan was the same as the CIP (Support) mentioned by Kwan, but neither of them said such CIP would perform the function of a TSRO. 558.For the equivalent of TSRO at the College, Kwan said that vis-à-vis “…… the students, [Kwan] believe it would be the [CI] ……” But Chan thought otherwise. Whilst Chan agreed that paragraph 21 of HQO12/11 provided “[many] of these functions of [the FCs] can be performed by TSROs or equivalent”, and a CIP would be appointed to handle the functions of a TSRO if the relevant formation did not have such post, he said CIs and musketry instructors at the College were not “at this level” (ie equivalent to TSROs) because the main duty of CIs and other instructors was training/teaching and although they would also see to the welfare of the trainees, they did not perform the function of TSROs which was normally regarded as administrative work. Such distinction, Chan explained, turned not on police ranking but the different roles of CIs/ instructors and TSROs. 559.As to whether or not an injured police officer would be indexed as a HIO under HQO12/11, Chau explained that (a) an officer would not necessarily be so indexed if the injury was a short-term one and/or there was prospect/chance of recovery (see paragraph 16 of the HQO12/11 and paragraph below), (b) it was a necessary and important requirement to convene a medical board to be chaired by a doctor assigned by the Health Department to assess the extent of the injured officer’s injury and to see the type of work he could or could not perform. Sick leave was only 1 of the factors to be considered, and depending on the nature of the subject injury, a medical board might be convened when sick leave was short (eg if an officer had a severe injury requiring limb amputation, there would be no need to wait for sick leave to accumulate before convening a medical board), or when sick leave was lengthy (eg where the impact of the injury on work capacity was not so obvious, the length of sick leave granted to the injured officer might be an important factor in deciding whether or not to convene a medical board). 560.In my view, Chau’s above evidence was consistent with the following provisions of HQO12/11:
561.Turning to P’s case, according to the Chan WStmt, on the issue of whether she would be classified as a HIO so that assistance would be given to her by HKPF in providing suitable duties for her and allowing her to stay with HKPF, Chan thought it irrelevant that P was never indexed as a HIO (which Kwan and Chau said they knew) or that she never applied to be classified as a HIO. In any event, since this was never invoked for P, it was difficult for Chan to state whether she would have been classified as a HIO if there had been such an application. But if P had not resigned and had been indexed as a HIO, assistance would have been given to her to stay with HKPF (eg arranging suitable duties for her). 562.Chan explained that when an injured officer was indexed as a HIO, (a) his situation would be monitored by the Personnel Wing of HKPF’s headquarters, and (b) if his deployment involving inter-regional arrangements, such decision would be made by HKPF headquarters. But (a)-(b) above did not apply to injured officers not indexed as HIOs, and their deployment could be dealt with by the FC. Chan’s evidence was also borne out by the following provisions of HQO12/11:
563.Turning to the matter of “reasonable accommodation” as referred to in paragraphs 5-9 of HQO12/11, Kwan agreed Annex C thereto set out some examples of the means HKPF had at its disposal to reasonably accommodate officers who were health impaired. I accept these examples were not exhaustive as expressly made clear in Annex C (see paragraph 554 above). Kwan said his understanding accorded with paragraph 10 of HQO12/11 which provided that officers requiring reasonable accommodation due to health reasons had “a responsibility to provide sufficient information and advice regarding his disability or illness, to enable a proper consideration to be made of any accommodation required”. Kwan said likewise the Standard Procedures also aimed to improve the welfare of injured officers and to provide reasonable accommodation that could also meet the requirements in HQO12/11. 564.Chan explained under cross-examination that (a) if a PI was injured during his time at the College and was formally indexed as a HIO, he would necessarily be transferred to the care of the relevant officer handling HIO matters, but (b) if the injured PI was not indexed as a HIO, he would be taken care of by senior officers within his/her squad who would make suitable arrangements to accommodate his/her injury and needs, so in principle there was no difference between him/her and an indexed HIO, but the exact arrangements to be made would depend on the circumstances and also the needs of the injured PI. Indeed, paragraph 3 of HQO12/11 provided that “[there] may also be officers who have not been classified as a HIO may be recovering from an illness or injury (eg a broken arm), and be required to undertake a period of rehabilitation. [FCs] of the officers concerned may make reference to guidelines and arrangements in paragraphs 5 to 9 below to provide “reasonable accommodation” on temporary basis to such officers” (my emphasis). 565.The provisions in paragraph 5-9 of HQO12/11 (see paragraph 554 above) concerned policy considerations for substantive provision of “reasonable accommodation” to the HIO. Thus, the responsible officers in dealing with an injured officer not indexed as a HIO would be guided by the principles for and the examples of “reasonable accommodation” set out in paragraphs 5-9 and Annex C of HQO12/11. However, paragraph 3 of HQO12/11 did not provide that in dealing with officers not indexed as HIOs but who may be recovering from short-term illness or injury there was need to comply with paragraph 32 of HQO12/11 that concerned sub-standard performers, and/or with paragraph 47 of HQO12/11 that applied expressly to HIO cases (ie that “[proper] records must be kept of the nature of accommodation or MPA [Managed Posting Arrangement], which has been provided to a HIO ……” (my emphasis)). 566.In my view, this was quite understandable. As Chau explained, if the injury was a short-term one and/or there was prospect/ chance of recovery, the injured officer would not be indexed as a HIO under HQO12/11. Such type of injuries (or illnesses) would cover a broad range of accommodation, eg (a) a police officer might be relieved from patrol duties and be assigned to a desk job for two months pending recovery from an ankle fracture, (b) a police officer who suffered laceration injury on the forehead might be accommodated with an indoors posting until recovery to obviate the need to wear a police hat, or (c) a police officer with a medical illness that required several injections at the hospital in the course of a week could be accommodated by adjusting his shift duties for that week. Such reasonable short-term accommodation happened quite often and was arranged by supervisors on the spot because such straightforward accommodation would not have long-term effect on manpower deployment and operational needs of the relevant police units, the subject police officer and/or HKPF generally. In my view, it would have been unreasonably onerous to require supervisors to make and “keep” “proper records” of all these “reasonable accommodations”. In my view, irrespective whether or not any supervisor might wish to keep their own record, there was no force-wide requirement for “proper records” to be “kept” of short-term reasonable accommodation provided to officers recovering from short-term injury or illness which had prospect/chance of recovery (ie those who were not indexed as HIOs). 567.In my view, the above conclusion was underlined by 3 matters:
568.In the circumstances, whilst I accept there was discretion under HQO12/11 for the relevant squad to tailor-make suitable accommodation for an injured officer who was not indexed as a HIO, I reject Mr Sakhrani’s submissions that keeping of records was a mandated requirement which Kwan, Chau and Tan failed to implement or properly implement for P, which in turn suggested that HKPF failed to properly guide their officers and employees. 569.The P 1st WStmt complained that despite paragraphs 5-6 of HQO12/11, Chau/Kwan/Tan never adopted inter alia the following measures to understand the health condition of P’s left knee, the necessary treatment therefor and the progress of recovery, and the P 2nd WStmt further complained that Kwan, Chau and Tan never discussed with P the options of Postponement and Re-training:
I have found Kwan actually liaised with P and the orthopaedist at PYNEH’s DOT about P’s injury/condition, but P did not reveal the details of the medical advice about surgery, the MRI left knee she had and the 3rd MC that was issued to her, and the orthopedist at PYNEH’s DOT citing medical confidentiality also did not say much to Kwan about P’s prognosis. But since paragraphs 5-9 of HQO11/12 were applicable to injured officers who were not indexed as HIOs, the duty was on the injured officer to “provide sufficient information and advice regarding his disability or illness, to enable a proper consideration to be made of any accommodation required” (see paragraph 10 of HQO12/11 and paragraph 554 above). I see no basis for HKPF or P’s supervisors to require a medical report or independent medical examination from P given inter alia personal/medical confidentiality, and P did not identify any such basis. Further, I have found that Kwan had alerted P to the possibilities of Postponement and Re-training, and it would be for her to consider whether she would contemplate such accommodation, and if so, to provide the relevant information and advice about her condition “to enable a proper consideration to be made of any accommodation request”. XXVI. OSH 570.According to the Chau 2nd WStmt, HKPF has established procedures and guidelines on matters relating to OSH, including the Force Procedure Manual (E/589-602), Occupational Safety and Health - Local Safety Risk Management Protocol (E/527-560)[110] and SSPFTSO10-08. Further, as far as Kwan knew, Tan was probably a DSRM. This was confirmed in the 26/4/19 Letter by DoJ to P’s solicitors (E/479) that stated Tan was the DRSM at the material time. 571.Kwan said under cross-examination that each training item had its own risk management officer. Further, it was said that regular risk assessments were conducted on various aspects of PI training, including the Walkthrough Safety Risk Assessments on rural activities (E/561), on fitness and physical training (E/562-563) and foot drill training (E/564) being core activities in PI training. It was said these Walkthrough Safety Risk Assessments (a) provided task and hazard information so PI trainers would know what to look out for, and (b) were subject to regular reviews by responsible officers overseeing the OSH aspects of PI training. However, I am unable to see the relevance of these Walkthrough Safety Risk Assessments when P’s essential complaint against D was in respect of the allegedly defective static condition of the Staircase and its environs rather than activities in the course of PI training. 572.Kwan understood from HKPF’s records that a cleaning worker was responsible for sweeping/cleaning the Staircase on daily basis. But D did not produce any records of the cleaning schedule or records of the alleged monthly formal hazard inspections. 573.In the Chau 2nd WStmt, Chau said he understood the edges of all steps of the Staircase were painted in yellow in 2018 (ie years after the Accident), which he said was to further enhance occupational safety for users of the Staircase after review of OSH matters. XXVII. LIABILITY FOR ACCIDENT 574.There was no dispute P suffered left patella dislocation and spontaneous relocation as she walked down the Staircase in the early morning of 20 December 2013. The key questions on liability in relation to the Accident were set out in paragraph 142(a) above. (a) Court’s approach 575.I have found P had recurrent left patella dislocation (ie the 1st/2nd Episodes) and opted for conservative rather than surgical treatment, so there was a higher chance of further left patella dislocation. I have also found that after the 2nd Episode P had P’s Knee Condition that was symptomatic with on-and-off pain, muscle wasting, weakened support and patella instability, which status was much less rosy than what P would have this court believe. 576.Thus, the court would have to consider and determine (a) how the Accident happened, and (b) what caused the Accident. In my view, these are important anterior questions. The findings on (a)-(b) above will clarify (i) whether the Accident and injury were solely due to the pre-existing P’s Knee Condition, or (ii) whether it was due to or contributed to by the static condition of the workplace (as Mr Sakhrani contended) or due to P’s own carelessness (as Ms Chao contended). For (i) above, P would fail to establish liability on the part of D, and there would be no need to consider the issues of (1) D’s duty of care and/or statutory/ contractual duties owed to P, (2) D’s breach of such duties (if any) and/or (3) P’s own carelessness or contributory negligence (if any). For (ii) above, the court has to go on to consider (1)-(3) above to determine whether D would be liable for the Accident and injury. 577.Before I turn to the matters in paragraph 576(a)-(b) above, I shall briefly give a broad overview on the matters in paragraph 576(1)-(3) above to give a bird’s eye of the potential scope of issues on the question of liability. 578.On those matters, I shall first focus on the issue of negligence. After all, D’s duty under the law of negligence and his statutory duties, say under OSHO, were essentially co-extensive[111] even though statutory duty under section 6 of OSHO is not absolute and D was only obliged to provide a safe workplace by reference to risks that were reasonably foreseeable according to knowledge available at the material time of the Accident or injury.[112] 579.Duty of care Assuming the Accident was traumatic and the injury was not due to or not solely due to the pre-existing P’s Knee Condition, the relevant duty of care on the part of HKPF as employer would concern the static condition of the work place, or as Mr Sakhrani put it, the lack of visibility of the Staircase steps in the early hours of the morning on 20 December 2013. Ultimately, the question was whether it was reasonably safe for PIs to use (ie descend) the Staircase at the material time to go from WBB to the Road on their way to the Parade Ground / Blk J in the sense it was adequately lit/visible. Such duty of care would have to be viewed through the prism of what D knew or reasonably ought to have known about the usage and time of such usage of the Staircase, the safety of the Staircase and P’s own condition. 580.Mr Sahkrani and Ms Chao had little dispute over the general legal principles on such duty of care. Mr Sakhrani referred me to the recent reiteration of such general legal principles by Au-Yeung J in Pak Sai Ming v J V Fitness Limited,[113] which I rely on without repeating them here. I also accept the duty to ensure that the Staircase was reasonably and adequately lit/visible for PIs to use was a non-delegable one, especially as D placed importance on such matter as evident from (a) D’s pleas in his Defence set out in paragraph 11(a)-(d) above, and (b) Chan’s, Kwan’s and Chau’s evidence in relation to such pleas. 581.In my view, it also could not be disputed that P as user of the Staircase would have to take reasonable care of her own safety, taking into account the condition of the Staircase and its environs which she knew or ought to have been aware, and also her understanding of her personal condition at the time vis-à-vis use of the Staircase, including her fitness at the time of the Accident and her underlying health condition. 582.Breach of duty P alleged the Site (ie the 8th/9th step on the Staircase) was not sufficiently illuminated at the time of the Accident (whether due to long reach and dimness of static artificial lighting or lack of hand-held torch), but D claimed that lighting was sufficient. P also complained that the Staircase and its steps were not made or kept safe for the purpose for which P was expected to use it, which D denied. This would bring into question the layout of the Staircase as well as risk assessment and inspections of the Staircase. On these matters, one had to consider the totality of the relevant evidence and not merely assume from regular use of the Staircase by PIs for access between WBB and the Road for proceeding to the Parade Ground / Blk J that the Staircase was therefore reasonably safe and/or sufficiently illuminated. This was but 1 factor in all the circumstances. 583.Contributory negligence The burden was on D to prove that P, by her own negligence, contributed to the damage she suffered. DHCJ Paul Lam SC in Lee Yam Kan v Ng Pui Kuen trading as Wing Sing Scaffolding Engineering & anor[114] held that “…… [under] the common law, the word “negligence” is used in the same sense as careless conduct rather than in its sense of breach of duty; it connotes a failure by the plaintiff to use reasonable care for his safety (Charlesworth & Percy on Negligence (13th edn, 2014) at p 242) ……” Mr Sakhrani relied on the oft-quoted observations by Earl Jowitt in the House of Lords in General Cleaning Contractors Ltd v Christmas[115] that was more recently reiterated by DHCJ B Chu (as she then was) in Mohammad Amjad v John M Pickavant & Co:[116]
584.Thus, the essential question was whether P with reasonable understanding of her own condition as well as the Staircase and its environs at the material time failed to take reasonable care of her own safety. Ms Chao submitted P should have descended the Staircase by holding onto the RHS Handrail, but Mr Sakhrani submitted that such suggestion was an unreasonable counsel of perfection, and in any event it was not shown that holding onto such handrail would have prevented the Accident/injury. 585.Having given the above broad overview, I now return to the important anterior questions of how the Accident happened and what caused the Accident. (b) How did Accident happen? 586.Although there were 3 PIs walking ahead of P along the Staircase when the Accident happened, they had their backs to P, so there were no eyewitnesses. 587.I have no doubt P was tired, fatigued and somewhat sleepy when she went down the Staircase in the early morning on 20 December 2013. After all, she had additional/extra physical training for half hour just before dinner the night before and studied until 2:00am, thus catching about 3-4 hours of sleep. In any event, P was generally tired and fatigued (including in the early morning of 20 December 2013). Indeed, the Psy Jt Report noted P told the Psy Experts that “…… [she] was often tired and sleepy during the day. If she dozed off in class in the day time, she would be punished to do running ……” 588.I find on balance all P knew about the Accident was (a) she was walking down the Staircase when she felt her left knee give way (ie patella dislocation), (b) the dislocated left patella relocated spontaneously, (c) P then felt great pain and grabbed/pulled the RHS Handrail, and (d) P slided down to sit on the Staircase without falling down to land on her buttocks. 589.As P said, it all happened very quickly. She claimed she could not recall details of the sequence of motions during the Accident. Of the 3 Scenarios, (a) if P had missed a step or stepped into the void/air in front of the steps, it would mean P expected her forward foot to land on a step but unexpectedly it did not, so there should be an immediate and obvious feeling of falling and/or losing balance, or (b) if P stepped on an unknown object or on the edge of a step, there should not have any accident (unless it was atraumatic spontaneous left patella dislocation due to the pre-existing P’s Knee Condition) if balance was maintained since the forward foot or part of it was in direct contact with and hence supported by the step/ground, but an accident would occur if there was loss of balance or even a fall, eg when the unknown object underfoot caused the foot to slip or slide on the step or even out of the step, or upon forward motion of the body in descending the staircase the part of the foot on the edge of the step was insufficient to maintain balance, so again there would also be a sense of losing balance and/or falling. 590.In my view, even if everything happened rather quickly and even if P was not quite sure which of the 3 Scenarios led to Accident, P on her own case should/would have an initial sense or feeling of losing balance or falling before she would feel her left knee give way (ie dislocate). P in fact pleaded this sequence of motions in the SoC which averred that when descending the Staircase, she stepped on an unknown object, on the edge of stairs or in the void, and “[as] a result, she lost her balance and fell” (see paragraph 6(c)-(d) above). This was echoed in (a) the Psy Jt Repot that recorded P’s account to the Psy Experts at the Psy Exam that “…… [P] lost her balance and fell ……” (my emphasis), but she did not know if it was 1 of the 3 Scenarios (see paragraph 462 above), and (b) the P 1st WStmt that claimed it was too dark for her to see what she stepped on that caused her to lose balance and fall (see paragraph 464 above). 591.This sequence of motions (ie a sense of losing balance or falling while descending the Staircase and then feeling the left knee give way) was not found in the early treatment records. Very soon after the Accident, both the triage nurse and the doctor at RTSKH’s AED recorded P’s injury occurred whilst walking downstairs (see paragraphs 471-472 above), and I have found this was P’s account to them without the embellishment of details as to the 3 Scenarios and the darkness with dim lighting (see paragraph 474 above). Public hospital AED and DOT doctors (who by nature of their specialisation that concerned physical injuries and who had to fill out medical record forms to give their impression of the nature of the physical injury) would have been astute to take account of loss of balance or any slip and fall (see MNR of the orthopaedist at TKOH’s DOT for the consultation on 31 July 2014 (G/912) that recorded P’s medical history of “S/F [slip and fall] downstairs 8/2103, landed on right side of body ……” – see paragraphs 317 and 474 above), but the impression of the doctor at RTSKH’s AED in respect of P’s account to him of the Accident was that it was non-traumatic (see paragraph 472 above). Dr Lam complained under cross-examination that RTSKH’s AED had not given any qualitative description of the manner of walking downstairs, so it was unclear to him whether or not it was at a fast pace. But in my view, the significance of such record was that the dislocation happened whilst walking downstairs and not upon the obvious sense of losing balance, slipping and falling (allegedly precipitated by 1 of the 3 Scenarios) that preceded the left knee giving way. 592.Later on the same day, the orthopaedist at PYNEH’s DOT who took a more detailed medical history from P and did a more thorough physical examination of P also recorded P’s left knee pain and “give way while going down stairs” with spontaneous relocation of the dislocated left patella (see paragraph 478 above). Again, I have rejected P’s evidence that she gave a more detailed account to such orthopaedist (see paragraphs 480 above), and the impression of such orthopaedist as he informed P (who in turn informed Kwan and Chau by WhatsApp messages) was that the Accident/injury were mainly related to the pre-existing P’s Knee Condition, and that she had another dislocation because her left patella could not endure and was overwhelmed by intensive training (see paragraphs 482 and 488 above). Had P mentioned the 3 Scenarios, loss of balance before her left knee gave way, and the dark environment of the Site, the orthopaedist at PYNEH’s DOT would at the very least have considered differential diagnosis of a traumatic Accident causing acute injury following slip and fall and/or loss of balance. There was no such differential diagnosis/account in PYNEH’s MNR. 593.Although Dr J Lam’s medical report dated 22 February 2016 only mentioned P dislocated her left patella “while training at the [College]” with spontaneous relocation, and did not set out P’s account to him as to how the Accident happened, it was at least consistent with the record made by the treating doctors on the very day of the Accident that no particular trauma was identified (see paragraph 511 above). Had P volunteered to Dr J Lam the same details she allegedly told the doctors at RTSKH’s AED and PYNEH’s AED (but which I have rejected – see paragraphs 591-592 above), there was little reason why Dr J Lam, upon clinical correlation to his sighting of the loose body in the lateral gutter from the x-rays,[117] would not have further explored the mechanism of the Accident upon such injury and/or documented this in his medical report, especially when he advised P to have surgery. This did not reflect well on either P’s claim that she had given details of the Accident to Dr J Lam (which I have rejected – see paragraph 512 above), or Dr Lam’s opinion of severe trauma by relying on the presence of loose body in the lateral gutter (which I disagree in discussions below – see footnote 117 above and paragraphs 610-614 below). If it were suggested that Dr J Lam deferred consideration of these matters until clarification by MRI, then it served to highlight the usefulness of MRI as a diagnostic imaging tool. 594.On 27 December 2013, it was recorded in the consultation notes of UCT’s DOT that P had “…… 3rd dislocation 20/12/2013 while running NO fall or contusion ……” (see paragraph 521 above). I have found “running” was an inadvertent error because this was corrected in the subsequent medical reports by UCH’s DOT in 2015-2017 that consistently stated P had her left patella dislocation “while walking downstairs in the [College]” (see paragraph 523 above). I bear in mind UCH’s DOT was most familiar with P’s medical history of P’s Knee Condition as a result of the traumatic 1st Episode and the atraumatic 2nd Episode, and they knew PYNEH’s DOT deferred to them for P’s treatment plan. Had P given details about the 3 Scenarios and the dark environment at the time of the Accident as alleged (which I have rejected – see paragraph 523 above), there was no reason why, with her history of P’s Knee Condition that required long-term follow-ups, the mechanism of the Accident was not recorded in MNR and/or in the medical reports at least simply but accurately, eg losing balance and feeling left patella give way, but no actual fall/contusion. 595.Quite clearly, the early MNR and reports only recorded left patella dislocation and spontaneous relocation on 20 December 2013 while P was walking down the Staircase and felt her knee gave way. P confirmed under cross-examination that she remembered the Accident (although everything happened quickly and she felt painful) when she was at RTSKH’s AED and PYNEH’s DOT. I find on balance this was what happened. I further find that it was the ensuing pain from such dislocation and relocation that caused her to lose balance and to grab the RHS Handrail before she slided down to sit on the steps. 596.P’s account of the Accident metamorphosed after commencement of the present action on 13 December 2016. The Ortho 1st Jt Report noted P told the Ortho Experts at the Ortho Exam (19 October 2017) that her foot missed a step (without express mention of the 3 Scenarios) and that she felt severe pain in her left knee (see paragraph 457 above), ie she missed a step first and then lost her balance and fell (albeit not all the way to the ground) before she felt dislocation of her left patella (ie her left knee gave way). P then tried to dissemble under cross-examination by saying that according to her understanding, missing a step would be the same as stepping in the air/void in front of the steps. But this did not really explain why she claimed under cross-examination to have told the treating doctors that she might have stepped on some unknown object or stepped in the edge of a step, ie there was object/step underfoot and not air/void. When further pressed, P then said “…… I remember that at that time what I said was I stepped on the air, so I did not know what I had step on …… I remember that at that time I said I did not know what I had stepped on ……” I find P’s evidence unreliable and I reject it. 597.Then about 3 months after the Ortho Exam, P pleaded in the SoC on 30 January 2018 (verified by her own statement of truth) that when descending the Staircase, “[P] stepped on an unknown object, the edge of the stairs or the void” and as a result she lost her balance and fell injuring her knee (see paragraph 461 above). This was followed by her account to the Psy Experts at the Psy Exam a few months later on 31 May 2018 as recorded in the Psy Jt Report that “[P] lost her balance and fell. [P] did know how or why she fell. She does not know if she had stepped on something or if she had slipped on the edge of the stairs or if she “stepped on air” …… As [P] fell, she …… instinctively held on to a handrail. She did not fall on her buttocks ……” (see paragraph 462 above). P gave a similar account in the P 1st WStmt a few months later on 24 August 2018 (see paragraphs 463-464 above). 598.Then there was some mention of twisting of the knee:
599.In my view, the various allegations of missing a step and/or the 3 Scenarios in P’s post-litigation accounts were nothing more than afterthought embellishments to exaggerate the Accident for the purpose of the claim. Such evolution from P’s straightforward account to her treating nurse/doctors in the aftermath of the Accident of the left knee giving way while walking downstairs spoke ill of P’s veracity/reliability. I find on balance that P had left patella dislocation and self-relocation during ordinary activity of walking down the Staircase, and as a result she lost balance and fell (which fall was arrested by P grabbing the RHS Handrail). In my view, this was consistent with P having higher chance of recurrence of left patella dislocation (given her bony structural defects and her weakened soft tissue support structure for her left knee as well as her choice of conservative treatment resulting in P’s Knee Condition after the 2nd Episode), and her left knee being in flexed state when descending the Staircase. Further, in coming to my findings on how the Accident happened, I have taken into account the opinion of the Ortho Experts on the causation of the Accident as discussed in Part XXVII(c) below. Suffice to state here I find that on 20 December 2013 P had spontaneous recurrent left patella dislocation as a result of the pre-existing P’s Knee Condition unrelated to the condition of the Staircase and its surrounding environs. I also find on balance that after the Accident P told the treating nurse/doctors that she had another left patella dislocation and spontaneous self-relocation while walking down the Staircase.[118] (c) Causation of Accident 600.Ms Chao submitted that the Accident and P’s injury was caused by the pre-existing P’s Knee Condition, and her left patella dislocated and relocated due to inter alia her almost flattened femoral sulcus as well as wasting/laxity of the supporting muscles while she was doing an ordinary/everyday task of descending the Staircase without any traumatic event, and it not due to the condition, lighting and/or visibility of the Staircase at the material time. Mr Sakhrani submitted this could not be supported because (a) P did not have any further left patella dislocation or was physically unsound after the 2nd Episode and before the Accident, (b) P had been very physically active after the 2nd Episode such that she must have fully recovered from the 2nd Episode of left patella dislocation, and (c) P was able to pass the Physical Fitness Test before becoming a PI and was subject to rigorous physical training as a PI such that Dr Lam opined P likely enjoyed rather painless and satisfactory function in her left knee before the Accident. Such submissions would now have to viewed through the prism of my above findings of fact as to P’s Knee Condition which were largely against Mr Sakhrani’s contentions. 601.Trauma or no trauma Turning to the expert medical evidence, Dr Wong opined that P had “high chance of recurrent dislocation of left patella again in future even with any trauma”, but Dr Lam opined that P who had recurrent patella dislocations would only have high chance of future patella dislocation if there was some severe trauma. 602.Dr Wong explained in the 2nd Ortho Jt Report and under cross-examination that with a normal V-shaped sulcus, no underlying structural defect and no marked muscle wasting, one would have expected patella dislocation to be trauma-related and would not have expected dislocation to happen during ordinary activities such as walking on the street, walking on staircase, carrying groceries whilst descending staircase or getting up from squat position. If dislocation was trauma-related (eg blow to the knee when playing rugby), it was caused by force acting on the patella, and one would not suspect structural defect. But medical literature stated that many first-time or primary patella dislocations were associated with underlying structural problems, and dislocation during ordinary activity might suggest significant structural defect. Dr Wong reminded that the 2nd Episode was already an atraumatic recurrent patella dislocation. 603.Dr Lam opined under cross-examination that the chance of a normal person to suffer patella dislocation from a fall or other trauma was not high, and it would have to be a specific kind of “more severe” trauma (eg falling down staircase or activity with twisting motion) for the patella to dislocate, so Dr Lam would not expect the patella to give way and dislocate during ordinary activities like running, walking and using staircase. For a person with recurrent patella dislocation but without corrective surgery, Dr Lam opined that if the rehabilitation was good, he/she would not be much different from a normal person, and the patella would not dislocate during normal activities as aforesaid, but if rehabilitation was suboptimal, then there would be a propensity (and it would be easier) for such person “to dislocate the knee naturally, especially when the [person], say, twisted her knee or in some circumstances it’s a direct hit on the inner side of the kneecap, but that was …… probably less common than the twisting of the knee. So without a twisting of the knee, without certain force …… during the twisting, the knee will not dislocate by itself ……” Dr Lam added even for a person with a flattened femoral sulcus, there would not be patella dislocation simply by “normal walking in a straight line without a twist …… because the muscle will balance itself, the flatter the angle, of course, then mild twisting is enough to cause the dislocation ……” (my emphasis) 604.Dr Lam in the Ortho 1st Jt Report further opined that although there was considerable chance P would suffer another dislocation in her lifetime given her history of recurrent dislocation in childhood, but taking into account the clinical/functional considerations (ie P suffered her 3rd left patella dislocation by the Accident after a period of being well for 7 years), which he considered were far more important than “MRI measurement of sulcus angle” (or the slight anatomical difference between P’s left knee and right knee evident in the MRI and x-ray findings) and “possible some pre-existing muscle wasting”, one could not conclude there was “high chance of recurrent dislocation of left patella again in future even with any trauma”. But Dr Lam explained under cross-examination that in P’s case, if there was a fall or other activity involving a twisting motion of the knee or if there was a blow to the knee (ie a rather severe kind of trauma but with less force than required to dislocate a normal patella without previous dislocation), then there would be a high chance of patella dislocation. To put it in another way, Dr Lam opined that even though P’s history of 2 previous dislocations (though at young age) might predispose her to have a 3rd dislocation, if she did not suffer considerable trauma to the left patella (eg twisting of the left knee) in future, she would probably never experience such severe dislocation. 605.On balance, particularly given my findings in respect of P’s Knee Condition, I prefer Dr Wong’s opinion in paragraph 602 above. Dr Lam acknowledged there was considerable chance P would suffer another dislocation in her lifetime given her history of recurrent dislocation in childhood, but he suggested it would only happen with severe trauma (but with slightly less force than that for a normal and well knee). But that assumed that P’s rehabilitation after the 2nd Episode was good, that she had good functionality thereafter with a well left knee for 7 years prior to the Accident, and that her good functionality overrode possible bony structural defects and weakened soft tissues. I have rejected these assumptions in coming to my findings on P’s Knee Condition, which undermined Dr Lam’s opinion. On balance I do not accept Dr Lam’s suggestion that some severe trauma was required to dislocate the patella of a patient with recurrent dislocations that rested on such assumed premises. The suggestion that when rehabilitation was suboptimal it still required trauma such as twisting of the knee to result in patella dislocation also rested on Dr Lam’s assumption that “the muscle will balance itself”. But I have found in P’s case her medial soft tissue / muscle support for the left patella was weakened. I have also found P’s left knee had on-and-off pain as well as pain inhibition such that her muscle stabilisers (eg VMO, quadriceps and retinaculum) were lax, reduced or wasted, which soft tissues coupled with her bony structural defects (eg almost flattened sulcus angle and trochlear dysplasia) would likely lead to patella instability events as evidenced by osteoslerosis at the lateral femoral condylar trochlea, patella apprehension sign and J sign. I find on balance that with P’s Knee Condition P could dislocate her left patella even without trauma. 606.Accident Dr Lam opined in the Ortho 1st/2nd Jt Reports that P’s left patella dislocation at the time of the Accident had certain features that were different from the dislocations of the 1st/2nd Episodes, which were suggestive that it was caused by severe trauma and not by P’s pre-existing left knee condition. 607.First, Dr Lam in the Ortho 1st Jt Report relied on P’s account of the mechanism of injury for the Accident that she was tired at the time when she walked down the Staircase, and “her left foot missed a step, and she felt severe pain in her left knee”. But I have rejected P’s such account which Dr Lam harnassed as his factual assumption (see Part XXVII(b) above). Dr Lam opined under cross-examination that due to P’s ability to (a) pass the Physical Fitness Test and (b) handle the rigorous physical training exercises for PI training, it was impossible for an ordinary act of walking down the Staircase to have caused such severe injury. I will return to the matter of alleged severe injury below, but in light of my findings in Part VI(d) and Part X above, I am not convinced (a)-(b) above could support Dr Lam’s opinion, and the Physical Fitness Test and the physical training actually revealed P’s weak left knee with ongoing problems. 608.As Dr Wong rightly pointed out in the Ortho 1st Jt Report, it was important to have clinical correlation of P’s account of the mechanism of injury given to the Ortho Experts, ie being tired and missing a step, or what Mr Sakhrani put to Dr Wong , ie missing a step or something else to cause P to lose balance, then grabbing the RHS Handrail and then sliding down with twisting of knee but without landing on buttocks,[119] to P’s very different account of the dislocation and relocation that happened whilst walking down the Staircase as noted in the early treatment records.[120] In my view, Dr Wong rightly challenged Dr Lam’s uncritical acceptance of P’s account to the Ortho Experts. I refer to my findings as to how the Accident happened in Part XXVII(b) above. 609.Dr Wong opined (and on balance I accept) the Accident and so-called “injury” seemed to be an incident that was much milder in nature and should be considered as no different from normal daily activity. Dr Wong took into account the impression of the doctor at RTSKH’s AED that the Accident was non-traumatic (G/905). Although unknown to the Ortho Experts, the orthopaedist at PYNEH’s DOT also took the view it was the insult of intensive training on P’s underlying condition that overwhelmed P’s left knee rather than acute trauma that caused the dislocation, and P reported such advice to Kwan and Chau by WhatsApp messages (see paragraphs 482 and 488 above). So Dr Wong opined in the Ortho 1st Jt Report that the Accident “could be considered at most a minor triggering event on top of her pre-existed problem”, and further opined under cross-examination that the history and clinical features (eg the patella apprehension sign and J sign noted by RTSKH’s AED and PYNEH’s DOT shortly after the Accident, especially when the apprehension test could not be performed for patients with acute trauma – see paragraphs 311-312 above) indicted the Accident was not an acute injury. 610.Secondly, Dr Lam in the Ortho 1st Jt Report opined that the Accident/injury was a severe patella dislocation and an acute major trauma that was incompatible with ordinary or everyday activity of descending the Staircase and it could not be said that the Accident was a mere minor triggering event. Dr Lam suggested this was evidenced by 3 objective factors: (a) “[intense] bone bruise is noted at lateral femoral condylar trochlea, which is in direct contact with the inferior pole of patella. Focal bone bruise is present …… Features are compatible with lateral patellar subluxation with recent dislocation”, “[patchy] bone bruise is noted at bilateral femoral condyle and medial tibial edge”, and “[patchy] bone marrow oedema is noted at bilateral condylar edge and medial tibial edge” as noted in the MRI Report, (b) the MPFL was torn as noted in the operation record dated 9 May 2014 by UCH’s DOT (G/921-922), and (c) an osteochondral fragment (ie a piece of bone with cartilage) was knocked off resulting in a loose fragment in the knee as noted in the operation record dated 9 May 2014 by UCH’s DOT (G/921-922). I will deal with these matters in turn. 611.As regards the bone bruises, Dr Lam said in-chief that the MRI Report showed bone bruises/oedema involving both lateral and medial sides of the femoral condyle and also at the tibial plateau (being the bone underneath), which indicated high energy injury and extensive trauma. On the other hand, Dr Wong in the Ortho 2nd Jt Report opined that the MRI features of intense bone bruises should not be regarded as severe patella dislocation as this MRI feature “should be found in every single case of patella dislocation”. Dr Wong explained that the mechanism of patella dislocation and relocation involved the patella being abruptly pulled out of its groove laterally and then forcibly bounces back into position, so I do not find it surprising that in so doing the patella would impact against the bony structures of the patellofemoral joint, including the lateral femoral condyle which the laterally displaced patella had to cross to return to its regular position within its groove. In the circumstances, I prefer Dr Wong’s opinion that bone bruise of itself was not a finding of severe trauma. 612.As regards the MPFL tear, Dr Lam opined this was objective and unmistakable evidence of severe patella dislocation caused by considerable trauma, “and such trauma to the left knee is something that [P] may never encounter again in her life ……” But I refer to paragraphs 270-279 above in which I have found the MPFL tear noted in the intraoperative findings was not a fresh tear at the time of the Accident but a chronic one, so it would not have assisted Dr Lam’s opinion. 613.As regards the osteochrondral fragment, Dr Lam opined this again was objective and unmistakable evidence of severe patella dislocation caused by considerable trauma, “and such trauma to the left knee is something that [P] may never encounter again in her life ……” I refer to paragraphs 280-288 above in which I have found (a) the loose body in the lateral gutter discerned by Dr J Lam from the x-rays was a “false-positive” observation disabused by the intraoperative findings that did not note any loose body in the lateral gutter, and (b) the intraoperative finding of an osteochondral fragment at the medial border of the patella was likely the result of a subsequent patella instability event. 614.The Ortho Experts noted in the Ortho 1st Jt Report that “…… [P] said she heard/felt a click during the dislocation, and felt great pain over the inner side the kneecap ……”, which was said to be “different from previous dislocations”. Dr Lam testified that the click meant there was some tear. But on balance I reject P’s account to the Ortho Experts of hearing/feeling a click during the dislocation, which I find to be an unreliable embellishment to play up the “trauma” nature of the Accident and/or the severity of the injury. This was no mention of a “click” to the treating nurse/doctors prior to the Ortho Exam nor in P’s pleadings, P’s statement evidence and the Psy Jt Report. 615.Thirdly, Dr Lam opined that the Accident happened 7 years after the 2nd Episode (when soft tissue realignment surgery was offered but declined for conservative treatment), so whilst he accepted the 1st/2nd Episodes that happened many years ago probably contributed to the dislocation at the time of the Accident, it was not a major factor for such dislocation. Taking into account the clinical/functional correlation of P’s good rehabilitation and recovery after the 2nd Episode, Dr Lam considered it was likely that P enjoyed rather painless and satisfactory function in her left knee before the Accident. Dr Lam opined the injury from the Accident was “probably more severe and different from” the 1st/2nd Episodes and required surgical stabilisation with slow/gradual improvement after surgery and a long course of rehabilitation, which “has an important contribution to the residue pain and impairment in the left knee after the subject injury”. 616.In the discussions above, I have largely rejected Dr Lam’s reliance in the Ortho 1st/2nd Jt Reports on matters of clinical/functional correlation,[121] and have found that P suffered from pre-existing P’s Knee Condition. Further, I do not think much could be made out of the fact P did not have surgery after the 2nd Episode but had surgery after the Accident. Both Ortho Experts agreed the soft tissue realignment operation and the 1st Surgery were the same type of corrective surgery to strengthen the medial support for the left patella and to decrease the risk of further recurrence of left patella dislocation. That the 1st Surgery was for correcting an underlying problem was borne out by the Consent Form dated 21 January 2014 that P signed (G/923-927) which stated P had “left knee recurrent dislocation of patella”, the nature of the 1st Surgery was “arthroscopic left knee + ligament reconstruction”, and the anticipated outcome of the 1st Surgery was “decrease chance of dislocation” (see paragraph 830 below). 617.Dr Wong opined that the key to prevent dislocation was to strengthen the quadriceps muscle. He noted that after the 1st/2nd Surgeries and intensive physiotherapy, P’s left and right thigh girths were quite comparable, so it was likely that the left quadriceps muscle had become as strong as the right quadriceps muscle. Dr Wong explained this explained why corrective surgery was required, ie it was only after operative stabilisation of the patella that the patient could then intensively train the quadriceps muscle (see paragraphs 179, 188(c), 206, 209, 215, 524, 528 and 534 above). But P had pre-existing muscle wasting because corrective procedure (ie soft tissue realignment procedure) offered after the 2nd Episode was refused with suboptimal rehabilitation and functionality. 618.I find on balance that (a) the 1st Surgery was mainly to deal the pre-existing P’s Knee Condition (and incidentally to remove the osteochondral fragment not noticed on available x-rays and MRI), and (b) the dislocation on 20 December 2013 was an atraumatic materialisation of such underlying condition. This was not so unexpected given (i) the 2nd Episode also happened during an atraumatic activity, (ii) the less than satisfactory condition of P’s weakened and unstable left knee after the 2nd Episode, (iii) the overloading of such weakened left knee as a result of physical training (albeit modified) at the College, and (d) the congenital virtually flattened femoral sulcus (and trochlea dysplasia), which shape would not be changed upon reaching adulthood and which bony structural defects were conducive to patella instability and were compounded by soft tissue defects such as wasting/ laxity of support muscles as a result of pain inhibition from on-and-off pain of the left knee. 619.Fourthly, Dr Wong said in-chief (and on balance I accept) that with an almost flattened left femoral sulcus (and trochlea dysplasia), there was chance that P could suffer a patella dislocation by normally walking down a staircase. He explained that walking down a staircase was a particularly dangerous act for a person with recurrent patella dislocation because the whole body relied on the knee for support whilst walking downstairs, and the knee would be put through higher degree of flexion, so walking down the Staircase of itself could cause dislocation especially given P’s Knee Condition (ie almost flattened femoral sulcus and soft tissue laxity (such as laxity of medial retinaculum) as noted in the MRI Report). 620.As to why dislocation happened at the time of the Accident but not on other occasions when P walked down the Staircase, Dr Wong opined there were 2 likely reasons:
621.Dr Lam accepted in-chief that there would be occasions when the muscles get tired from exercises and work, and that severe fatigue/weakness would decrease the stabilising effect on the patella. But he suggested that “…… if it is a more gradual process, if there’s enough time for rest after the exercise, then that should be okay ……”, and muscles would recover fairly rapidly, eg 1-2 days’ rest would be enough. I note such opinion was not too different from Dr Wong’s views as to the effect of intensive exercises on the muscles of a normal and well person, ie that the muscles would recover in 1-2 days or 2-3 days. I also accept that for a normal and well person muscles would gradually build up with regular exercise and training to accommodate the stress. But I have found that P’s muscles were lax/weakened and there was pre-existing muscle reduction or wasting. Dr Lam accepted that if physical exercises overwhelmed the ability of the muscles to recover and there was insufficient rest, the result would be worse. P herself admitted she had insufficient rest / inadequate sleep, and I find (as also opined by Dr Wong in the above paragraph and by the orthopedist at PYNEH’s DOT – see paragraphs 482 and 488 above) that P’s training (albeit modified) overwhelmed her weakened and unstable left knee and contributed to the spontaneous dislocation of her left patella upon the ordinary activity of walking down the Staircase. 622.When it was put to Dr Lam that P had daily physical training and insufficient rest, he still testified that P would not have been “…… very different from a normal person because after dislocation, in her case probably she had undergone physiotherapy, everything, to optimise the strength of the muscles …… so …… [her] response to the muscle fatigue would not be too different from a normal person because those dislocations were actually seven years ago …… The soft tissue whatever in the previous dislocation must have healed and the muscles strengthened, and the child has grown up ……” Such opinion could not stand in light of my findings on the pre-existing P’s Knee Condition. I also bear in mind Dr Lam’s concession under cross-examination that if P did not play handball and/or basketball at high level after the 2nd Episode (which I have found to be so), then he could not say she had good functionality, which would affect his assessment and “shift the whole thing” (see paragraphs 193, 203, 208 and 315 above). 623.In all the circumstances, I prefer Dr Wong’s opinion that P’s left patella dislocation and self-relocation on 20 December 2013 were due to the pre-existing P’s Knee Condition and not a result of any trauma, and that even without the Accident, P would likely suffer recurrence of left patella dislocation without trauma due to her underlying condition. This nicely brings me to briefly consider the 3 Chan Kam Hoi categories although this will be discussed in further detail on the issue of quantum. 624.Chan Kam Hoi categories Mr Sakhrani helpfully summarised Dr Lam’s opinion as follows:
625.On the other hand, Dr Wong opined that P fell into category 3 of the Chan Kam Hoi categories (ie the present condition would certainly have occurred at some stage in any event). In light of my findings above and further discussion in Part XXXVIII(d) below, it was clear that P was within category 3 of the Chan Kam Hoi categories. (d) Assumed scenario: negligence? 626.Given my conclusion on causation of P’s left patella dislocation and self-relocation at the time of the Accident, P’s claim that rested on the Accident (but excluding the post-Accident events) must be dismissed, and there is no need for me to go on to consider the other issues in paragraph 576(1)-(3) above. But I do so briefly for the sake of completeness on the assumption (which I disagree) that P successfully proved (a) the Accident was unrelated to the pre-existing P’s Left Knee Condition, and (b) the Accident occurred as a result of 1 of the 3 Scenarios that caused her to lose balance and fall, and as a result her left knee dislocated and self-relocated whereupon she grabbed the RHS Handrail and slided down to sit on the steps. 627.Lighting There was no dispute that sunrise was at 6:58am in the morning of 20 December 2013 (E/435). In her oral closing submissions, Ms Chao tried to suggest the sky would have lightened just before the sun rose from the horizon. I disagree as such submission failed to sensibly take into account that the Staircase was located not on level ground with an obstacle-free view to the horizon but within the Premises with buildings and trees. In any event, the Accident occurred 52 minutes before sunrise, so there would not have been sufficient natural light. I accept that without artificial lighting, the Staircase would have been in the dark. 628.As for artificial lighting, there was no evidence on how bright the wall lamps and streetlamps were except for P’s claim in P’s 1st WStmt that they gave off orange-yellow coloured light that was not very bright. The Chau 2nd WStmt stated that “[as] far as [Chau] understand from the HKPF records, the lights at [WBB] and the [Road] are on automatically from 1730 to 0630 hours every day whether in summer or winter ……”, and that Chau “believe” there was sufficient lighting to shine on the Staircase at the material time. I do not think there was dispute that the RHS/LHS Lamps and the RHS/LHS Streetlamps were on at the time of the Accident, so Chau’s understanding from HKPF’s records did not really assist on the issue of liability. But apart from the fact the wall lamps and the streetlamps were on, Chau gave no other grounds for his belief that there was sufficient lighting. 629.As for the Lee 1st/2nd PStmts that stated lighting was “enough” or “sufficient”, the Lee 2nd PStmt did not add anything further to the subject of lighting in the Lee 1st Stmt since Lee said in the Lee 2nd PStmt she refreshed her memory from reading the Lee 1st PStmt. But the Lee 1st WStmt did not say where Lee was when P called out for help at the time of the Accident. I accept Lee tended to P after her patella dislocation and self-relocation and after she slided down onto the Staircase, but it was not clear where exactly Lee was when the Accident happened. Given the pre-dawn darkness, the shadows cast by objects/ vegetation on the Staircase (particularly at the Site), which shadows would not necessarily remain still given leaf/branch movements in the outdoor air/breeze and the paucity of evidence (save for P’s statement evidence referred to in the above paragraph) as to the brightness or otherwise of artificial lighting, I do not find myself able to rely on Lee’s time-lagged impression of lighting at the Site. I do not doubt the genuineness of Lee’s effort at recollection of the condition at the Site 2 weeks before she made the Lee 1st PStmt, but in all the circumstances I could not safely rely on her brief assertion. On balance, I accept P’s evidence that the artificial lighting was not very bright. 630.Thus, given the pre-dawn darkness, the not very bright artificial lighting, and the existence of obstacles/vegetation that would cast shadows, distances from the source of artificial lighting to the Site would matter, and I will deal with them in paragraph 639 below. Suffice to state here I find the lighting inadequate for reasonable usage of the Staircase at the material time. 631.According to the Kwan 2nd WStmt, shortly after the Accident, Kwan inspected the Staircase to see whether there was any irregularity. He found lighting was sufficient to illuminate the Staircase which was built on the Slope with no plantation and kept in good condition. Whilst I have no concern over Kwan’s efforts in inspecting the Staircase and its environs, I find myself unable to place weight on his observations as no evidence was adduced as to when he carried out his inspection. He would have seen the positions of the RHS/LHS Lamps and RHS/LHS Streetlamps, and perhaps assumed the adequacy of artificial lighting. But it was unclear whether he visited in broad daylight (when the lamps would not be on) or at night (when the lamps would be on). Thus, while I accept Kwan did inspect the Staircase, fairness required that in the absence of evidence as to whether the inspection was made under what Mr Sakhrani described as comparable lighting condition I should not place weight on his assertion that lighting was sufficient. 632.Kwan said under cross-examination that no one under his command or in his team took photographs of the scene on the day of the Accident. He himself did not take any photograph because he actually went to inspect the site himself. He was not the one who took Photos at H/949, 951 and 952. Mr Sakhrani submitted that Kwan’s unexplained failure to do so when he actually inspected the Staircase (when he made extensive records about the Accident on 3 January 2014) necessarily undermined his credibility, and further suggested Kwan’s omission to take photographs was deliberate. 633.On balance, I am not persuaded that the fact Kwan or other police officers did not take photographs of the Staircase and its environs was breach of paragraph 16 of SSPFTSO10-08 that required “…… [DSRMs] …… exercise their discretion in determining whether an investigation is required in respect of a particular case, but should nevertheless consider securing photographs of the scene irrespective of whether or not an investigation is considered necessary ……” (my emphasis) (E/568). Paragraph 16 of SSPFTSO10-08 gave the responsible officer discretion to determine whether photographs were required. Here, the Accident that was allegedly caused by the static condition of the Staircase and its environs was quite different from, say, a car accident, machine-caused injury, or injury from fall of object from height that involved a vehicle, equipment or object that would subsequently be removed from the accident scene so that their damaged parts and/or positions would become lost. The Staircase and vicinity had not changed, and it was about 4 years later that the edges of the rest of the steps were coloured yellow. Plainly, Kwan considered he had sufficient information from his communications with P and other relevant PIs and his impression from his inspection to fill out the necessary Form 2 and for Chau to fill out the OSH Accident Report Form. On balance, I am not persuaded Kwan deliberately refrained from taking photographs of the Staircase and its environs because he thought they would have revealed insufficient lighting and obstacles/vegetation thereat. Since the lighting, obstacles and vegetation remained quite unchanged for years after the Accident, I see no sensible reason or utility for Kwan to hide such static conditions by not taking photographs. 634.Ms Chao next reminded it was D’s case that P voluntarily gave and signed the 3/1/14 Stmt that stated “lighting was enough”. I note it was Kwan who prepared the draft of the 3/1/14 Stmt upon information that he gathered about the Accident, ie his impression from the site inspection, and his liaison with P and other relevant PIs. I have found myself unable to safely rely on his impression and that of Lee (and Kwan probably so drafted the 3/1/14 Stmt upon gathering information from the squad prefect and Lee from whom he took the Lee 1st PStmt), so in fairness and on balance I should not place weight on the description of lighting in the 3/1/14 Stmt. As explained in Part XXXII(g) below, by the time P signed the 3/1/14 Stmt, she had resigned and was probably not too concerned about the 3/1/14 Stmt that only dealt with the Accident (especially when she understood from the orthopaedist of PYNEH’s DOT that the dislocation injury on 20 December 2013 was due to intensive training that overwhelmed her left knee (and I have found she knew of P’s Knee Condition even if she might not have known about the bony defects), which understanding was reinforced by Dr J Lam and UCH’s DOT who recommended corrective/reconstruction surgery that addressed her underlying knee problem). I also note that it was much later on 7 October 2017 that P wrote to HKPF to amend the 3/1/14 Stmt by saying that lighting at the material time was not enough. 635.Finally, I do not agree with Ms Chao’s suggestion that the lighting was sufficient because 3 PIs were able to descend the Staircase without tripping, slipping or falling. The fortuity of safe passage by these 3 PIs and (previously before the Accident) by P would not have lessened the obligation on the part of HKPF to provide adequate lighting for reasonable use of the Staircase before sunrise in winter which was the usual time PIs residing at WBB would walk down the Staircase to go to the Parade Ground for morning roll call. 636.Objects/vegetation P, Kwan and Chau agreed there was vegetation in the vicinity of the Staircase at the material time although as Kwan said, there was no “plantation” right next to the Staircase on the Slope. Kwan/Chau suggested the vegetation was similar to those shown in the Photos, but P had the impression there were more trees/vegetation at/around the Unpaved Land (see paragraph 446 above). As P did not articulate the extent and growth of “more vegetation” in vicinity of the Staircase on 20 December 2013, I proceed on the state of vegetation shown in the Photos. 637.Ms Chao suggested the Photos would not accurately depict light and shade created by the surrounding objects/vegetation at the material time as they were taken in daylight and years after the Accident. I disagree. In places beyond the light distribution of the wall lamps and streetlamps, illumination would be worse before dawn than during daytime. It was dark before sunrise, and even if there were sunrays peeking above the horizon as Ms Chao suggested, natural light at that angle would cast long shadows of the surrounding objects/vegetation. Indeed, the Photos showed parts of the Site in shadow from surrounding objects (eg the RHS Handrail) and vegetation even in daylight depending on the direction where the light came from. 638.As for the reach of light distribution from the wall lamps and streetlamps, it might be argued that it would be inappropriate to rely on the average distance from each such wall lamp or streetlamp to the Site calculated by Ms Chao from the distances given by various witnesses (see paragraph 453 above), but I do so here in fairness to both parties as no measurements were taken by either party, and the factual witnesses relied on their recollection years after the Accident. Whilst the Photos were helpful cross-checks of such recollections and impressions, they also do not give precise measurements. 639.In my view, while the average distances of the RHS Lamp and the LHS Lamp that were affixed to the outer wall of WBB on the upper level were respectively 4m and 6.6m from the top of the Staircase, I bear in mind the Site was a drop of 3m (on average) from the top of the Staircase (see paragraph 453 above). I find on balance that it would be difficult for artificial light from the RHS/LHS Lamps to reach the Site, especially when the Bush was in the line of light distribution from the RHS Lamp and the blue signboard on top of the LHS Slope was in the line of light distribution from the LHS Lamp. In my view, any light from the RHS/LHS Lamps that might have filtered down through such object/ vegetation would have been rather scattered and dim, especially when the light was orange-yellow in colour. As for the LHS/RHS Streetlamps, I find they were quite far away, ie 18.3m away even on the average distance calculated by Ms Chao, and it would have been unlikely for such streetlamps to illuminate the Site. Further, light coming the RHS Streetlamp, similar to any natural light coming from the east, would have cast shadows of trees or bushes on the RHS Slope and/or the RHS Handrail on the Staircase. 640.Mr Sakhrani drew my attention to the following observations by G Lam J in Yau Tsz Hon v Broadway Theatre Company Limited:[122]
Such observations were fact/case sensitive, and I am unable to see their usefulness or relevance given the different configuration of lighting vis-à-vis the indoor (not outdoor) staircase. Nevertheless, on the basis of findings in relation to the distribution and reach of artificial lighting in the present context, Mr Sakhrani did have a point in suggesting that the Site was a “blindspot” where lighting from the RHS/LHS Lamps and RHS/LHS Streetlamps would be difficult to reach. Even if it was not completely dark there, lighting would be dim and inadequate, especially when objects (eg the RHS Handrail, blue signboard, etc) and nearby vegetation on the upper level (eg the Bush) or on the Slope might compromise illumination over the Site. 641.Hand-held torch There was no dispute that no torch was provided by HKPF to P. Ms Chao submitted no torch was required to be provided because there was sufficient lighting, but this reason could no longer stand in light of my finding otherwise. On the other hand, Mr Sakhrani submitted (and I agree) there was a real and foreseeable risk that D knew or ought to have known it would be still dark when P and other PIs used the Staircase, which was right outside the entrance of WBB and part of the standard route to go from WBB to the Parade Ground every day for morning roll call. 642.Keith JA in Wong Wai Ming v Hospital Authority[123] reminded that where a risk of danger could not be eliminated, the employer would be required to take reasonable precautions to reduce the risk as far as possible even though it would not be required to remove every risk no matter how small that might confront its workforce. In my view, the minor expense of providing women PIs residing at WBB with small hand-held torches when weighed against the real and foreseeable risk of injury in descending the Staircase under inadequate lighting in early morning must be a reasonable and practical means of eliminating such risk, and D’s failure to do so showed HKPF was neglectful of such risk. 643.Yellow strips The edges of the top and bottom steps of the Staircase were painted yellow at the time of the Accident so each such edge appeared to be a yellow strip, which measure was presumably for alerting users of the Staircase to the beginning and the end of the Staircase. Ms Chao argued this was quite sufficient, but Mr Sakhrani submitted the edges of the rest of the steps should also have yellow strips to enhance visibility, quite in the same manner when by April 2018 such further yellow strips were painted on the other steps of the Staircase to further improve occupational safety for users of the Staircase after review of OSH matters (see paragraph 573 above). 644.Ms Chao citing Yang Yee Man v Leung Hing Hung (No 3)[124]submitted that post-accident measures should not be relied on as evidence of D’s negligence, especially when these additional yellow strips were painted sometime between mid-2017 and April 2018, which was years after the Accident on 20 December 2013. But Bharwaney J pointed out in Yang Yee Man that although one should not point to ex post facto measures as necessarily indicative the alleged tortfeasor had been negligent in the past, “as was made clear by the Court of Appeal in Wong Wai Man v Hospital Authority [ 2001] 3 HKLRD 209, the relevance of the precautions taken since the accident is that they demonstrate that it should have been practicable to take those measures before the accident” (my emphasis). 645.I have found that at the material time illumination of the Staircase, especially at the middle part where the Site was located, was inadequate, and any light from the wall lamps and streetlamps, which were not very bright in the first place, that reached the Site (if at all) would have been dim and weak. That being the case, having yellow strips at the edges of all steps would have aided visibility of the steps at/about the Site by highlighting the individual steps to help the user identify where to place his/her foot for the next step and to overcome the real risk, as Mr Sakhrani put it, of a large part of the Staircase (including the Site) blending into a single grey expanse under night/dark conditions and rendering it difficult to make out the individual steps between the top and bottom steps. Since painting the additional yellow strips appeared to be a simple, inexpensive but useful measure, I could not find any sufficient reason why it could not have been so painted at/before the time of the Accident to improve visibility and safety. 646.Inspections Ms Chao argued that the task of walking down the Staircase was a simple one, so HKPF could rely on P’s own common sense to carry out such task in a safe manner. She referred to Fong Yuet Ha v Success Employment Services Limited.[125] In that case, the plaintiff stood on tip-toe to reach for some canned food placed deep inside an upper shelve, but the stool became unstable and she fell (paragraph 8). Liability was not established. That case concerned the personal and non- delegable duty on the part of the employer to provide a safe system of work, and the Court of Appeal held as follows:
647.Frankly, it was not easy to understand such argument for the dispute here was not about safe system of work but with safe place of work. Climbing on a stool to reach canned food on a shelf was itself a work activity that was simple enough not to require a system of work. But walking from WBB to the Parade Ground and thereby using the Staircase was not any work activity but rather using the employer’s premises to access the place of work activity (ie the Road where P’s squad would fall in or the Parade Ground where morning roll call would take place). D’s suggestion that “P is not a kindergarten [student] whereby she needs to be taught how to do a simple task of walking down the Staircase in a safe manner” missed the focal issue and had no merit. 648.Ms Chao next argued that HKPF had existing measures to provide a reasonably safe place of work, ie to ensure that the Staircase was sufficiently safe and adequately lit/visible. But even though D pleaded in his Defence that monthly hazard inspections were conducted and that there were monthly workplace inspections by qualified risk assessors in accordance with the Occupational Safety and Health Local Safety Risk Management Protocol dated 1 May 2010 and SSPFTSO10-08, no monthly reports had been adduced as evidence. So D was reduced to rely on the general observations in (a) the Chan WStmt that HKPF had a well-developed system of upholding OSH and that a system had been established with a view to maintaining OSH within HKPF and to minimising the happening of OSH incidents, and (b) the Kwan 2nd WStmt that noted (i) lighting was said to be sufficient and the Staircase was kept in good condition at Kwan’s site inspection shortly after the Accident, and (ii) the HKPF records showed there was a cleaning worker who was responsible for sweeping/cleaning the Staircase on a daily basis. 649.But in my view, these general assertions would not take D’s defence any further. Chan’s assertions were too broad and general to give any insight as to what actually was the system that was said to have been put in place and/or the inspections that were done in relation to the Staircase. Quite simply, there was no evidence of any safe system beyond the bare plea and assertion. I had dealt with the matter of Kwan’s site inspection in paragraph 631 above. As for the suggestion that the Staircase was kept in good condition, it was clear Kwan had no personal knowledge and had to refer to the HKPF records, which were not adduced at the trial. In the circumstances, Mr Sakhrani was right to say there was a gap in evidence between considered need for monthly hazard inspections to identify hazards at the workplace and to take action accordingly, and D’s evidence on such inspections, identified hazards, action taken and relevant records. I am not satisfied there was sufficient evidence to show safe system had been put in place for identifying the hazard of inadequate lighting or for proper cleaning of the Staircase.[126] 650.Risk assessment Mr Sakhrani submitted that a prudent employer should conduct risk assessment in connection with his operations so that he could take suitable precautions to avoid injury to his employees irrespective whether there was a statutory duty to do so.[127] There was no evidence HKPF had actually done risk assessment of possible slip and fall on the Staircase (given its regular use in dark/dim condition in the early morning) and the adequacy of lighting for the Staircase. I agree that had HKPF carried out proper risk assessment, it would have been apparent that illumination of the Staircase (at least in the middle part where the Site was located) was inadequate at certain times of the day (eg early hours of the morning when the Staircase would be used by women PIs residing at WBB to go the Parade Ground for morning roll call). But given my aforesaid findings, it is unnecessary for me to go on to consider whether HKPF should have installed lights at the side of the Staircase to illuminate the “blindspot” in the middle as Mr Sakhrani suggested. 651.P’s own carelessness Ms Chao submitted the Accident and P’s injury were caused entirely by her own carelessness, so D should not be found liable to her. 652.First, Ms Chao submitted that the fact P did not know which of the 3 Scenarios caused the Accident must have meant P (who knew the Staircase and its surroundings) was not paying attention or was not walking carefully. But the present discussion was premised on the assumption that P lost her balance because of 1 of the 3 Scenarios (even though I disagree with such assumption), and I do not think Ms Chao’s suggestion necessarily followed given my finding that the inadequacy of illumination was a large factor in P not visualising where she put her foot before she lost balance (on the basis of the aforesaid assumption). 653.Secondly, Ms Chao relied on the 3/1/14 Stmt that stated P was “eager to go down fast” and accidentally hurt herself, which Ms Chao submitted was tantamount to saying P decided to “run fast” down the Staircase. On such surmise Ms Chao argued P must have been careless to decide to “run fast” down the Staircase when (a) she was aware of the condition of the Staircase and its vicinity in the early morning at/about 6:15am, (b) she was tired from additional/extra training the night before, studying up to 2am and sleeping less than 3-4 hours, and (c) she was aware of the pre-existing P’s Knee Condition. 654.I disagree. Although I will consider the matters in (a)-(c) above when I come to the issue of contributory negligence, I find Ms Chao proceeded on the wrong foot in her above submissions. I note that all the early treatment records recorded the Accident happened when P was walking down the Staircase, and I have found the consultation notes dated 27 December 2013 by UCH’s DOT made an inadvertent error by the reference to “running”, but this had been clarified in subsequent medical reports by UCH’s DOT (see paragraph 523 above). That being the case, and bearing in mind (a) the Accident happened at a time close to the prescribed time for morning roll call at the Parade Ground and (b) the women PIs had to fall in squad on the Road before proceeding there, I find what was meant by “eager to go down fast” in the 3/1/14 Stmt (and there was no dispute it was drafted by Kwan) could only have meant P was “eager” or anxious to go quickly to the Road below to fall in squad and proceed to the Parade Ground, but it certainly did not mean she was running down the Staircase. I find no merit in this argument. For completeness, I note that P by her letter dated 7 October 2017 to HKPF enclosed her revised 3/1/14 Stmt (E/474-475) that she prepared herself in October 2017, and the altered 3/1/14 Stmt stated inter alia that “…… As I was eager to go down fast, I accidentally hurt myself. ……” 655.Thirdly, Ms Chao submitted there were 3 other PIs walking ahead of P on the Staircase, and their safe negotiation of the Staircase was evidence that P was careless about her own safety, citing Chan Chi Kee v Secretary for Justice (for and on behalf of Director of Leisure & Cultural Services)[128] in support. In Chan Chi Dee, the plaintiff had a slip and fall on an arched footbridge over a public swimming pool covered with anti-slip green artificial turf. The learned judge found against the plaintiff’s case on causation that his slip and fall happened because he stepped on moss or foreign material. Ms Chao seized upon the factual finding by the learned judge in that case that “[the] fact that despite so many patrons were on site, and that even P’s own family members did not slip and fall while walking the same bridge and steps, I find that P had been careless about his own safety ……” (paragraph 12) to support her contention. But I find myself unable to draw much assistance from such case-specific finding as each case must be decided on its own facts. This was especially so when in Chan Chi Kee, on the day in question the public swimming pool was “full house, being 906 patrons at the time”. The fact that 906 patrons used the swimming pool and the subject bridge together with ample evidence of inspections and cleaning (see footnote 126 above) made that case a far cry from the present circumstances of 3 PIs preceding P on the Staircase before sunrise and under inadequate lighting with sparse evidence of inspections and cleaning. 656.Fourthly, Ms Chao submitted that even if P had taken care, she knew the Staircase and its environs at the material time as well as P’s Knee Condition, so she should have held onto the RHS Handrail as she descended the Staircase and should have “been more careful in walking down the Staircase”. I will deal with the matter of holding onto the RHS Handrail when I discuss the issue of contributory negligence below, but even if P should have held onto the RHS Handrail, I am not convinced it would have provided a complete answer to the issue of liability on the assumed basis as explained in paragraph 626 above. 657.Summary On the whole and for all the above reasons, I disagree that P’s carelessness was the sole cause of the Accident. On the assumption in paragraph 626 above (which assumption I do not accept), I am not satisfied that at the material time D provided safe place of work, and had P been able to establish causation (which I find she did not), D would have been liable to P for breach of his duty of care under negligence, which duty was co-extensive with his statutory duties and under the implied terms of P’s contract of employment. 658.Contributory negligence Mr Sakhrani submitted there was no contributory negligence in the present case, and argued that had D taken the safety measures he should have taken at the time, it was unlikely that P would have been injured on the Staircase. It was said that P should not be blamed for losing her footing as a result of inadequate lighting simply because she had used the Staircase in the past, and she and others had not met with any accident before. I agree that simply because there was no accident before on the same Staircase was not sufficient proof of contributory negligence on the part of P. But likewise the fact D was negligent did not necessarily mean P was not contributorily negligent. 659.Mr Sakhrani next submitted D’s averments on contributory negligence in the Defence was inadequate, and it was not specifically pleaded that P should have held the RHS Handrail when descending the Staircase. In Chan Ying Wai v Secretary for Justice for and on behalf of Commissioner of Correctional Services,[129] I have deplored the paucity of particulars in pleading the plaintiff’s primary case in negligence against the defendant in relation to a slip and fall incident on a staircase, and rejected a late application made shortly before the trial to add fresh specific averments in relation to (a) the overall system of inspection or maintenance implemented in relation to the staircase where the plaintiff allegedly slipped and fell, (b) the overall cleaning system implemented including placing of drying machines or mopping the staircase, and (c) the provision of personal protective equipment, ie safety footwear for the plaintiff. These were completely fresh matters outside the circumstances of the subject incident itself that had to specifically pleaded, and the proposed averments were rejected as being far too late and prejudicial to the defendant’s preparation for trial. 660.But D’s complaint here about P not holding onto the RHS Handrail on the way down the Staircase did not arise from any fresh allegation (eg the alleged lack of provision of safety footwear in Chan Ying Wai) and was not reliant on any fresh evidence. Rather, it rested on (a) P’s own account as to how the Accident happened, ie that she grabbed the RHS Handrail after she lost balance at the Site, (b) P’s own case that she was tired and fatigued because of her additional/extra training for half an hour 3 days a week, her studies late into the night until 2am and her inadequate sleep/rest for 3-4 hours only each night, (c) P’s own evidence of awareness of the Staircase and its surroundings in the early hours of the morning from her previous use of the Staircase, and (d) the court’s eventual findings on P’s awareness of the pre-existing P’s Knee Condition. In such circumstances, I am not persuaded D’s pleaded averments in the present context were inadequate. 661.Ms Chao submitted that in light of (a)-(d) above, even if there was insufficient lighting/visibility of the steps, P failed to take reasonable care for her own safety when descending the Staircase by failing to hold onto the RHS Handrails given her understanding of P’s Knee Condition and the environment of the Staircase at the time. Ms Chao suggested P’s contributory negligence should be 75%. 662.Ms Chao cited a number of authorities, including Chan Chi Kee and Pak Sai Ming which Ms Chao particularly relied on.[130] In my view, the factual circumstances of both cases were quite different from the present case, and in my view would not provide any direct guidance. 663.As alluded to above, Chan Chi Dee, which Ms Chao placed particular reliance, concerned use of an arched footbridge over a public swimming pool covered with anti-slip green artificial turf, which was plainly quite different from the factual context of the Staircase in the present case. The court in that case noted the plaintiff already felt slipperiness “at 2 or 3 paces from the steps”, so he must have been aware there was at least water on the artificial turf, which was why the learned judge suggested the plaintiff should “move to the side and hold onto the handrail, or stop altogether and/or turn back, or if he wished to continue walking then reduce his speed to a snail’s pace” (paragraph 12). I agree with Mr Sakhrani that in Chan Chi Dee the slipperiness of the steps was noticeable but the risk was taken. I further agree with Mr Sakhrani that in the present context taking reasonable precaution did not mean moving at a snail’s pace. 664.In Pak Sai Ming, the plaintiff slipped and fell 10 steps down the staircase. The court was not satisfied there was wetness or such moisture on the staircase to cause the plaintiff to slip, and dismissed his claim (paragraph 30). But on the assumption that she was wrong, Au-yeung J went on to consider the adequacy of safety measures and contributory negligence. On the latter issue, the learned judge considered Yu Tsz Him, and found P to be 60% contributorily negligent because the plaintiff “was a frequent user who had to use the Staircase 15-20 times on each working day and for several years before the accident. With the foresight of a risk of slip and fall, he had not taken the care as a reasonable person would have, most simply by holding the handrails when descending” (paragraph 43). Mr Sakhrani tried to distinguish Pak Sai Ming by saying that in that case there was no lighting issue “inside the emergency stairwell” (paragraph 21), and there was “foresight of a risk of slip and fall” since the plaintiff was a frequent user of the Staircase (paragraph 43). Whilst I agree there was no lighting issue in Pak Sai Ming when inadequate lighting was a significant feature in the present case, and the plaintiff in Pak Sai Ming had use of the staircase much longer than P’s use of the Staircase, I note P agreed under cross-examination she had general understanding of the layout of the Staircase and its vicinity, and she must certainly have been aware it was dark as her previous use included going down the Staircase at the same early hours. 665.On the other hand, Mr Sakhrani submitted that the Accident happened at the “blindspot” (insofar as lighting was concerned) of the Site when P lost her balance as a result of 1 of the 3 Scenarios, which must have been a momentary inadvertence due to inadequate lighting that fell short of contributory negligence, especially when she reacted reasonably by grabbing the RHS Handrail that was within easy reach when she lost balance. In support, Mr Sakhrani referred to the following observation by Ribeiro JA (as he then was) in Mak Woon King & anor v Wong Chiu[131] which DHCJ Paul Lam SC cited in Tamang, Tikaram v Tong Kee Company Limited & ors:[132]
666.In my view, whilst I have no doubt the inadequate lighting contributed more substantially to the Accident (on the assumed basis which I have rejected – see paragraph 626 above), I am not persuaded that Mr Sakhrani’s contentions (premised as they were on P’s case of a functionally well left knee up to the time of the Accident) provided the entire answer. I have found P was aware she had higher chance of recurrent left patella dislocation and she also knew the pre-existing P’s Knee Condition which was symptomatic with on-and-off pain, muscle wasting/laxity and patella instability (even if she might not have known about her bony structural defects) which dovetailed with my findings that she told Kwan her left knee could be easily injured again, and that she required accommodation by modified training. She also admittedly knew she was tired and fatigued when she left WBB to descend the Staircase in the darkness or dimness before sunrise. I also find that as it was close to the time for morning roll call P was eager to go down to the Road to fall in squad with her squad mates to proceed to the Parade Ground. I find on balance that a combination of the above factors should have led P to adopt the reasonable and simple precautionary step of holding onto the RHS Handrail when she walked down the Staircase. 667.I do not accept Mr Sakhrani’s suggestion that “it [ie holding onto the RHS Handrail] does not mean that this would have been enough to prevent her meeting with the [Accident]”. On P’s case, even after losing balance, she was able to grab the RHS Handrail to arrest the fall and to slide down onto the steps without actually falling down to land on her buttocks. Had she been holding the RHS Handrail, she would have been able to grip support at an earlier stage of the assumed premise of losing balance or slipping to arrest the imbalance or fall earlier such that there was real possibility of avoiding any twist or pull on her left knee on the assumed premise (and hence the dislocation). 668.Taking into account all the circumstances, it would have been reasonable for P to take care of her own safety by holding onto the RHS Handrail as she descended the Staircase. I find P was contributorily negligent to the extent of 30% bearing in mind D should carry a larger share of the blame for the reasons discussed above. 669.I now turn to the post-Accident events. XXVIII. 1 JANUARY 2014 670.At 0:00am on 1 January 2014, P sent a WhatsApp message to Kwan stating “關 Sir, 新一年到來了, 我衷心謹祝您和家人身體健康, 溫馨幸福。從新一年開始, 我會信守承諾把誠放在首位, 雖然我的智力和學習能力很難很快有明顯進步, 但我都會盡心改變, 為著所有原因! Happy New Year!”[133] A number of matters were of note in relation to this WhatsApp message. 671.First, the above WhatsApp message must be read in light of my finding that on 31 December 2013 P picked up the MRI Report and MRI films from Dr J Lam who explained the MRI results to her (see paragraph 530 above). I have found by then P knew the following:
In my view, the MRI results (as evident from the MRI Report and MRI film to which P had access) which Dr J Lam explained to P would only have cemented the medical advice by Dr J Lam and UCH’s DOT that surgery was necessary. Indeed, P’s own case relied on Dr Lam’s opinion that the left patella dislocation at the time of the Accident was more severe and was different from the 1st/2nd Episodes in that inter alia it required surgical treatment. I find it more likely than not that P was advised and she formed the view of such advice and the MRI results as explained to her that the needed surgery could not wait much longer. After all, as Dr Wong opined, P would put her left knee at risk with intensive physiotherapy if she did not first stabilise it by surgery. Thus, even though UCH’s DOT had yet to review the MRI results at the upcoming follow-up on 21 January 2014, I find on balance that by 31 December 2013, P probably came around to the view that it was no longer realistic to have surgery after graduation. 672.Secondly, it was plain that P did not want others (including Kwan, Chau, Tan, the College and her squad mates) to know about the true state of P’s Knee Condition and the reality that she needed surgery and extensive rehabilitation. This was borne out by my findings that (see also paragraph 675 below):
This was also clearly evident from her WhatsApp message on 1 January 2014 which was totally silent on the matters in (a)-(e) above, but which matters she knew by then. Plainly, P had motives of her own for such reticence, which she did not see fit to frankly tell this court. However, it was at least consistent with P’s Personality that (i) whilst P outwardly tried to cling to her hope to pass out and to become an IP (which P said was her dream and which Kwan fairly accepted was the usual dream of young PIs), she knowing what she did as set out in paragraph 671 above inwardly feared her dream was slipping away, and was probably even more pessimistic about passing out within time and/or at all than she was before the Accident when she was already stressed by struggling with PI training, but (ii) she hated to admit to her own frailties and her intellectual/physical weaknesses, and to suffer the sympathies and commiserations from others (including her squad mates, supervisors and family) which she knew she would receive if the extent of her injury and needed surgery/rehabilitation would become known. 673.Thirdly, this was well reflected in P’s WhatsApp message sent to Kwan on 1 January 2014. Such message gave the outward impression, as Kwan (who had no idea that P concealed the matters in paragraph 672(a)-(e) above from him) frankly acknowledged under cross-examination, that P realised she had to improve her learning ability and intelligence and would try her best. Although P stated in the message “…… 我會信守承諾把誠放在首位 ……”, she was plainly not frank and sincere with Kwan, Chau and the College about her left knee condition and the recommended treatment. P’s WhatsApp message on 1 January 2014 was nothing more than wishful thinking to paint herself in good light, but I find on balance that learning about the MRI results, experiencing hobbling around on her walking stick and missing out on some part of PI training actually added gloomy despair to P’s pre-Accident pessimism. I believe that by this time P inwardly felt PI training and the Accident were too exhausting and overwhelming for her, and dreaded that even renewed diligence would not enough to solve her problems, so although she still felt the pull of her dream to pass out and to become an IP, she became increasingly inclined to think she would not pass out, and to contemplate resignation to avoid what she perceived to be the stigma of failing to pass out as a result of her own physical/ intellectual problems and weaknesses in PI training, and to leave on her own terms so as to keep quiet about the seriousness of her left knee problem (which if disclosed would be part of her record with HKPF) and to fashion her own explanation in due course. In my view, P was not looking for help or accommodation. I have found Kwan had told her about the possibilities of Postponement and/or Re-training in case of injury both before and after the Accident, and still she concealed the needed surgery/rehabilitation as medically advised, her MRI left knee, the MRI results and the follow-up appointment on 21 January 2014 for decision on surgery, which were the essential information and advice to enable Kwan/Chau/College to consider suitable accommodation for her. In my view, even if she had not been told of the possibility of Postponement or Re-training, had she wanted help with her PI training, she would have disclosed those matters to Kwan/Chau so that they would have accurate heads up about her injury and needed treatment/ rehabilitation to see what help if any could be fashioned for her particular needs, bearing in mind she knew (a) she could have postponed examination for medical reason and (b) there were squad mates in PI566 from previous intake(s) who re-trained with her squad. In my view and in keeping with P’s Personality, P’s WhatsApp message on 1 January 2014 was nothing more than an outward attempt at cling to her dream to pass out (which by then P pessimistically realised was probably unrealistic) and she distracted and dissembled by concealing her needed surgery/rehabilitation so that any eventual departure would not be expressly branded as due to her own problems. In the circumstances, I am unable to place the weight Mr Sakhrani asked me to put on this message as demonstrating P’s eagerness to carry on with PI training and to pass out. XXIX. 2 JANUARY 2014 674.Kwan resumed duty on 2 January 2014 after his vacation leave. According to the P 1st/2nd WStmts, on 2 January 2014 P participated in PI training at Ap Lei Chau. Whilst other PIs were exercising, Kwan asked to talk to P in private. P claimed Kwan might have started the conversation by asking about her physical condition, but soon afterwards he raised suspicion that she was feigning injury, and asked her why she did so. P explained she walked with a walking stick as recommended by the physiotherapist. She claimed Kwan never advised her about the possibilities of Postponement or Re-training, but he did say it was necessary to wait for Chau’s return from vacation leave before deciding how to handle her situation. On balance, I do not accept P’s evidence. 675.First, P testified under cross-examination that after she returned to College, she probably told Kwan that there was possibility that she would require surgery. Since Kwan was on leave until 2 January 2014 and there was no WhatsApp message about any required surgery, so on P’s case she must have told Kwan this on 2 January 2014. But I have rejected P’s claim that she told Kwan about her needed surgery, so this also undermined P’s account as to what happened on 2 January 2014. After all, it would be most strange to contemplate Kwan accusing P of feigning her injury if she told him her injury might require surgery. 676.Secondly, it was difficult to see how Kwan would accuse P of feigning her injuries when he knew from P’s WhatsApp messages to him and to Chau and from the submitted 2nd and 4th MCs that she actually consulted RTSKH’s AED, PYNEH’s DOT and UCH’s DOT, and the 1st, 2nd and 4th MCs revealed she was diagnosed to suffer from “left knee injury” and/or “left patella dislocation” for which she was given sick leave and recommended light duty and/or avoidance of heavy physical duty for several weeks. I find it inherently improbable that an experienced police officer and supervisor like Kwan would suggest that P feigned her injury when such injury related to bony anatomy (ie left patella dislocation) that was (a) examined by the orthopaedist at PYNEH’s DOT who gave medical advice on causation of the Accident (see WhatsApp message at 11:02am on 20 December 2013 to Kwan – see paragraph 482 above) and (b) subject of objective x-rays (see WhatsApp message at 4:44pm on 20 December 2013 to Chau – see paragraph 488 above), especially in the context that P had earlier told Kwan about the 1st/2nd Episodes and that her left knee could be easily injured again. Further, Kwan also learned from P’s WhatsApp messages that P received physiotherapy treatment (see WhatsApp message at 4:44pm on 20 December 2013 to Chau – see paragraph 488 above) and it was the physiotherapist who recommended use of walking stick (see WhatsApp message at 5:12pm on 20 December 2013 to Kwan – see paragraph 482 above). 677.Thirdly, I find it strange that on P’s case when she was accused of feigning her injuries, she replied by merely referring to her walking stick. By such time P had been advised by Dr J Lam and the orthoapedist at UCH’s DOT that she needed reconstruction/corrective surgery (going so far as to finding out cost of surgery and discussing the time for surgery), and she already had her MRI left knee and learned the MRI results from Dr J Lam. She was also given a knee brace by PYNEH’s DOT, and UCH’s DOT had scheduled “VMO training” pending surgery decision. In my view, P’s natural and logical response would have been to indignantly protest against such serious and what she considered to be baseless accusation by disclosing the above matters, which could have been objectively verified with Dr J Lam, UCH’s DOT and Dr Yiu, especially when on P’s case it was said (a) Dr J Lam advised that surgery was essentially for removal of the loose body in the lateral gutter (see paragraph 517 above), and (b) she had told Kwan there was possible need for surgery (see paragraph 675 above) (but I disagree with such allegations). The fact that on P’s case she kept silent on these matters undermined the veracity of her account, and also underlined her insistence in keeping Kwan, Chau and the College in the dark about the 3rd MC and her needed surgery/rehabilitation, which lent weight to my findings in Part XXVIII above. 678.I have found that by this time P was already contemplating resignation to deal with her needed surgery and rehabilitation, but not wishing Kwan, Chau and the College to know about it (see Part XXVIII above). But as explained in paragraph 51 above, it was after the 1st/2nd Surgeries that P became frustrated and angry with the time and effort it took to rehabilitate and with the hurdles she had to face to find work thereafter (which she had not expected), but instead of facing up to these problems as a consequence of her own choices, she sought to shift blame to Kwan, Chau and Tan for her misery and for what she perceived as having wasted prime years of her life. I am not persuaded by P’s account as to what happened on 2 February 2014, which I find reflected unconvincing reconstruction. 679.On the other hand, Kwan said he never alleged, hinted or otherwise indicated that P was feigning her injury, and he did not ask why she pretended to be injured. On balance, I accept Kwan’s account as to what happened on 2 January 2014 in paragraphs 680-682 below. 680.According to the Kwan 2nd WStmt, when Kwan resumed duty that day, he again asked P about her knee condition as he wanted to have a clear prognosis which would have impact on the time needed for her recovery. Kwan explained under cross-examination that (a) even as an observer P would have to follow other PIs to walk from location A to location B during practical exercises, and/or (b) P would have to go to different buildings/places of the College within its large Premises in Wong Chuk Hang even for classroom classes, so he wanted to know (i) whether P had any ambulation or other problem which he would need to discuss with Chau, (ii) whether there were other suggestions for her welfare, and (iii) whether there were actions or activities that might again cause injury. Kwan further explained under cross-examination that he had come across a similar situation with PI Yeung in his 2012 intake class, and eventually PI Yeung suspended his PI training and was deployed to alternative posting as receptionist in the duty room, so Kwan was keen to learn more about P’s left knee condition. 681.I note the 4th MC showed P was to have light duty for 4 weeks with avoidance of strenuous exercise, marching or foot drilling (E/439). Kwan explained his concern at the time was whether P could take the physical burden of the upcoming training exercises, and whether such training exercises would be harmful to her health condition. Under cross-examination, Kwan said he was concerned about P’s welfare not just because he was her supervisor and/or foot drill instructor, but also because (a) he had been with P through 13 weeks of PI training and (b) Chau had already talked to him about the Standard Procedures in December 2013. On balance, I accept that apart from general concern as between supervisor and trainee for about 13 months, given his experience with PI Yeung and P having previously told him her knee could be easily injured again (as borne out by her left patella dislocation on 20 December 2013), Kwan wished to have more medical information and advice so he could work out what needed to be done with P’s PI training as he had to plan ahead and make arrangements, especially as he knew PI training would become more intensive in the months to come. Indeed, even P acknowledged that Kwan asked her about her physical condition. 682.But according to the Kwan 2nd WStmt, P did not clearly state her prognosis (which I find to be in line with my findings in paragraph 672 above), so Kwan told her if she was unable to walk well, she could consider Postponement or Re-training. Kwan said under cross- examination that he so recommended (which he considered to be sound advice to P) because by then it had been some 10 days since the Accident and he had seen the recommendations for sick leave and light duty in the 1st, 2nd and 4th MCs, so depending on P’s prognosis and her own choice, these were possible ways to accommodate her condition, but ultimately the viability of Re-training option (if P took it up) depended on her injury/recovery and whether by the time of the next intake her left knee/leg could cope with PI training, which she had to complete and pass notwithstanding any postponement. I find on balance that when Kwan mentioned such possibilities/options, P “…… did not show any position …… in her response ……”, and did not repeat what she said in her WhatsApp message sent to him on 1 January 2014. I find this was quite consistent with P’s stance all along that she did not want Kwan, Chau and the College to know about her needed surgery/rehabilitation. Kwan said (and on balance I accept) “…… at that time, well, our conversation …… last very short period of time, just a few words ……” Kwan did not record such discussion with P on 2 January 2014 because he dealt with 45 students each day, and each of them had different issues, so he would just discuss and handle matters with them. According to the Kwan 2nd WStmt, in the end P was arranged to continue with classroom lectures only, and to be an observer for other training with substantial physical demand, eg foot drill exercise and other physical training. In my view, this was unsurprising given P’s reticence over the matters in paragraph 672 above, and such accommodation as arranged was reasonable in light of her reticence and expiry of her sick leave as known to Kwan, Chau and the College. There was no evidence that Kwan was even told about of the upcoming follow-up by UCH’s DOT on 21 January 2014. 683.Kwan said that due to lapse of time he could not recall whether P used any walking aid (a) from the time she resumed training at the end of December 2013 until the beginning of January 2014, and/or (b) on 2 January 2014 when he met her briefly. Mr Sakhrani submitted it was incredible that Kwan would have forgotten seeing P use walking stick even though he knew from the WhatsApp message at 5:12pm on 20 December 2013 that she was issued one (see paragraph 482 above). Since it was not disputed P had been using a walking stick since then, Mr Sakhrani submitted that Kwan must have claimed forgetfulness so as to avoid further questions on it. 684.On balance, I find that after so many years Kwan had forgotten whether P was on walking stick on 2 January 2014. Whilst P was issued with a walking stick on 20 December 2013, by 27 December 2013 P informed Kwan she only had sick leave for 1 day and she returned to the College to continue with PI training on 30 December 2013 albeit on light duty, but as far as Kwan understood she was no longer on sick leave as I have found she did not submit the 3rd MC. By 2 January 2014 it was almost a fortnight after the Accident, and Kwan had been on vacation leave until he resumed duty on 2 January 2014. This was the 1st time he saw P since the Accident. In the above context and bearing in mind Kwan said (and I accept) he and P had a very brief conversation that day, I do not find anything untoward in Kwan not recollecting whether P was on a walking stick. I disagree he said so to deflect further cross-examination. But in my view, as Kwan told P she could consider Postponement or Re-training if she was unable to walk well (see paragraph 682 above), it was likely that she was on walking stick on 2 January 2014. 685.Mr Sakhrani was concerned that (a) Kwan did not mention in his statement evidence that he had spoken to P a few times about Postponement and Re-training, and (b) there were no proper records of the same. He claimed the absence of documentation could not be explained away by Kwan’s claim he had to deal with a lot of PIs, each of whom had different issues, when surely not all PIs had problems with their health condition. He suggested that when P (whom Kwan claimed to have cared for and had monitored for at least 8 weeks, who had sustained a work-related accident and who needed a period on light duty) approached Kwan, he would have arranged to keep proper records to show compliance similar to the obligation under paragraph 47 of HQO12/11. On such basis, Mr Sakhrani urged this court not to accept Kwan’s assertion of having mentioned Postponement and Re-training to P. 686.I disagree, and accept on balance Kwan’s evidence that “…… during that 13-week training, sometimes [Kwan] did talk to [P] …… about the protection and the arrangements of the [College] regarding her health ……” By 2 January 2014, as far as Kwan was concerned, P was no longer on sick leave (as P did not submit the 3rd MC to Kwan), and he had no idea P was recommended to have reconstruction/ corrective surgery by 2 doctors and/or she had MRI left knee with results known. Indeed, even on 2 January 2014, P was reticent about her prognosis and/or her further follow-up with UCH’s DOT on 21 January 2014 for operation decision. All Kwan knew was that she had knee injury and could return to duty but she was to have light duty for several weeks, but he did not know when she could return to full physical training. Kwan knew P was not doing too well in academic and physical training (since the examination results passed through his hands when he handled administration work) and he knew she received modified training because P told him her knee could be easily injured again (and it did in fact injure again on 20 December 2013). He obviously knew PI training would be even more intensive in the months ahead. I find it unsurprising that Kwan reminded P of Postponement and/or Re-training as possibilities for her consideration when she kept her left knee condition, treatment plan and prognosis close to her chest, and it was up to her to decide whether she would consider these possibilities, but if so, she would have to be forthcoming with her treatment plan and prognosis so that suitable accommodation could be justified and fashioned. And yet she showed no position, so no actual accommodation in terms of Postponement or Re-training could be fashioned for seeking prior approval from Chau. In my view, Kwan was just reminding P of the possibilities, but (as Kwan said) it remained her personal choice whether to contemplate these possibilities but she was non-committal. In such circumstances, I find the issue of documentation did not arise because, as Kwan said, he would not have recorded such general discussions with PIs about their different problems. In any event, as explained in Part XXV above, paragraph 47 of HQO12/11 only required proper records of accommodation that “has been provided” to “a HIO” to be kept. But on 2 January 2014, in the absence of sufficient information and advice from P to justify provision of Postponement or Re-training, only light duty was arranged for P, which Mr Sakhrani did not suggest should be documented, and P was not indexed as a HIO. 687.Mr Sakhrani next submitted it was improbable for Kwan to have told P about Postponement or Re-training on 2 January 2014 because P would have taken up such suggestion had it been raised given it was her dream to graduate and to become a IP and her indications that she would work hard, and she would not have suddenly given up her future career with HKPF in the midst of medical issues and no other job or career prospects at that time. On balance I do not accept such submissions, and reiterate my findings in Part XXVIII above. 688.I accept P was in quite a bit of turmoil over this. But in line with P’s Personality, while P outwardly tried to cling to her dream of becoming an IP, she became increasing upset with herself about the Accident (which she understood (a) from the orteropeadist at PYNEH’s DOT was manifestation of her pre-existing P’s Knee Condition, ie her left knee could be easily injured again and it was overwhelmed by her intensive training, and (b) from Dr J Lam and UCH’s DOT that the needed surgery was to deal with the underlying P’s Knee Condition to reduce risk of further dislocation), and plainly she did not want others to know about her physical weaknesses and frailties, and did not wish her need for surgery and extended rehabilitation to be known. In my view, the matters discussed in Part XXVIII above caused her to become even more pessimistic or filled her with despair about passing out, and I find she doubted whether she could pass out knowing that the passing standards which were strict and would not be changed for her. In my view, Mr Sakhrani’s submissions rested on blinkered focus on P’s outward bluster but ignored her inward turmoil. 689.The Psy Report also gave some insight for P told the Psy Experts as follows:
690.From the above, it was obvious that P’s proud personality did not take kindly to sympathetic enquiries and commiserations by her squad mates, which she found tiresome and annoying as she did not want others to know about her needed treatment and prognosis, and she actually became irritable, threw tantrums, manifested uncontrollable temper, had lots of thought, felt uncertain about future, suffered decreased appetite and insomnia, which psychogenic signs spoke tellingly of P’s serious worry about not passing out in her condition. In my view, such serious presentation of her worries was incongruous with her suggestion that she was optimistic and positive about continuing with PI training, and I find such assertion was nothing more than P’s embellishment to bolster her criticisms of Kwan and Chau to the Psy Experts, which criticisms I do not accept. In my view, such was P’s Personality that she would rather walk away and find her own way to explain away such departure, but she would not warm to any Postponement or Re-training, which would have led to more enquires and/or commiserations from her supervisors and squad mates for what she feared would be perceived as her own problems whether in terms of physical condition, physical training and/or academic studies. 691.Regretfully, P was driven by P’s Personality to the above stance. But as Kwan explained under cross-examination, he did not regard P a “problematic” student (given the negative implication of such word) even though (a) it appeared from the academic examination results P was not as strong as most PIs of the squad, (b) she was lagging behind in physical training ranking 12th/13th out of 14, (c) she had heart and knee issues which Kwan found out after she enrolled at the College, and (d) her prognosis for recovery was undetermined when Kwan met with her on 2 January 2014. Kwan said different PIs had different issues, and he regarded P as one who “needed concern”. Kwan disagreed he thought her prospects of passing out were bleak or nil “…… because for her development inside, the teaching and assistance provided by the instructor could affect the final outcome and the school has provided a lot of remedial classes, almost every item has such class. Well, to put a [PI] in a new class is to give him or her more time to develop. Time and her effort can affect the final outcome ……” This was also consistent with Chau’s view. But both Kwan and Chau emphasised that this required determination and perseverance by the injured PI who still would have to meet the strict passing out standards, which would not be altered or changed for any PI. Nevertheless, it must be remembered that as at 2 January 2014, P concealed the matters in paragraph 672 above from Kwan and Chau despite P’s then understanding of her condition as set out in paragraph 671 above, so Kwan’s observation must be read accordingly. I have also found that by 2 January 2014, P was in serious worry and pessimism as explained in paragraph 690 above. XXX. 3 JANUARY 2014: DISCUSSION BETWEEN KWAN AND CHAU 692.According to the Kwan 2nd WStmt, Kwan reported P’s updated situation to Chau in the morning of 3 January 2014 when Chau returned from vacation leave. Under cross-examination, Kwan said their conversation took place in the morning, but he had no impression how long the conversation lasted as it happened a long time ago. Between 20 December 2013 and 3 January 2014, Kwan had reported to Chau over the telephone about his WhatsApp messages with P and P’s sick leave, but did not send any particular WhatsApp message to Chau. P’s MCs were given to Chau for review, but due to lapse of time Kwan could not confirm how they were given to Chau for review, but normally the squad prefect would show the MCs to Kwan, and then they should be shown to Chau as CI. Anyway, Kwan had already told Chau about P’s sick leave before 3 January 2014. 693.Chau agreed that by 3 January 2014 he already knew (a) P was diagnosed with left patella dislocation injury, (b) she had about a week’s sick leave, and (c) P’s MCs recommended avoidance of heavy physical duty for a number of weeks. Whilst Chau was on vacation leave, he and Kwan probably exchanged some greetings and some initial discussion about PIs, but they left the details for his return to work. Chau could not remember how many discussions he had with Kwan about P/Accident whilst he was on leave, but “I think if there was such discussion, once or twice”. 694.Chau could not remember whether he was told Kwan had discussion with P on 2 January 2014, but he believed Kwan might have discussion with P whilst he was on vacation leave. According to the Chau 2nd WStmt, Chau resumed duty on 3 January 2014 after his vacation leave. The first thing he did that morning was to follow-up on matters that happened during his vacation leave, and amongst other matters (details of which Chau no longer had any recollection) he thoroughly discussed P’s case with Kwan, including the Accident, her injury, her updated progress of recovery and her overall difficulties in PI training. When asked whether Kwan told him he had told P the possibilities of Postponement and Re-training, Chau said in evidence “I believe so” and considered this good practical advice, but he could not remember whether he asked Kwan about P’s response. After his discussion with Kwan, Chau wanted to interview P to learn what she wished to say about the Accident, and to see if she needed further assistance according to the Standard Procedures. So on the same morning, Chau had an interview with P at his office at Room 406, New Teaching Block at the Premises. 695.Under cross-examination, Chau could not remember the minor details as to whether P submitted further MCs. He explained that even though he would be informed when a PI requested sick leave, he would not necessarily receive the relevant MCs quickly (but he would have sight of them eventually). Chau believed he had seen the 1st, 2nd and 4th MCs (which were issued by government doctors and which he had a better impression), but he had no impression of the 3rd MC. But upon noting that Part 1 of the OSH Accident Report Form (which he prepared on 14 January 2014) stated P had sick leave on 20-28 December 2013, but the sick leave granted under the 3rd MC was up to 3 January 2014, Chau said in re-examination that he probably had not seen the 3rd MC otherwise he would have put down in the OSH Accident Report Form that P’s sick leave was up to 3 January 2014. XXXI. 3 JANUARY 2014: P’s CASE (a) 1st meeting with Kwan 696.According to the P 1st WStmt, on 3 January 2014, P did not participate in running exercise with other PIs in view of (a) the recommendation for light duty in the 4th MC and (b) the fact she had to walk with a walking stick. When Kwan saw her standing/watching other PIs ran, he scolded her (a) saying she would not be suitable to take up the job of an IP as she was seen using a walking stick by other PIs and PC trainees undergoing training, and (b) saying he thought P was feigning injury and warned her feigning injury would result in imprisonment. P claimed she simply followed the physiotherapist’s recommendation in using a walking stick. In the P 2nd WStmt, P claimed Kwan never explained to her the procedures for handling a PI who requested to resign. She claimed she only injured her knee cap, and the doctor just recommended her to avoid heavy physical duty, strenuous exercise, marching and foot drilling for around 4 weeks, so she did not have any reason to suddenly resign voluntarily. On the other hand, Kwan said he had no impression that when P came to speak to him on 3 January 2014 indicating she wanted to resign (see Part XXXII(b) below) he had seen her earlier that morning as an observer with a walking stick during running exercise, but he denied P’s above evidence. 697.On balance, I do not accept P’s evidence. In my view, for similar reasons as set out in Part XXIX above, I disagree that Kwan would accuse P of feigning her injuries or that P would have simply replied about her walking stick. This was especially so when, on P’s case, Kwan had made similar accusation the day before. On P’s case, even though P was respectful towards Kwan and Chau, she claimed to lay much store with “integrity”, and would have been indignant with such baseless accusation, and having mulled over such unfair and groundless criticism overnight, it was quite implausible for P to again respond by simply pointing to her walking stick and saying it was prescribed by the physiotherapist (which reply similarly made the day before did not stop Kwan from continuing with his accusation) when she knew 2 doctors had recommended surgery, she already had MRI left knee with results known and she was due for operation decision at the follow-up with UCH’s DOT on 21 January 2014. But quite clearly but consistently (see paragraph 672 above), P for reasons of her own consciously decided to hide the needed surgery/rehabilitation from Kwan, Chau, Tan and HKPF. This was borne out by her blithe suggestion in paragraph 10 of the P 2nd WStmt that the doctor just recommended avoiding heavy physical duty, strenuous exercise, marching and foot drilling for around 4 weeks as reason for her allegation that she had no reason to resign (see above paragraph). As regards P’s state of mind on 3 January 2014, I reiterate my findings in Part XXVIII and Part XXIX above. (b) Meeting with Chau 698.According to the P 1st WStmt, on 3 January 2014 Chau (who resumed duty after his vacation leave) had a meeting with P at his office. No other person was present. Chau alleged (a) P feigned her injuries, and (b) she was seen by other police officers to be able to walk very fast when she was alone, which was tantamount to claiming P was dishonest and querying her suitability for taking up the job of an IP. Chau asked P “Do you have ‘integrity’?” in a tone that suggested she had none, and then gave her 2 options, ie (i) to resign voluntarily at once or (ii) to stay with HKPF in which case she would be strictly investigated to check whether or not she feigned injury. P’s only thought then was that she would surely have obstacles in her future police career if she were subjected to investigation so soon after joining HKPF, so she considered she had no choice but to voluntarily resign. At that time, P did not have much time to make her decision, and she cried thinking she had no hope or future with HKPF. She was respectful to Chau/Kwan who were her supervisors/ teachers at the College, and dared not retort against what they said. After that, Chau used his telephone, and then told her to go and see Kwan who would handle her resignation. According to the P 2nd WStmt, Chau never asked P in detail regarding the progress of her recovery, her training progress after the Accident, or how to speed up her recovery. 699.According to the Psy Jt Report, P gave a similar account to the Psy Experts as follows:
700.Again, I do not accept P’s account. For the same reasons explained in Part XXIX and paragraph 697 above, I am unable to see why an experienced police officer like Chau (with whom Kwan shared information about P’s situation) would suggest P feigned her injuries. Knowing that P had consulted and received treatment at RTSKH’s AED, PYNEH’s DOT and UCH’s DOT, that P was still on light duty on 3 January 2014, that there was as yet no concrete information about P’s prognosis even though (as far as Chau understood) she was no longer on sick leave (which was 1 of the reasons why Chau wanted to see P on 3 January 2014), I find it quite improbable that Chau would threaten P with investigation to check whether or not she feigned injury, especially when he must have known objective evidence of P’s injury lied in her MNR (including x-rays) with the public hospitals and the attending doctors and not under his, Kwan’s or HKPF’s control. 701.On balance I do not believe P’s claim that she was overwhelmed by Chau’s accusation and threat such that she cried and succumbed to resigning voluntarily for fear of investigation as to whether or not she feigned her injury. Whilst I agree that P was respectful to Kwan and Chau as assistant CI and CI respectively, I do not accept she would not speak out or at least try to do so against what she perceived to be unjust, unfair and groundless accusations that would ruin her dream of passing out and becoming an IP, especially when on her case (a) she set much store with “integrity” for herself, and (b) she was secure in her knowledge that she had objective medical support given the medical advice by Dr J Lam and UCH’s DOT that recommended surgery as supported by x-ray that showed loose body in the lateral gutter (as told by Dr J Lam) and the MRI results. Further, on P’s case, when Kwan accused her on 2 consecutive days of feigning her injury, she spoke up and told Kwan her walking stick was prescribed by the physiotherapist. P did not explain why she did not at least reply to Chau in a similar way. In my view, even on P’s case, the suggestion of investigation into whether or not she feigned injury should have excited an indignant but complete response that 2 doctors had recommended her to have reconstruction/ corrective surgery, and one of them even said surgery was necessary for removing a loose body in the knee and the other said the suggested surgery was corrective to decrease chance of dislocation (especially when P claimed she already told Kwan she might need to have surgery). In my view, P for her own reasons was quite careful not to let Chau know about the needed surgery and extensive rehabilitation for muscle strengthening thereafter. (c) 2nd meeting with Kwan 702.According to the P 1st WStmt, P went to Kwan’s office after seeing Chau, and when she reached Kwan’s office, he instructed her to go to a nearby printing/store room where there was no one else present. There he took a few sheets of A4 paper and asked P to write a resignation letter. P wrote she “resign due to health reasons” as her left knee was injured at that time. But Kwan disagreed and said she should write that she voluntarily resigned due to personal reasons, which he claimed would be for her own good. Kwan took away the letter on which she wrote “resign due to health reasons”, and gave her another sheet of A4 paper to write the resignation letter again. Kwan did not mention P could use the computer at WBB to type/print her resignation letter. P claimed she thought she had no choice, so she followed Kwan’s instructions and wrote/signed another resignation letter as follows (ie the Resignation Letter, E/448):
After P handed the Resignation Letter to Kwan, he told her to leave. He did not give her a copy of her signed Resignation Letter, and did not discuss anything else with her, including how her entitlement to paid annual leave would be handled. On the other hand, Kwan disagreed with P’s case described above.[134] 703.On balance, I do not accept P’s account. As explained in Part XXVIII above, by 2-3 January 2014 P came to think the needed reconstruction/corrective surgery could not wait much longer, and although she was outwardly positive in returning to the College to resume PI training (albeit on light duty), she became very despondent and dismal that she might not pass out, but she was not keen to let others know about her condition and likely treatment needs, so she was in some turmoil over her inclination to resign. I find on balance the meeting with Chau caused P to think holistically about her situation, including her medical condition (which she knew would require surgery to be followed by extensive rehabilitation for muscle strengthening which process would be tough), her progress in PI training to date (which she knew was weak despite her hard work and it was stressful for her), and the intensity of PI training in the months ahead until final examinations (and she felt very pessimistic in meeting the passing requirements) together with her strong dislike for making known her needed treatment/rehabilitation and her uncertain prognosis, and there might well be other reasons that P chose not to tell the court. I find on balance that it was a combination of all those factors that tipped P over from thinking her dream of becoming an IP might be unreachable into a firm decision to voluntarily resign. I find she gave the Resignation Letter stating (a) she did so for personal reasons, and (b) her resignation was to be immediately effective from 3 January 2014 (which, in my view, explained the accommodation by HKPF’s Personnel Wing to arrange immediate exit interview for her). I also find on balance that once P made up her mind to leave, she saw no point to delay which would lead to even more enquiries or commiserations that she found tiresome/ annoying and did not want to face. In any event, the upcoming follow-up at UCH’s DOT on 21 January 2014 for operation decision was just about 2 weeks away. 704.Given P’s reluctance to disclose her prognosis, the needed surgery and consequent rehabilitation, I doubt she would have given “health reasons” as her reason for resignation. I find it more likely than not she did not wish to disclose the substantive reason for her resignation to HKPF, which in my view was not simply for health reasons but for the various factors discussed above. In my view, P chose to state her reason for resignation as “personal reasons” because she did not want to be asked further about her left knee condition and did not want to disclose the needed surgery for her left knee, and it would of course be easier for her to flexibly make out a reason her departure (if required to do so in future) in best light. (d) Meeting with Tan 705.In the P 1st WStmt, P claimed that according to Chau’s instructions she went to see Tan to sign her Record of Service (E/449-459). The meeting was a short one, and P/Tan just discussed the contents of the “Record of Service”. A female chief inspector was present, but P was unsure about her name except she had a vague recollection that it was Jessica. Under cross-examination, P said Tan was a very senior officer, so as a PI she had little opportunity to have contact with him. This was probably the first time she saw Tan. 706.The Record of Service was in a standard form. According to Note (1) of the form, “[this] form should be completed by department/ grade management. Heads of Department/Grades should complete Parts N to D and then request the officer who is about to leave to fill in Part A. The officer responsible for completing the remaining Parts E – G of the form should sign in Part H to confirm the correctness of the data recorded ……” Part A of the Record of Service set out P’s personal particulars, including her name, identity document, date/place of birth, and academic qualifications, and P signed and dated Part A. Part B of the Record of Service set out P’s substantive appointment as IP on 7 October 2013 with salary at police pay scale point 25, and her departure from service at last posting as IP on 4 January 2014 was for “Resignation Reason Not Stated”. Part C set out P’s posting as inspector who was a recruit under training. Part E set out Tan’s assessment of P’s overall performance as follows:
Tan then signed in Part H confirming that the Record of Service was completed on 3 January 2014. 707.All the information in the Record of Service (save for P’s signature and date as well as Tan’s signature) were computer printed. According to P, Tan completed the exit interview like an administrative procedure. According to the P 1st WStmt, P did not request for change to be made as to the reason for leaving HKPF in the Record of Service because Kwan had already instructed P to resign voluntarily for “personal reasons”. P said under cross-examination that “…… for the completion of this so-called administrative procedure, well, this document was based on the resignation letter that he asked [P] to write. Well, the whole story was for the completion of the administrative procedure. Well, from the beginning to the end, [P] had no choice but [P] was forced to resign ……” 708.P said under cross-examination that she did not complain to Tan (who was much senior to Chau/Kwan) about the conduct of Kwan/ Chau because on 3 January 2014 she still wished to try her best to continue with PI training, but she was then alleged to have feigned injury and was asked to resign, so she was shocked/confused, and did not know what to do. “So at that time [P] could not think of anything and [P] also worried that [she] did not know what [Kwan] and [Chau] were going to do, because they said, “Complete quickly and then pack up the things quickly and then go quickly” ……” 709.As a starting point, the exit interview with Tan was arranged by HKPF’s Personnel Wing (see Part XXXII(c) below), and I am not persuaded it was Chau who instructed P to see Tan to sign her Record of Service. I agree with P the exit interview was brief and administrative in nature with Tan and P going through the contents of the Record of Service and P signing the same. P had a copy of the Record of Service either then or later because she said she would have shown the Record of Service to prospective employers during job interviews after the 1st/2nd Surgeries and her sick leave (see paragraph 62 above). But I do not believe P when she claimed she did not complain to Tan and did not correct the information in the Record of Interview (ie that she resigned voluntarily for personal reasons) because (a) Kwan already instructed her to state in the Resignation Letter she resigned for personal reasons (which allegation I have rejected in Part XXXI(c) above), (b) she was shocked/confused and did not know what to do because on that day was she still eager to continue with PI training but was alleged to have feigned injury (which I have rejected in Part XXXI(c) above), and (c) she was worried she did not know what Kwan and Chau would do because they told her to pack up and leave quickly. In respect of (c) above, even on P’s case, I could not see what more Kwan/Chau would do when on P’s case they had made her prepare/sign the Resignation Letter, had required her to leave the College as soon as possible, had not briefed her on her rights and entitlements, and had caused the matter to proceed as far as an exit interview (which was arranged by HKPF’s Personnel Wing and was a usual procedure for departing PIs who had resigned) which made her departure a reality. 710.As far as P knew, (a) Tan was much more senior than Kwan/ Chau, (b) he did not accuse or threaten her and only went through the Record of Service with her administratively, and (c) there was also a female CIP in the room. Despite the uncertainty in P’s stance (see paragraph 114 above), P did not say in her evidence she thought Tan was in collusion with Kwan and Chan to force her out of the College. Further, on P’s case, with her emphasis on “integrity”, P would have been indignant about Kwan’s/Chau’s accusations when she obviously had medical advice, MCs, hospital (or even private) x-rays, MRI Report and MRI films as well as upcoming medical appointment to back up the genuineness of her left knee injury. It would not have been complex to tell Tan that she actually wanted to remain with the College and that she had medical advice on surgery to show her injury was genuine. On her own case, this would have been a last ditch effort to keep alive her dream to continue with PI training, to pass out and to become an IP (which she said was important to her), and I do not accept her explanations for remaining silent before Tan. This also undermined P’s claim for duress and undue influence against Kwan and Chau. (e) 3rd meeting with Kwan 711.In the P 2nd WStmt, P agreed she met Kwan again after her meeting with Tan, which was mainly to check if she had properly tidied up and returned the stores belonging to HKPF. P said Kwan was only supervising / urging her to leave the College as quickly as possible. I accept on balance that Kwan was responsible for supervising P’s return of the stores to HKPF, but I disagree he was pushing her out. I find it was to accommodate P’s request in the Resignation Letter to leave immediately. 712.According to the P 2nd WStmt, P disagreed her resignation was an informed decision. She emphasised Kwan, Chau and Tan never told her about her rights in relation to injuries whilst at work, and Kwan did not tell her whether she had any welfare benefits. She claimed that if she had not gone to LD after leaving her employment, she would still not have known about her rights. On the other hand, Kwan under cross- examination denied (a) he failed in his duty to protect P under the Standard Procedures and/or HQO12/11, (b) he failed in watching over her welfare, (c) he failed to provide her reasonable accommodation expected of the College, and (d) he failed to even find out the reason for her resignation. I will deal with these matters in Part XXXII and Part XXXV below. (f) Aftermath 713.According to the P 1st WStmt, after her meeting with Tan, P returned to WBB to pack her personal belongings. P claimed at/about 2:45pm she asked Kwan how she could maintain a living as she still had to recuperate in the next few months and whether she had any welfare benefits (“…… 於大約下午2時45分, 我曾詢問關SIR, 我之後的幾個月還要養傷, 那麼我如何生活。我詢問他會不會有任何福利 ……”), but Kwan told her to direct her enquiries to Chau. So P went to see Chau at his office (with no one else present), but he did not respond to her inquiry about whether there would be any welfare benefits for her. He said he did not hope to see her again, and told her to leave the College immediately. P had the impression he said something like “[Chau] 教咗幾個班, 都未見過 [P] 啲咁嘅幫辦嘅”.[135] As Chau told her to leave the College immediately, P hurriedly packed her personal belongings so she could leave on that day. But Kwan denied such allegations. 714.On balance, I do not accept P’s above account. On P’s case, Kwan and Chau were her supervisors who accused her of feigning injury, threatened her with investigation if she did not resign, and pushed her out of the College by forcing her to “voluntarily” resign. It was quite strange that have fallen in to Kwan’s/Chau’s unreasonable and groundless demands and well knowing their motive was to push her out of the College to get rid of her (which evil scheme succeeded with the exit interview by Tan that completed the procedures for her departure), P would then have approached Kwan and Chau who were the culprits who forced her resignation to enquire about her means of living and welfare benefits during her rehabilitation after her forced resignation at their hands, and not direct such enquiries to Tan who was more senior and who conducted her exit interview, and who unlike Kwan and Chau did not accuse or threaten her at the time. In my view, this was conscious embroidery of evidence on the part of P in a poor attempt to bolster her case that she was unaware of and Kwan/Chau/Tan did not tell her of her rights, entitlements and welfare benefits even upon direct enquiry. 715.It was also interesting to note P claimed to have asked Kwan about her means of living during subsequent “months” of rehabilitation (ie “我之後的幾個月還要養傷”), but paragraph 10 of the P 2nd WStmt claimed P would not have resigned voluntarily when she only injured her kneecap, and the doctor just recommended her to avoid heavy physical duty, strenuous exercise, marching and foot drilling for 4 weeks (see paragraphs 696-697 above). Plainly, P dissembled in such allegation as she knew much more about her prognosis and treatment needs, and I have found she knew she needed surgery and extensive rehabilitation thereafter but chose not to tell HKPF. This undermined her overall veracity. (g) 4th meeting with Kwan 716.P’s 3/1/14 Stmt was taken by Kwan from 3:15pm to 3:45pm on 3 January 2014 at Room 120, Administration Block, Foundation Training Centre (ie the College) with P’s personal particulars and P’s signed confirmation[136] (countersigned by Choy who was present as witness) set out at the top part. The narrative body of the 3/1/14 Stmt was the original non-amended version set out in paragraph 459 above. 717.According to the P 1st WStmt, at/bout 3:00pm, Kwan asked P to give a statement. When P arrived at his office, he showed P an English statement on police form he had already prepared. He asked P to confirm whether the contents he had written were correct. P claimed by that time she had already resigned, so she thought whatever she said would not have any meaning/use, so there was no need to correct the errors in the contents of the 3/1/14 Stmt (which contents she knew were not completely accurate). P further claimed at that time she did not know her rights upon sustaining a work-related injury, and in her further meeting with Chau (see paragraph 713 above) he appeared to suggest P would not have any welfare benefits. P signed the 3/1/14 Stmt (E/466). 718.Under cross-examination, P claimed “…… [upon] entering in there, the statement was typed out and then it was said that after reading it, sign it, and that’s it. Well, that morning [P] was forced to resign [ie the Resignation Letter] and then in the afternoon [P] was forced to sign this document [ie the 3/1/14 Stmt] ……” She did not read the contents of the 3/1/14 Stmt in detail, but noted “…… the contents stated that [P] was running fast, [P] hurt [herself]. In short, all of these are not true ……”, “…… at that time [P] glanced through it and the contents -- all of the contents said that everything was caused by [her], but in fact it is not true. On that morning, [P] was already forced to resign and then such a document was prepared. All along they said that [P] pretend to have suffered from injury ……” Nevertheless, P acknowledged (a) she was allowed to read it, (b) Kwan read out and explained the contents to her, (c) she was told she could correct, alter or add anything she wished and (d) she read the printed confirmation[137] before she signed underneath it and also at the bottom of the statement, but she agreed to the contents because “…… [P] know that it was useless, even [P] correct it. The whole story was laid out already ……” and “…… [P] had no choice ……” 719.P said Kwan did not give her a copy of the 3/1/14 WStmt after she signed it. In the P 2nd WStmt, P said at that time she did not know she was entitled to ask Kwan for a copy of the 3/1/14 Stmt, and he also did not suggest a copy be given to her for record. Even so, P agreed that at the time when she signed 3/1/14 Stmt she knew at least some of its contents were not true, eg when Kwan explained the contents to her and she glanced at the contents she realised the 3/1/14 Stmt insofar as it stated she was running fast and she had hurt herself were not true. When pressed on why she did not approach HKPF or the College during 2014-2017 to ask for correction, P testified that “…… I did try to do that …… I don’t remember the exact date. It seems to be 2015 ……” when she tried to “…… get back the [3/1/14 Stmt] through 1823 ……”, ie a general government hotline, but when pressed under cross-examination she admitted she did not even tell the receptionist at the hotline she wanted to “get back [3/1/14 WStmt]” to correct the errors therein or asked to be put through to the relevant contact at HKPF. But after this “failed attempt” to retrieve the 3/1/14 Stmt, P did not do anything else until the Director of Legal Aid assigned solicitors to act on her behalf, and she left it to them to deal with the matter. 720.P said it was probably in September 2017 that her solicitors requested HKPF for copy 3/1/14 Stmt (E/466), and she obtained a copy on 12 September 2017. P claimed under cross-examination that “…… only by that time, after [she has] known about the details, then [she] did the correction through [her] lawyer ……” In re-examination, P claimed she did not remember the fine details of what was written in the 3/1/14 WStmt, but when she saw the details in September 2017 she wished to revise it. So on 30 October 2017, P’s solicitors wrote to P C Woo & Co enclosing P’s letter dated 7 October 2017 (see paragraph 458 above, E/473) with her revised 3/1/14 Stmt being the amended version in paragraph 459 above (E/474-475), which she prepared herself in October 2017. But in P’s amended version of the 3/1/14 Stmt, she did not change the confirmation at the end of such statement (ie “[the] statement consisting of one page, each signed by me, has been read over by me, and I have been told that I can correct, alter or add anything I wish”). When pressed on why, when she claimed that on 3 January 2014 she was forced to resign in the morning and forced to sign the 3/1/14 Stmt in the afternoon, she did not clearly state she did not agree to and was forced to sign the 3/1/14 Stmt, P explained under cross-examination that “…… [well], because at that time what was in [her] mind was to describe what happened during the Accident in a precise manner ……” 721.On balance, I find P’s above account unreliable. Even on P’s own case, the 3/1/14 Stmt was read out to her, she was allowed to read the 3/1/14 Stmt (which stated she could alter or change anything she wanted), and she knew the contents were not completely accurate, and yet she did not ask to correct it at the time and/or, more importantly, after she left HKPF (when she was no longer under Kwan’s/Chau’s alleged duress and/or undue influence). 722.P claimed she simply signed the 3/1/14 Stmt without asking for errors therein (which she knew) to be corrected there and then because she thought it was useless as “the whole story had been laid out”, as all along Kwan/Chau had accused her of feigning her injury, and as she had succumbed to their duress and undue influence to resign. But if she considered it was so pointless to raise any matter with Kwan because he forced her to resign and pushed her out of the College by accusing/ threatening her, it was strange even on P’s case that she would take the initiative seek out Kwan and Chau after she wrote/signed the Resignation Letter at Kwan’s behest to ask them about welfare benefits to tie her over “several months” of rehabilitation (see paragraph 713 above). I find P’s version of events inherently implausible. 723.Although P claimed she was not given a copy of the 3/1/14 Stmt, it was plain even on P’s own case that after she left HKPF Kwan’s/Chau’s alleged duress and undue influence ceased and she was no longer supervised by them or by Tan. Knowing the 3/1/14 Stmt contained errors, it was strange on P’s own case that she did not seek to correct the untruths therein that she noticed on 3 January 2014 or at least ask for a copy of the 3/1/14 Stmt by, say, writing to the College/HKPF. She claimed she did so in 2015 by calling the government hotline 1823, but she did not say why she would suddenly do so a year later. I find on balance that more likely than not P made this up under cross-examination to justify why she knew some contents of the 3/1/14 Stmt were untrue and yet did nothing about it until 3½ years later. She could have easily written to the College/HKPF (as she did in 2017 – see paragraphs 458-459 above) rather than calling the government general hotline (and not even HKPF/ College enquiry telephone number) and not even mentioning her intention of getting a copy of the 3/1/14 WStmt and/or correcting some errors therein to facilitate the receptionist to direct her to relevant contact at HKPF for such purpose. 724.Then, having made such alleged effort to seek a copy of the 3/1/14 Stmt in 2015 (which suggested P was aware of a need to correct the alleged errors in such statement), P did not explain why she left the matter in abeyance until 2017. I note P commenced the present action on 13 December 2016, but P did not plead any claim in respect of the post-Accident events in the indorsement on the writ of summons. I find this quite strange because of the seriousness of the allegations now raised against Kwan, Chau and Tan, and on her case she must have the strongest impression of being forced out of College by Kwan’s/Chau’s wrongful accusations and misconduct. Indeed, in the course of cross-examination, P claimed she would get emotional and could not control her mood “every time when [she] talked about what happened at the time ……” But all P could explain under cross-examination was “…… because for all the legal documents and the legal procedures, [P] hand them over for [her] solicitors to deal with them ……”, and claimed to have no impression she first pleaded the post-Accident events in the SoC on 30 January 2018. If P told her solicitors about the post-Accident events, it was not easy to understand why it was not expressly averred in the writ of summons. But if she did not tell her solicitors, it raised even more concern about the veracity of her present allegations in relation to the post-Accident events. I find it was P’s poor attempt in line with P’s Personality that in a tight corner she would distract and dissemble by blaming others if she could, first on the unhelpful government general hotline and then her solicitors who dealt with her legal papers. Further, she also did not take the useful opportunity in 2017 when she amended the 3/1/14 Stmt to make clear in the covering letter of 7 October 2017 or in the body of the amended 3/1/14 Stmt annexed thereto that she did not agree to sign such statement with errors therein and only did so because of then perceived futility in giving correct information when she was accused, threatened and forced to resign, which would have justified her need to amend the 3/1/14 Stmt. The silence was loud, and given the seriousness of her allegations against Kwan and Chau for forcing her out of the College and for making her sign documents that she did not agree to, her explanation that in 2017 (when she was no longer subject to duress and undue influence, when she had the benefit of legal advice and when she had commenced the present action against D) she just focused on spelling out accurately what happened during the Accident served to undermine her veracity in relation to her account about how the 3/1/14 Stmt came into existence, ie she was so shocked/confused by Kwan’s/Chau’s evil scheme against her that she signed the 3/1/14 WStmt that she knew contained untruths. 725.For all the reasons set out above, I reject P’s following account to the Psy Experts (as recorded in the Psy Jt Report) save that she was upset about her departure due to her needed surgery and pessimism about passing out:
(h) Summary 726.On balance, I reject P’s account of the post-Accident events and in doing so I take into account the discussion and analysis of D’s case and Mr Sakhrani’s submissions (see Part XXXII below). On balance, I find in favour of D’s case/evidence. I further find that after P left HKPF and faced post-surgery rehabilitation that took longer and was more difficult than P expected and also after she had a difficult time in finding reasonable work, she became frustrated, angry and depressed, and convinced herself that HKPF (and hence Kwan, Chau and Tan) was to be blamed for her misfortunes rather to squarely meet the pain of facing up to her own problems and her own choices. Regretfully, her allegations had a ring of untruth, and I reject them. XXII. 3 JANUARY 2014: D’s CASE (a) Meeting between Chau and P 727.According to the Chau 1st/2nd WStmts, on 3 January 2014 Chau had an interview with P at his office at the Premises. Chau said under cross-examination he did not remember whether P walked into the interview with him using a walking stick. According to the Chau 2nd WStmt, in accordance with the Standard Procedures, the purpose of such interview was for Chau to ascertain the following matters directly from P: (a) P’s progress of recovery, (b) progress of P’s training in all aspects after the Accident, and (c) P’s views/suggestions on ways to facilitate her recovery. This echoed the Chau 1st WStmt which alleged that Chau and P generally discussed 2 issues in such interview: (i) P’s performance in PI training, and (ii) P’s medical situation. 728.According to the Chau 2nd WStmt, due to the long lapse of time, Chau did not recall what was actually said between him and P during such interview when, after all, Chau in the course of his daily work dealt with many PIs and interviewed them individually. But Chau was certain there was nothing out of ordinary in respect of his interview with P, and he always dealt with similar cases in accordance with the Standard Procedures with ascertaining P’s latest health situation and evaluating P’s training on the whole as the only goals of the interview. 729.Under cross-examination, Chau reiterated “…… [he did] not remember the conversation [during the interview with P] in detail but [he had] impression as to the areas which [he] have talked with her ……”, ie the 3 purposes in paragraph 727(a)-(c) above, which essentially boiled down the 2 issues in paragraph 727(i)-(ii) above. Chau did not know P had communicated with Kwan about her wish to collect written test notes and course materials to study at home during sick leave, and he could not remember whether P told him she was studying for forthcoming academic assessment/examination, but he fairly agreed the next academic assessment for PIs was sometime in January 2014. 730.Chau said under cross-examination he raised the matter of P’s medical condition with P during the interview to find out how she was doing and her progress of recovery, but by the end of such interview he only had a general idea about P’s medical condition (ie she injured her knee in December 2013 and there was some sick leave). But Chau believed P expressed to him her physical condition was troubling or frustrating to her, and “…… [Chau and P] had talked about the contents of the forthcoming training. [Chau] believe [P] taking into consideration of her injury and the forthcoming training which would be very demanding, [Chau] believe that she did worry as to whether she could complete the training because from [Chau’s] experience of this work, …… the squad which [P] was in is [his] third squad. At that time, it was around the 10th week of training of [P] and the forthcoming training would be getting more and more demanding. So it is very likely that [P] would be worrying as to whether she could complete the training ……” 731.Chau disagreed under cross-examination that P’s real limitation was merely on the physical side due to the recent Accident for which she was unable to take on heavy physical tasks. According to the Chau 2nd WStmt, as far as Chau could remember and having reviewed P’s performance records that were retained by HKPF, P’s performance during the PI training was below average. Chau was aware that by the time of the Accident P was a marginal PI, and from his experience he thought she was unlikely to pass out (or at least in the current squad) due to her academic and physical limitations. He further explained under cross-examination that P was worried and it was not just because of the Accident:
732.Mr Sakhrani suggested that Chau in saying on the one hand P was unlikely to pass out and in saying on the other hand that from his experience he had seen other PIs in similar situation still passed out at the end (but only if they had made their efforts), he was just making a poor attempt to justify why it was said P wanted to resign voluntarily and was not pushed out. He also complained that Chau did not say in his statement evidence he “believed” P was worried that she could not cope with the forthcoming training even though Chau devoted a section to deal with P’s performance being below average. But having considered such contentions against the totality of the evidence, I am unable to read anything sinister into Chau’s evidence. 733.Chau, who was the CI of PI566, who was in charge of P’s PI training and who knew P’s performance and progress in PI training, gave a reasoned basis (and not just a bare assertion) for why he thought P might not be able pass out even though experience told him other PIs might have passed away. Chau made clear that other PIs in the similar situation would only pass out if they made further determined efforts towards that goal. But Chau knew in the past weeks of PI training P was already giving her all and trying her diligent best (studying up to 2am and having inadequate sleep/rest), but her academic and physical training performance was still weak, which raised the question what more effort could P have put into PI training. Mr Sakhrani suggested that passing out was not remote because Kwan and Chau said there were remedial classes for very course item. But P already had remedial class for physical training (eg additional/extra training), and she was not positive about it because she thought Kwan picked on her. In my view, I find that in line with P’s proud personality she would not take kindly to remedial courses as she would perceive that as picking on her and displaying her weaknesses (which she disliked as a result of P’s Personality). More importantly, Chau had the impression P had her own considerations and she worried she might not complete the training. In fact, Chau was not alone in thinking P had difficulty in passing out. P herself told the Psy Experts that even before the Accident she “was worried that she will fail the physical examination at the end of the course” and she felt gloomy, and after the Accident whilst waiting for medical treatment at RTSKH’s AED she worried that she will be unable to complete the course in time. Again, Mr Sakhrani’s submissions focused on P’s dream and the possibilities available for PIs generally without sufficient focus on the realities of P’s situation and P’s own concerns. 734.In my view, by 3 January 2014, Chau had been P’s CI for 13 weeks, and was well aware of her lacklustre performance in both academic and physical training despite her hard work, so he was well aware of her hardships in past PI training, and her worries about not coping with forthcoming PI training. As Chau pointed out, PIs would talk to their seniors and would have realised that PI training in the forthcoming months would be much more intensive than the initial third of the Course, and that the College and its CIs adhered to strict standards. Indeed, I have found P very much worried about whether she would cope with PI training and/or would pass out. I have found that such was P’s Personality with brittle pride and insecure sensibilities that she would outwardly try to cling to her dream to be an IP, but she would inwardly despair in pessimistic gloom that she might not pass out. And relying on P’s outward stance without taking into her inner turmoil would not give insightful understanding of P’s resignation. 735.Mr Sahkrani next found Chau’s inability to recollect what was actually discussed in his interview with P suspicious (in contrast to Chau’s recollection that Kwan recounted to him he had raised with P the possibilities of Postponement and/or Re-training – see paragraph 694 above), and suggested this was Chau’s unreliable attempt to avoid remembering things that might not be in D’s favour. But I note Chau was first asked to recall these matters some years after January 2014 and he had since left the College and was attached to other police formations. Even during his time at the College, P was his 3rd squad of PIs and he also taught other squads after PI566. Plainly, he had dealt with many PIs and interviewed many of them individually. Further, there were quite a few PIs who resigned, fell back squad or failed to pass out, and Chau would have seen each of them with their own individual issues (including physical injuries). The fact he remembered the gist and not the fullness of what passed between him and P at the interview was, in my view, unremarkable. 736.Mr Sakhrani argued that since Chau accepted P’s recovery prognosis was undetermined as at 3 January 2014, a more thorough discussion with P about reasonable accommodation and EC was called for. It was said that since P’s injury was work-related, reasonable accommodation was the proper way to handle P’s medical problem, and had she been afforded the same, she would have remained on sick leave but continued to have been employed by HKPF with a view to pass out once she was healthy enough physically to continue with PI training (or re-training with another squad). It was also said P could even be posted to an alternative post whilst awaiting her injuries to improve with a view to re-training at a later stage. Mr Sakhrani submitted that had P been given the option of Re-training, once her sick leave expired in October 2016 and her medical issues were behind her, she would have been able to re-train with a new intake squad in late 2016 with higher chance of passing out, and she could have expected to pass out by July 2017. 737.I have found Kwan previously mentioned the possibilities of Postponement and/or Re-training to P both before and after the Accident, but ultimately it was P’s choice whether to contemplate or require either form of accommodation and to provide the necessary medical information and advice about her condition, injury, treatment, rehabilitation and prognosis for HKPF to consider, fashion and approve suitable accommodation. But despite Kwan’s and Chau’s anxiety to know about P’s prognosis and treatment plan with enquiries raised with P and the orthopaedist at PYNEH’s DOT, they were not told much more than P had a left knee injury and had sick leave until 28 December 2013 with light duty for 4 weeks. P did not reveal any medical information referred to in paragraph 672 above although one would have thought such disclosure would have been necessary information about P’s injury and treatment plans to enable HKPF to properly consider and decide on accommodation suitable for P’s needs including Postponement or Re-training, and it was telling that since 24 December 2013 when P consulted Dr J Lam, 27 December 2013 when she attended UCH’s DOT and had MRI left knee, and 31 December 2013 when P collected the MRI Report / MRI films and learned the MRI results from Dr J Lam, P time and again remained reticent over the relevant medical information and advice such as the needed surgery and rehabilitation, and was not responsive to Kwan’s/Chau’s enquiries about her prognosis and/ or to Kwan’s overtures as to the possibilities of Postponement and/or Re-training for her consideration. 738.On the basis that paragraphs 5-9 in HQO12/11 were applicable to P as an injured officer who was not indexed as a HIO (see Part XXV above), then paragraph 10 provided that an officer who required reasonable accommodation due to health reasons had a responsibility to provide sufficient information and advice regarding his disability or illness to enable a proper consideration to be made of any accommodation required. But in my view this was really nothing more than good common sense. As at 3 January 2014, as far as Kwan/Chau were aware, P was no longer on sick leave, the light duty period recommended in the 4th MC would expire on 24 January 2014, and it was not known whether the requirement for light duty would be extended. There was simply not enough medical information available to Kwan/Chau for them to assume P (who was then already off sick leave as far as Kwan/Chau were concerned) would have needed and would have been granted a long and unknown period of fresh sick leave, or for them to determine at that stage that Postponement or Re-training would be required or justified. It might have been otherwise if P had disclosed her needed surgery to be followed by extensive rehabilitation for muscle strengthening. But since P chose to keep such treatment needs and prognosis close to her chest, I find it sensible and sufficient for Kwan/ Chau to have arranged light duty for P so that she would be an observer for non-classroom training, and for Kwan to mention the possibilities of Postponement and/or Re-training for P to consider whether she would wish to take up either option and to provide relevant information and advice about her condition/injury to enable Kwan/Chan/HKPF to decide what shape the future accommodation should take and/or to give relevant approval. It was quite incorrect to say that as at 3 January 2014 HKPF would have known P would require long term sick leave (whether until October 2016 or otherwise) such that Postponement, Re-training or alternative posting ought to have been provided. I think Kwan and Chau had done all they could by reminding P to consider the possibilities of Postponement and/or Re-training previously mentioned to her, and by trying to find out P’s prognosis so as to shape appropriate accommodation. I find on balance P’s non-responsiveness to Kwan’s/Chau’s overtures and her silence over her needed surgery and consequent extensive rehabilitation strongly indicated she was disinclined to consider the possibilities of Postponement and/or Re-training for her own reasons, and instead she was inclined to resign which would render such possibilities and necessary disclosure redundant. 739.I am also unable to see the relevance of discussion of EC during Chau’s interview with P when the main aim of such interview was to ascertain P’s progress of recovery, her progress in PI training and her views/ suggestions to facilitate her recovery, ie her performance in PI training and her medical situation. As at 3 January 2014, P had received full pay for her sick leave on 20-28 December 2013, her sick leave (as far as Kwan/Chau were aware) had expired, and P had not indicated to Chau she would resign. In any event, even if HQO12/11 (and not just paragraphs 5-9 therein) applied to P, I am unable to see any obligation on HKPF to explain (in contra-distinction to pay) EC to P. HQO12/11 was concerned not with EC but with the provision of reasonable accommodation in respect of the injured officer’s deployment and work duties during rehabilitation and pending recovery so that they could usefully contribute to HKPF whilst they tended to their illness or injury (see paragraph 554 above). As explained in paragraph 131(a) above, EC was a creature of statute, and it was not suggested there was any statutory duty on the part of the employer under the ECO to explain to and to advise the employee about periodical payment entitlements if and when the employee might have future sick leave in relation to the accident/ injury, and how to go about applying to the employer for periodical payments. But even if HKPF had such duty or arrangement, such responsibility would not have fallen on Kwan and/or Chau but on the force welfare officer (who was not said to have colluded with Kwan/Chau to oust P out of the College and against whom P made no allegation) as explained in paragraph 131(a) above. 740.P’s complaints wavered uncertainly between her assertion that HKPF (and hence Kwan, Chau and Tan) should have provided reasonable accommodation to P in terms of Postponement, Re-training or alternative deployment so that she could have remained employed by HKPF on sick leave until she could resume PI training, say, in October 2016 and then pass out in, say, July 2017 (see paragraph 736 above), and a suggestion that she just injured her kneecap and the doctor just recommended her to avoid heavy physical duty, strenuous exercise, marching and foot drilling for around 4 weeks, so P would likely have completed PI training on schedule (ie pass out in mid-2014) (see paragraph 696 above). As for the latter suggestion, quite apart from my finding that P knew she needed surgery and extensive rehabilitation which she did not tell Kwan/Chau, P herself was worried, stressed and pessimistic even before the Accident that she might not pass out (which worry was exacerbated after the Accident and the medical advice for reconstruction/corrective surgery and extensive rehabilitation thereafter for muscle strengthening). I also accept on balance Chau’s view (drawn from his experience as CI teaching many PIs (bearing in mind that for each squad intake there would be quite a few who failed to pass out – see paragraph 378 above) and particularly being in charge of P’s PI training) that her overall performance in her academic/physical training indicated she was unlikely to pass out. I find this to be Chau’s considered view drawn from experience (which was not unreasonable vis-à-vis P’s circumstances) irrespective whether other PIs might be able to pass out (see Part XXXII(a) above). I further find that by 3 January 2014 P was quite worn down by worry that she might not complete PI training to pass out, and when she went to see Chau she was already exhausted and inclined to drop out in face of the harsh reality of her needed surgery and rehabilitation (which Chau did not know) on top of her weak PI training performance that already foretold she might not pass out. 741.In my view, Chau as the CI in charge of P’s PI training was in a position to evaluate her performance and to discuss with her his impression of her performance. I believe the holistic discussion with Chau about the matters referred to in paragraph 727(a)-(c) and (i)-(ii) above made P see even more clearly her medical condition, needed treatment and progress of recovery (which she knew but did not tell Chau), her weak PI training performance so far and the increase in intensity for PI training in the months ahead,[138] which brought into focus P’s perception and worry that she might not pass out and reinforced her inclination to resign. I also bear in mind P was told by the orthopaedist at PYNEH’s DOT it was the intensive training she had that overwhelmed her left knee and caused her patella dislocation (which medical information she passed to Kwan/Chau), which led to the needed reconstruction surgery with a view to correct P’s Knee Condition and to allow safe and intensive physiotherapy/rehabilitation thereafter (which medical information P knew but did not tell Kwan/Chau), but which eventual outcome was then unknown. Given such frank and holistic reality testing of P’s overall situation at the interview, I find on balance (as Chau under cross-examination said he understood) “…… that after [his] meeting with [P], [Chau believed] that then [P] went back to consider …… what [he had] discussed with her plus how she would cope with the forthcoming training ……”, and upon such further reflection P decided not to tell HKPF at all about her needed surgery and rehabilitation and consequently not to consider the possibilities of Postponement or Retraining, but instead she decided to resign. 742.Chau fairly agreed that (a) P had a number of physical problems after she joined the College, eg her left knee and heart problems, (b) she was not doing too well in her academic studies and physical training, and (c) as at 1-2 January 2014 it was uncertain when her left knee injury from the Accident would fully recover, but Chau denied P’s allegations that he forced her resignation and pushed her out of the College.[139] In all the circumstances, I prefer and accept Chau’s evidence that during the interview he never (i) said P pretended to be ill in order to escape duty/work as P alleged or (ii) hinted, asked or otherwise make P feel she had to resign before completion of PI training as P alleged, and I further accept what Chau said in the Chau 2nd WStmt, ie (1) Chau was sure he never scolded P, (2) he recalled she did not cry and/or was not emotional throughout the interview, and (3) at all times he did not abuse his position as CI or otherwise, and/or exert duress and undue influence on P. Chau could not remember whether he had mentioned the issue of integrity to P during his interview with her, but said that even if he did mention about integrity, it must have been for emphasising to P the important quality of integrity for a PI in the course of PI training. 743.On balance, I agree Chau had no or no sufficient reason to accuse and threaten P or to force her to resign (see Part III(b) above), so even if the matter of resignation were ever discussed in the course of the interview, it would not have been an issue raised by him for he had no reason to ask P to resign. In my view, the fact P was a marginal or below average PI was quite insufficient reason for Chau to take the alleged drastic steps to push her out of College when each intake squad would have PIs who would suffer physical injuries, who did not perform well, who had to drop out, and who failed to pass out (see paragraph 378 above). I see nothing so particular or personal about P’s case that would have led Kwan and Chau to single out P to push her out of the College. 744.As Chau said under cross-examination, “…… [his] understanding is that after [his] meeting with [P], [he believed] that then [P] went back to consider …… what [he has] discussed with her plus how she would cope with the forthcoming training ……”, “…… [he] believed that [P] would think about the likelihood that she would be able to complete the training. [Chau] did not have any incentive to push out a trainee …… [he] would say perhaps she might worry that she might not be able to complete the training and she had her own considerations ……” Indeed, P did not resign in front of Chau, and Chau did not know whether Kwan had discussion with her about resignation. When the interview ended, Chau told P to approach Kwan, if necessary, for any matters related to the Accident. Chau said under cross-examination that he did not remember whether P actually went to speak to Kwan after such interview, but there was such a possibility as all along Kwan was looking after the welfare of PIs and had told P of the possibilities of Postponement and Re-training. But Chau said (and on balance I accept) he would not have telephoned Kwan as P alleged because at that time on 3 January 2014 Kwan was probably teaching his class, so there was no reason for Chau to telephone him. 745.On balance, I accept Chau’s account of his interview with P. (b) 1st meeting between Kwan and P 746.According to the Kwan 1st/2nd WStmts, in the morning on 3 January 2013 (but Kwan could not recall the exact time), P approached him to say she wished to resign. Under cross-examination, Kwan could not remember the details how P came to him to indicate she wanted to resign, but he was not surprised that P came to him as he was the one who looked after her welfare, ie he was to support her as injured PI by ensuring she had sufficient rest and to see to other health-related matters. Kwan said all he did at the meeting was to explain to P the resignation procedures, ie she had to tender a written resignation letter to Chau who was her CI and who would pass her resignation letter to the general registry for notifying HKPF’s Personnel Wing of her resignation, and then an exit interview would be arranged for her, and then she would be required to return her stores (ie gears, handouts, police notebooks and other equipment HKPF gave her) before she left the Premises, and then the meeting came to an end. Kwan denied he suggested P to resign. He explained that he was only an assistant CI mainly responsible for administrative matters concerning PIs, so he would not have discussed and he did not discuss with P about resignation prior to their meeting on 3 January 2014. 747.Kwan said he did not ask P why she wanted to resign. He explained under cross-examination that by 3 January 2014 he had dealt with 20-odd to 30 trainees who had left HKPF, and his normal practice was to tell the departing trainee the resignation procedures and then leave it to the CI to see the departing trainee, after which his remaining duties vis-à-vis the departing trainee would be to arrange return of his/her stores and equipment. Kwan said he did not deal with resignation letters or exit interviews. 748.As explained in Part III(b) above, I see no particular reason why Kwan would have colluded with Chau to single out P to force her resignation and to push her out of the College. On balance, I accept Kwan’s evidence that it was natural for P to come and talk to him about her intention to resign and for him to tell her the resignation procedure when he was the supervisor who was mainly responsible for PIs’ welfare. But being only an assistant CI he was not the one who would formally deal with her resignation. Indeed, the practice was for resignation letters to be passed to CIs and then forwarded to HKPF’s Personnel Wing to process the resignations and to arrange the exit interviews, and (as seen in Part XXXII(c) below) this was what happened in P’s case. But as Kwan fairly agreed, he was responsible for dealing with return of P’s stores and equipment. 749.In light of (a) P’s WhatsApp message to him at 5:12pm on 20 December 2013 indicating a wish to collect her written test materials for home study (see paragraph 482 above), (b) P’s WhatsApp to him on 1 January 2014 that she would do her best although it would be difficult for her intelligence and learning ability to improve quickly (see paragraph 670 above), and (c) Kwan having raised with P the possibilities of Postponement and Re-training on 2 January 2014 (but not knowing (as P did) P’s sick leave until 3 January 2014, her MRI results, her needed surgery and extensive rehabilitation thereafter, and her upcoming follow-up on 21 January 2014 for operation decision), Kwan fairly acknowledged P’s indication of resignation was “…… a little bit unexpected …… from [his] point of view ……”, but, as said in the Kwan 2nd WStmt, he found her intention to resign understandable as (i) it was not uncommon for a PI to tender resignation after suffering injury and feeling exhausted by PI training, which training required strong determination and perseverance, and (ii) there might well be other personal reasons. 750.For (i) above, Kwan explained under cross-examination that “…… [when he] was involving in the student police training, for every 30 student police who were admitted, ……. 6 have left the employment. When [he] was teaching [PI] class, for every 45 [PIs], around more than 5 left the employment ……” (which was consistent with the data in paragraph 378 above), so it was not uncommon for PIs to resign. For (ii) above, Kwan said it was understandable as “…… [he] felt that in the training [P] had borne a lot of hardship …… and also pressure ……” for a long time, and “…… [he had] talked to her a few times concerning going to a new class or to suspend the training [ie Postponement or Re-training] …… But [he] felt that she did not want to go on ……” Kwan said “…… normally regarding the students who left the employment, [he] felt that they left because of the huge pressure. Well, as [he has] stated in [his] statement, the training of [PI] required a lot of determination and also the enduring effort and also determination ……” Kwan knew P to be very hardworking, but PI training was a hardship for her. The academic examination results for PI566 on 18 November 2013 revealed P was ranked 13 out of 14 (see Part XII(a) above), so at least academically P was one of the lower-performing PIs. Kwan was also aware P had modified training for her physical training, needed additional/extra physical training and was excused from some physical training tests (see Part X and Part XII(b)-(c) above). Whilst P was not at the bottom of the squad, Kwan explained that “…… the one at the bottom may not be the one who has hardship. Well, but what [Kwan has] said is [he] felt that [P] was working very hard but she had a hardship, and she felt it was difficult for her. P did not offer to Kwan any reason for resignation ……” So when P came to Kwan to indicate her intention to resign, “…… [Kwan] felt that [he] would respect the decision of [P] ……” 751.When it was suggested to Kwan under cross-examination that (a) P’s concern at that stage mainly concerned continuing with PI training at the College, but (b) P was then doing fine, passing her examinations and only had a “slight injury” that only resulted in 9 days’ sick leave and 4 weeks’ light duty (so she would have recovered) (see paragraphs 697 and 715 above), Kwan gave evidence that he could not say her resignation must have been for a health-related reason because P might wish to leave for many reasons. In my view, Kwan had astute understanding of P’s situation, and perceptively noted not just her outward effort to “pinch her nose” to work towards her dream to pass out and to become an PI, but also her inner struggles and hardships during PI training. 752.I reiterate my observations in paragraphs 484-486 above in relation to P’s WhatsApp message to Kwan at 5:12pm on 20 December 2013 in paragraph 749(a) above, and in Part XXVIII above in relation to P’s WhatsApp message to Kwan on 1 January 2014 in paragraph 749(b) above, which did not take P’s case much further. But in any event, P’s thinking had evolved in the period from the immediate aftermath of the Accident on 20 December 2013 to her holistic reflection after the meeting with Chau on 3 January 2014 as explained above. I am not persuaded that these 2 WhatsApp messages definitively indicated that P would not have resigned. On balance I find Kwan’s perception of P during PI training insightful. He knew P worked very hard, but PI training was a hardship for her. P was a below average PI, but Kwan perceptively saw it was not always the one at the bottom of the squad who would have the greatest hardship. In my view, P was giving her all but still was not doing well in PI training, and P’s Personality exacerbated her stress and worry. Kwan had experience with PIs in PI training, and as he rightly pointed out (and as consistent with my findings), by the end of the 1st third of the Course P was already struggling despite her diligence, and she was stressed and under huge pressure, worrying that when the progress of PI training turned more intensive in the months to come she might not pass the final examinations to pass out. As Kwan percipiently observed (and which was only natural), it was the ones who felt the huge pressure who would drop out and resign. I have found P was frustrated and worried by her weak training performance and felt her dream was slipping away from her. P was aware of P’s Knee Condition (even if she might not have known about her bony defects) and she knew that she was struggling with PI training despite modified/additional training, that there were always some who would fail to pass out or had to fall back squad, and that she had the Accident and needed surgery with extensive rehabilitation, so the interview with Chau helped her to settle her turmoil, to view her situation more clearly and to come to her decision to resign immediately, which I am sure made her unhappy but relieved her from the huge pressure she was under not just in relation to PI training but also in relation to sympathetic enquiries by her supervisors and her squad mates (and she had kept her sick leave up to 3 January 2014 and her needed surgery from them), which P found annoying/tiresome and which she did not want to face. I agree with Kwan that P’s intention to resign was not just for health reason, but also for relief of the huge stress/pressure of her trying to cope with PI training, which training overwhelmed her left knee as advised by the orthopaedist of PYNEH’s DOT. Ultimately, as in Kwan’s words, P felt she could not go on and resigned. I disagree that by 3 January 2014 P thought she was doing fine as she had limited sick leave, 4 weeks’ light duty and would have recovered (see paragraphs 697 and 715 above). 753.I have carefully considered but find I cannot accept Mr Sakhrani’s submissions that there was no evidence that P could not bear the hardships of PI training, particularly in light of the hurdles she had overcome to get to that stage. Whilst I accept P worked hard, she did not overcome hurdles. Objectively, she remained a marginal and below average PI for the 1st ⅓ of PI training despite her hardworking efforts and additional/extra training, and she would be facing even more intensive training for the rest of the Course. More importantly, I have found that she subjectively worried she might not pass out, and was so stressed that she lost weight, had vomiting and display of tantrums and uncontrollable tempers. Whilst she might outwardly claim to “pinch her nose” and try to improve to convince herself about her dream, she knew in her mind that she was not coping even though she already tried very hard, and then came the Accident which she was told by the orthopaedist at PYNEH’s DOT was the result of her left knee being overwhelmed by intensive training (but which training would intensify in the months to come), and which required surgery and extensive rehabilitation. In my view, her holistic discussion with Chau allowed her to see her problems and concerns with greater clarity, and she decided to resign. I disagree with Mr Sakhrani’s submissions that Kwan’s evidence that he felt P did not want to go on was unimpressive and incredible. I find there was a ring of truth in such evidence. 754.Mr Sakhrani criticised Kwan for not asking P why she wanted to resign and/or for not reminding P about the possibilities of Postponement and/or Re-training that he mentioned on 2 January 2014 even though HQO12/11 guided him to motivate, support and provide guidance to impaired officers. He submitted this was incredible, which showed Kwan was evasive in his evidence. 755.On balance, I accept Kwan’s evidence in this respect. Kwan explained he had spoken to P about the possibilities of Postponement and/or Re-training by telephone after the Accident and on 2 January 2014 (even though he did not remember the exact details of such conversations), so P well knew these possibilities. He said by 3 January 2014, he felt P did not wish to go on and instead wished to leave, so he considered he should not affect her decision. After all, if P wished for accommodation by Postponement or Re-training, she would have said so to him when he last mentioned these possibilities the day before. Kwan felt P had made her choice on her own considerations, and he felt she wished to leave. He believed PI training was not a matter for bargaining, and he had done what he could. When it was suggested to Kwan under cross-examination that out of concern for P’s welfare from a personal or humanitarian perspective he would have asked her why she resigned, Kwan explained whether he would discuss with a departing PI about his/her reasons for resignation would depend on the PI. “If the student is willing to take his initiative to tell [Kwan], then [Kwan] will know. But if he does not take his initiative to tell [Kwan], then [Kwan] will not take [his] initiative to ask him, because the reason why he left is his own reason, unless he asked [Kwan] for [his] advice”. Kwan explained that some departing PIs might well resign due to their inability to take the pressure of PI training, and if they were silent about their reasons for resignation, he would not add salt to the wound by asking their reasons for resignation which would be tantamount to asking why they could not take the pressure. 756.As for Mr Sakhrani’s suggestion that Kwan was evasive and unreliable in not asking P about the reason for her resignation, I find myself unable to accept such argument:
757.Mr Sakhrani next complained Kwan testified that from the point of view of his work it was not necessary for him to know the reason for P’s resignation, so he was not concerned, which did not sit well with his assertion that he cared about the welfare of PIs including P. In my view, Kwan’s evidence must be viewed in its proper context. He gave evidence that even after such meeting with P on 3 January 2014 he did not follow up on P’s reason for resignation because if P did resign after such meeting his remaining work was to deal with her over the procedures for ceasing employment, eg returning her stores and equipment, and for such work there was no need or it was not necessary for him to know why she resigned. In my view, this must be correct because by that time she would have already resigned. But for the earlier meeting on 3 January 2014, Kwan had explained in paragraphs 747-756 above why he did not ask P the reason for her resignation. He explained that if a departing PI did not volunteer his/her reason for resignation, he would not ask and certainly would not be so insensitive to do so when he sensed they were leaving because of hardships and pressure from PI training (which he thought was P’s case). On balance, I accept this was Kwan’s approach (irrespective whether any other supervisor might have adopted a different approach), and I do not see how he could be faulted. 758.Mr Sakhrani submitted this contradicted Kwan’s duty to comply with HQO12/11 in dealing with injured workers. But Mr Sakhrani did not identify why HQO12/11 would be relevant to a departing officer (injured or otherwise) who intended to resign and leave HKPF in contra-distinction to an injured officer remaining with HKPF who therefore had to be accommodated in respect of his/her posting and/or work duties. It boggled the mind to contemplate provision of reasonable accommodation to officers who wanted to leave HKPF. Indeed, Mr Sakhrani in paragraph 82 of his written closing submissions acknowledged it was “procedurally not apparently required” for Kwan to enquire why P resigned. In any event, I have found Kwan reminded P of the possibilities of Postponement and Re-training the day before, and instead of telling Kwan she would contemplate such possibilities and provide him with information about the sick leave until 3 January 2014, the needed surgery and rehabilitation, the MRI results and the upcoming follow-up for operation decision for HKPF to fashion, shape and provide suitable accommodation, P kept silent on those matters and indicated to Kwan she intended to resign. 759.Mr Sakhrani submitted Kwan’s lack of enquiry contradicted D’s case that Kwan cared for P’s welfare in carrying out his role in “managing the daily needs and miscellaneous matters of the PIs” and “encouraging the PIs not performing so well to improve”, especially when Kwan alleged close contact with P, earlier concern for her health, constant guidance to her, and respect she showed to him. It was also said that Kwan knew P was on light duty only, so she was recovering from her injury and it would have been natural for her to stay on rather than resign. But, in my view, such argument ignored the totality of Kwan’s evidence as to why he would not say P’s intended resignation solely concerned the Accident and knee injury. He was well aware she was struggling with and was under huge pressure from PI training with below-average or marginal performance, and he acknowledged she might have other considerations. Further, like Chau, Kwan had on 27 December 2013 and 2 January 2013 probed P about her medical condition, but learned little except she had knee injury and required light duty, so no assumptions could be made. Rather it was P who did not let on about her medical condition and needed surgery/ rehabilitation. Kwan fairly accepted P’s indication of resignation was a bit unexpected but went on to explain why he considered it understandable from what he knew of her situation, especially in the context of his experience that it was not uncommon for PIs to resign after suffering injury and feeling exhausted by PI training, which training required strong determination and perseverance in face of setbacks and hardships. Viewed in its totality, I see nothing of concern, and on balance I accept Kwan’s account. 760.Mr Sakhrani next submitted (a) it was incredible that when P came to Kwan to indicate she intended to resign, he did not remind her of the possibilities of Postponement and Re-training mentioned the day before, (b) it was unrealistic for Kwan to deny that even from a humanitarian perspective he would not ask the reason for P’s resignation, and (c) it was illogical for Kwan to merely say he had to respect her personal decision when he claimed to be concerned about her, for surely if he were so concerned, he would have asked after her sudden decision. 761.I agree with Ms Chao that the very fact the possibilities of Postponement and Re-training were mentioned to P the day before showed they must have been fresh in her mind, especially as she must have been mulling over the matter of her situation and possible resignation on these 2 days before seeing Kwan on 3 January 2014. Further, this was nothing new as I have found that Kwan had raised these possibilities with her on other occasions both before and after the Accident. In my view, it was plain that P decided not to contemplate these possibilities, not to disclose her medical condition and needed surgery/rehabilitation and to choose to resign, which intention Kwan respected. As Kwan put it so succinctly, he had done what he could but felt P wanted to leave, and in his view the strict requirements of PI training and passing out were not for bargaining. He also explained not only his duties would not require him to know the reason for P’s resignation, he also expressed understanding of P’s hardship and struggle with PI training and the huge pressure she was under, and so sensitively did not ask P for her reason for resignation (which was his usual practice for departing PIs (and not just P) who did not volunteer their reasons for resignation). In light of my discussion and conclusion, there was no need for me to go further to consider Ms Chao’s reliance on Lee Yam Kan (paragraph 45) to say that “the court should not be too paternalistic; and should not treat employees as kindergarten pupils”, so given P’s age and education there was no reason to require Kwan to go all out to persuade her to remain with HKPF when she intended to resign and leave. But I see the force of such contention. 762.Mr Sakhrani went on to say there was no plausible reason for P to have resigned because (a) even if she had been lagging in her academic studies, she was keen to improve and hoped to graduate, (b) “Kwan was also aware that she was not to undertake heavy physical duties during the sick leave period, which on D’s own case, was only for a few days”, (c) none of P’s treating doctors told her she could not complete PI training, and (d) there was no evidence that she perceived her injury on December 2013 to be a failure or she felt she could not complete her PI training (see P’s WhatsApp message to Kwan on 1 January 2014 that showed she was keen to improve, and she even returned to the College to get her course materials to study at home during sick leave). 763.In light of my above findings (which I rely but do not repeat here), I find myself unable to accept such submissions. In considering P’s decision to resign, it was her subjective intention (and not Kwan’s alleged awareness as alleged in (b) above) that mattered, and I have found she was driven by P’s Personality. Whilst she outwardly tried to cling to her dream of passing out and becoming an IP and would therefore put on a brave face for herself and others that she would “pinch her nose” to work hard, it did not mean she did not know she was struggling in PI training despite giving her all, and was stressed and worried about not passing out. I do not accept (b)-(c) above when P herself knew 2 doctors advised corrective surgery which was needed for stabilising her left knee to be followed by extensive physiotherapy, and I have found that despite her wish otherwise, by 3 January 2014 she knew the needed surgery could not be put off until much later, but at that stage the outcome of the needed surgery and the consequent rehabilitation was unknown. I find this added to P’s worry about not passing out. As regards (d) above, P was advised by the orthopaedist at PYNEH’s DOT that her left knee (which had suffered previous dislocations) was overwhelmed by intensive training and led to the left patella dislocation on 20 December 2013. There was no evidence that the other treating doctors told her otherwise. P would have perceived the knee injury, the needed surgery and the consequent extensive rehabilitation as her own physical weaknesses, which she tried to hide from her supervisors as well as her squad mates. Her weak performance in academic training and physical training (with modified and additional/ extra training) were already there for all to see, and she was frustrated, gloomy and despondent. I find on balance that by 3 January 2014 P had the unhappy feeling that she was struggling and failing in her PI training and in her knee injury, and was stressed and dismal about her prospects in passing out. 764.On a matter of general credibility, Mr Sakhrani complained that Kwan could recall (a) an oral discussion in/about October 2013 during which P told him her knee could be easily injured again and he told her to stop training if the knee was unwell, and (b) oral discussion with P in the 1st or 2nd week of PI training and on 2 January 2014 about the possibilities of Postponement and/or Re-training, but could not remember what P said at the meeting on 3 January 2014. It was said that with P’s recent injury and hospitalisation in December 2013 and so many things happening on 3 January 2014 (including the thorough discussion Kwan had with Chau that morning), it is inconceivable Kwan could not remember his discussion with P when she came to resign on 3 January 2014. 765.In my view, with so many things happening on 3 January 2014, I do not find it surprising Kwan remembered the gist of what P came to see him for (which he said was a short meeting) and not the precise details. He was able to say P came to him to indicate she intended to resign and he told her about the resignation procedures, which was all that was discussed as he did not explore with P the reason for her intention to resign, and did not mention again the possibilities of Postponement and/or Re-training. He even said the brief meeting ended after he explained the resignation procedures. I do not see Kwan trying to be conveniently forgetful to hide evidence not in D’s favour. 766.Kwan gave evidence under cross-examination (and on balance I accept) that at that stage P had not handed her resignation letter to the CI (and P did not hand any resignation letter to him) when P came to him to indicate she wanted to resign, so even though he felt P would resign, he did not know and could not confirm whether P had actually decided by then to resign. He was not required to and did not make any record/statement about what happened at this meeting with P, and even when he dealt with other PIs who told him they intended to resign, he did not have his own record of such conversations. There was some hint of complaint about no apparent discussion of EC entitlements by Kwan with P at such meeting, but for similar reasons set out in paragraph 739 above, I do not see why Kwan would have talked about EC entitlements when P came around to tell him she intended to resign. 767.For all of the above reasons, on balance I prefer and accept Kwan’s above account of his meeting with P when she came to tell him she intended to resign. (c) Resignation Letter 768.Kwan had no impression of P’s Resignation Letter because P later submitted the Resignation Letter not to him but probably to Chau. According to the Kwan 2nd WStmt, Kwan did not instruct P to write anything or alter her resignation letter. But it was not long after his meeting with P that Chau told him about P’s formal resignation and asked him to follow-up. Kwan explained under cross-examination that as P actually resigned and would leave the College, his concern for her welfare as a PI would change to his concern to facilitate her departure and to encourage her to take up other career, but he could not remember the details of how he encouraged her. 769.According to the Chau 1st/2nd WStmts, sometime after Chau’s interview with P but on the same day (ie 3 January 2014), Chau received the Resignation Letter from P (E/448) via the general registry support staff, and the Resignation Letter stated the reason for resignation was “due to personal reasons”. Chau explained under cross-examination that sometimes the CI might be having class lessons, so the resigning PI might submit his/her resignation letter through the general registry. Chau recalled when he finished teaching his class, he received P’s Resignation Letter from the clerical staff of “RTD FTC” (ie RTDiv). Since the general registry and Chau’s office were on the same floor, the general registry support staff probably gave the Resignation Letter to him by hand. According to the Chau 2nd WStmt, upon receiving such Resignation Letter, Chau sent it to HKPF’s Personnel Wing to arrange an exit interview for P. Chau explained under cross-examination that he used the fax machine at the general registry to send the Resignation Letter to the Personnel Wing at HKPF headquarters for their handling, and the fax header and footer of the Resignation Letter showed it was so faxed:
Chau had no idea what the Personnel Wing at HKPF headquarters did with the Resignation Letter. According to the Chau 2nd WStmt, Chau also asked Kwan to follow-up on P’s resignation in accordance with usual procedures, eg P was to return her stores[140] before she left the Premises. 770.Mr Sakhrani submitted there was an evidential gap as to how the Resignation Letter reached the general registry support staff when (a) Kwan claimed no knowledge of the Resignation Letter, and (b) Chau said he did not see the letter until the general support staff passed it to him, and on such basis Mr Sakhrani asked me to accept P’s straightforward evidence that she handed it to her immediate superior Kwan after he required her to re-write it. I disagree. I do not see any evidential lacuna. One would not sensibly expect any general registry support/clerical staff to have recollection about a letter amongst all the paperwork that would have passed through the general registry on a daily basis, especially when resignations were not unheard of amongst PIs at the College. In light of my findings and Chau’s explanation in paragraph 769 above, the natural and logical inference (which on balance I make) was that P submitted the Resignation Letter to the general registry for the attention of Chau who was then teaching a class. 771.Mr Sakhrani next argued that Kwan’s allegation that he had no recollection of the Resignation Letter was evidently to avoid any questions in relation to inter alia how it had been created. I do not accept such contention which was just simply to argue P’s case. I find on balance it was the CI and not the assistant CI who dealt with resignation letters, so it was unsurprising that Kwan had no impression of the same. 772.On balance, I accept Kwan’s and Chau’s accounts in paragraphs 768-769 above. 773.I note with interest that the exit interview with Tan was not organised by Kwan and/or Chau but by Personnel Wing of HKPF headquarters. This was relevant to Mr Sakhrani’s suggestion that the urgency to rush through P’s resignation did not sit well with Kwan’s claim that only a day ago he reminded her of the possibilities of Postponement and/or Re-training, so there was no reason to resign and something must have happened, likely a discussion between Kwan and Chau to force P out of the College. I have already dealt with (and made findings accordingly) in respect of the events on 2 January 2014 (see Part XXIX above) and P’s resignation on 3 January 2014 (see Part XXXII(b)-(c) above), and I reject P’s case that there was no reason to resign (see Part XXXI above). Further, I find there was no unseemly haste in arranging the exit interview on the same day. After all, P in her Resignation Letter requested for her resignation to take immediate effect, and the exit interview was arranged not by Kwan, Chau and/or Tan but by the Personnel Wing of HKPF headquarters (see also paragraph 769 above and paragraph 776 below). (d) Meeting with Tan 774.Kwan had not seen and was not involved in the preparation of P’s Record of Service. He said under cross-examination it was probably coordinated by Chau being P’s CI, but the document itself might have been prepared by the general registry clerical staff. Kwan was not clear why Tan was asked to conduct the exit interview, but as far as he knew from experience a long time ago working as an instructor at the College that it was the SP working in Tan’s post (ie the second most senior police officer at the College) who would conduct exit interviews for PC trainees or PIs who had resigned. Kwan never participated in any exit interview, and he was unclear what happened at such exit interview. 775.Chau said under cross-examination that although the Accident happened on 20 December 2013, it was not necessarily the case that he would have informed Tan about the Accident at that time (but he would have reported an accident/injury to Tan at the first opportunity if it was serious). Chau could not remember exactly when he informed Tan about P’s Accident, but it must have been before 14 January 2014 when he completed the OSH Accident Report Form. Since he resumed duty on 3 January 2014 after vacation leave, Chau said it was likely that he informed Tan about the Accident on 3 January 2014 or “…… within a few days after …… 3 January” 2014. But Chau fairly pointed out that it was very likely that Tan would have learnt about the Accident the day after from the daily report to him. 776.According to the Chau 2nd WStmt, it was HKPF’s normal practice for an exit interview to be arranged and held as soon as possible after a PI tendered his/her resignation. Chau understood that P’s Record of Service was duly prepared shortly after P resigned, and an exit interview was arranged on the same day. It was HKPF’s practice to handle resignation in a prompt and professional manner. 777.As regards the Record of Service, Chau said he did not fill in Parts B-D (but he knew the contents were correct), which were probably filled in by some clerical staff. Tan signed the Record of Service because (a) the form required an officer of a specified rank (ie SP) to sign, and (b) Tan oversaw PI training, so when a PI left employment, Tan had to know about it, conduct the exit interview and sign the Record of Service. In my view, this echoed Kwan’s evidence that an exit interview would be conducted by a SP, and by Tan as he was the division head of RTDiv responsible for PI training of PC trainees and PIs (see paragraph 774 above). 778.Under cross-examination, Chau agreed Tan oversaw and had overall handling of OSH matters at the College. Ms Chao submitted that this explained why Chau would report to Tan on OSH matters, and why Tan’s name appeared in the OSH Accident Report Form. But Chan explained that the SP who conducted the exit interview was not the same as the police officer who was the equivalent of TSRO who did administrative work. Chan said all along exit interviews was conducted by SP of RTDiv, including himself when he was attached to the College, and also his 2 predecessors (including Tan). 779.Chan confirmed the Record of Service was a computer record, and when he as a SP conducted exit interviews at the College, he also prepared records of service similar to P’s. Chan said part of the exit interview was to confirm the information in the record of service, and part of it was “…… [to] understand the reason why the officer exits before the completion of training. There are two considerations. First of all, for the sake of management because that officer exits so this is a good opportunity for [Chan] to have an understanding on the performance of [his] subordinate, that is, the instructor. Of course, [Chan] will not ask them directly. Secondly, to understand the real reason why they exit, in particular whether it had anything to do with [Chan’s] training course, because very often the formal reason given by them may not be their true reason. For example, if in reality the officer cannot bear the pressure they would use the reason that their family members object to that or due to family matters, so we would make use of this opportunity to have more understanding. One more reason is that, well, for some students who have performed very well but they have some reasons for exit which we could show sympathy to that, so we would make use of this opportunity to encourage them to join the police force again in the future ……” Chan said this was his experience with the recruits/trainees he dealt with at the exit interviews he conducted, and agreed there had been times when the departing PI did not say anything and Chan would just go through the process of the exit interview. 780.Mr Sakhrani submitted Chan was able to confirm what normally happened at the exit interview, so Tan ought to have found out that P was not resigning for personal reasons. In my view, if it were suggested that had Tan asked P about her root reason for resignation he would have found out P was forced to resign and in fact she wanted to remain with HKPF, I disagree and have rejected P’s case to such effect. But if it were suggested that had Tan asked P about her root reason for resignation he would have found out she resigned for health reasons in which case Tan should have reminded her about Postponement, Re-training or other reasonable accommodation and urged her to consider such accommodation to remain with HKPF, I disagree because (a) it was not P’s case that she resigned for health reason (and rather P’s case was that she did not wish to resign but when forced by Kwan, she initially to put down “health reasons” as purported reason for resignation which Kwan did not accept and made her change to “personal reasons”), and (b) even if Tan made enquiry and P did resign for health reason, it find it highly implausible that P would have told Tan the “health reason” for plainly she had chosen to keep silent about her sick leave up to 3 January 2014, her doctors’ advice for needed surgery and extensive rehabilitation, the MRI results and the upcoming follow-up appointment with UCH’s DOT on 21 January 2014 for operation decision despite having been told of the possibilities of Postponement and Re-training. I find on balance P’s resignation and her disinclination to consider those possibilities were partly rooted in P’s concern (for reasons known to her) to keep the aforesaid prognosis and needed treatment out of prying eyes. I find that more likely than not P would have stuck with “personal reasons” and would not say more even if she were asked by Tan. In my view, these matters would not have assisted P’s case. 781.Further, in my view, the primary purpose of the exit interview was to confirm the information in the Record of Service which both P and Chan agreed was an administrative checklist exercise. Mr Sakhrani suggested on the strength of Chan’s evidence that the SP conducting exit interviews did not have any discretion to not ask question about resignation. On balance, I am not persuaded there was any such requirement. In any event, if one considered the circumstances in which Chan raised the matter of resignation with departing PIs, it was not really to find out (a) whether the departing PI genuinely wanted to leave and/or (b) what reasonable accommodation HKPF should provide to such PI (which matter was only relevant if the PI were to remain with and not to exit from HKPF). The personnel management purpose of gathering anecdotal information as to the teaching performance/style of the relevant CI, assistant CI and/or other instructor, and the public relations purpose of encouraging quality PIs to rejoin HKPF in future as Chan mentioned had nothing to so the purposes in (a)-(b) above. Chan also mentioned an administrative purpose of gathering information to have more understanding as to whether the Course put too much pressure on PIs because it was their experience that the exiting PI might camouflage such reason by another one (eg objection by the family). These management, administrative and public relations purposes were not for the benefit of the exiting PI but to alert the College of any systemic issue that would need to be addressed and/or to encourage talent to return to HKPF in future. 782.In my view, there was no basis to assume that the exit interview was for the SP to cross-check whether each and every resignation was genuine or to encourage the PI (healthy or otherwise) who had resigned to change his/her mind to remain with HKPF. Nor was it logical or sensible to assume the exit interview was to fathom whether any exiting employee was health-impaired and should be afforded reasonable accommodation. The exiting PI, whether healthy or health- impaired, was leaving HKPF, and I find it strange to contemplate “accommodation” should be offered or given to such departing PI who had already resigned and would leave HKPF right after the exit interview. Once it was understood that reasonable accommodation was for officers remaining with HKPF, Ms Chao must be right in saying that asking about the root reason for resignation was not mandatory but discretionary. Obviously, Chan was a senior police officer who took a broad view of his duties and would take the opportunities afforded by exit interviews to ascertain whether the College or RTDiv had any room for improvement. In any event, Chan made clear in his evidence that this was his experience with the recruits/trainees that he dealt with as far as the exit interviews he conducted without trespassing on what others might have done. But I see nothing sinister in Tan taking a narrow view of the exit interview as an administrative checklist exercise to close the employment of the departing PI. And P confirmed this was the course he took. There was no suggestion in P’s evidence that Tan accused or threatened her, or he forced her to resign, or he did any other overt act to push her out of the College. Lastly, I have found that P did not submit the 3rd MC to Kwan/College, so as far as Tan was concerned P was not on sick leave on 3 January 2014, so there was nothing to excite his concern. (e) After exit interview 783.According to the Chau 2nd WStmt, Chau did not remember whether P approached Chau again on the same day (ie 3 January 2014). But he did not enquire with P why she wished to resign as he took a neutral stance to any resignation intention of PIs, and it was not the practice to urge PIs who wished to resign at an early stage of PI training to stay with HKPF. But Chau was not surprised to learn P wanted to resign at an early stage of her PI training (ie about ⅓ of her PI training). PIs were expected to understand an IP’s work was tough and stressful, and HKPF would not give any false hope to those PIs who do not wish to continue with PI training by asking them to stay. So long as P’s resignation was an “informed decision”, Chau stated there was no reason for him to reject it. Historically speaking, resignation was in fact not uncommon in PI squads. Chau said PIs resigned due to various reasons, including but not limited to health or personal reasons. 784.When asked what he meant by “informed decision” in the Chau 2nd WStmt, Chau explained under cross-examination that it was not any reference to his discussion with her before she resigned. Rather, he meant “…… [P] has taken into consideration different factors, but it doesn’t mean that somebody had informed her concerning the decision. If [Chau] had to write that again, [Chau] will say well considered ……” When cross-examined on how he knew she had made a well-considered decision, Chau said “…… [she] is an adult. She made a decision and she had taken into account of different things to make a decision ……” Chau disagreed it was a mere assumption she made a well-considered decision as he had not asked her why she resigned so as to actually satisfy himself she had made a well-considered decision. 785.On balance, I find and accept Chau did not ask P why she resigned for the reasons he gave. (f) Duty to ask questions about resignation? 786.Mr Sakhrani submitted that (a) both Kwan and Chau had a duty as employers not to simply accept P’s resignation without asking any questions (which was what they did), and (b) it was trite the courts recognised that employers should take some care after purported words indicating resignation are uttered. I believe such contentions were put forward on the premise of D’s case since P claimed she never indicted any wish to resign. But insofar as Mr Sakhrani put forward the above contention on the basis of Chan’s testimony that if he were in Tan’s position (and from his experience with exit interviews), he would have found out the reason why PIs resigned, I have dealt with Chan’s testimony in Part XXXII(d) above and did not find it took P’s case any further. 787.For (a)-(b) above, Mr Sakhrani drew support from the observations by Mimmie Chan J in Lam Sin Yi Sindy v Leung King Wai William.[141]In that case, L was employed as a secretary by the defendant who traded as a firm of solicitors. They exchanged a series of WhatsApp messages arising from L’s application for half day’s “no pay leave”. The defendant sent L a message stating he was considering whether she had absented herself from work without cause and should therefore have to “leave immediately”. L responded by asking whether the defendant was treating her as being absent without cause and she was to leave immediately. She also suggested it was up to the defendant whether to dismiss her, and she had been prepared to return to work, but “it did not matter” if she should return to pack her things, return her card and take her pay cheque (L’s Message). When L later returned to the office, she was asked to pack her personal belongings, return the office keys and cancel her computer password. Thereafter she ceased returning to work. The defendant subsequently deducted a sum from L’s wages as payment in lieu of 7 days’ notice (Sum). L lodged a claim against the defendant, and the Minor Employment Claims Adjudication Board eventually dismissed her claim, finding that although she had not used the word “resign”, the content of L’s Message and her conduct demonstrated her termination of the employment. L appealed on point of law as to whether the board erred in finding she resigned from employment. On appeal, the defendant consented to setting aside the decision of the board, but argued that the matter should be remitted to the board for retrial. After the hearing, the court allowed the appeal and ordered the defendant to repay the Sum to L. 788.The issue in that case was whether L repudiated the employment contract, ie whether (a) L resigned so it could be properly accepted by the defendant, or (b) L was unfairly/wrongfully dismissed because the defendant accepted a purported resignation at face value and treated the employment as at an end, which was a fact-sensitive question that had to be considered against the entire context of the case. The nature of this issue was explained in Chitty on Contracts as follows:[142]
Where the assertion was ambiguous as to whether it was a true or purported resignation, the tribunal would have to objectively ascertain from the context of the contract and the circumstances of the case whether a reasonable person would conclude there was renunciation. This was echoed in Rimer LJ’s observations set out in paragraph 790 below. 789.Mimmie Chan J clearly had such disputed issue and the relevant principles in mind for she referred to “a line of cases which show the court’s approach to the question of how notices of termination of employment by employers and employees should be considered properly construed, bearing in mind the relationship between the parties, the conduct constituting breach, and whether there is evidence of unequivocal conduct which demonstrates the intention of the party said to be in breach no longer to be bound, and to treat the contract as irrevocably discharged ……” (my emphasis) (page 176-177). 790.The authorities cited by the learned judge largely concerned whether words of an oral notice of resignation or dismissal were clear and unambiguous enough to give rise to unequivocal repudiation, especially when the termination or purported termination was charged with emotions and took place in circumstances in which impulsive words and heated arguments were often exchanged. Those authorities underlined that where the employee used unambiguous words of resignation so understood by the employer, the tribunal should not be astute to find otherwise than that the employee had in truth resigned. This was reiterated by Wood J in Kwik-Fit (GB) Ltd v Lineham[143] which Rimer LJ referred to in Willoughby v CF Capital Plc[144](cited by Mimmie Chan J at page 178) that if words of resignation were unambiguous then prima facie an employer would be entitled to treat them as such. In short, there was no need to delve into the subjective motives of the employee to ascertain why he/she resigned. Mimmie Chan J noted Rimer LJ went on to say as follows (pages 178-179):
791.In my view, the disputed issue in Lam Sin Yi Sindy was far different from the issue in the present context. On D’s case, when Chau first saw P on 3 January 2014, P had not indicated to Chau she wanted to resign. When P approached Kwan to indicate intention to resign, she had not resigned as yet and he explained to her the resignation procedures. At that stage, neither Chau nor Kwan was concerned with construing P’s words as to whether or not she actually resigned because, quite simply, she had not yet resigned. On D’s case, P resigned by submitting the Resignation Letter to the general registry of the College whose support staff eventually passed such letter to Chau. But the terms of the Resignation Letter were clear, unambiguous and unequivocal to the effect that she resigned with immediate effect, which was consistent with her intention as told to Kwan earlier that day. There were also no heated words or arguments. The Resignation Letter was accepted by HKPF (not just by Chau and Tan but also by the Personnel Wing of HKPF headquarters) as P’s unequivocal conduct in processing her resignation, making final salary/leave payments and closing her employment with the exit interview and Record of Service. In the absence of any ambiguity in the Resignation Letter, there was no call, duty or requirement on the part of HKPF to question or investigate whether P in truth resigned or to find out her subjective and personal motives for resignation. As to the anterior question (which was a disputed issue before this court but not before Mimmie Chan J) of whether the clear and unequivocal resignation was vitiated by anterior duress and undue influence such that it was in fact not a not a true resignation, it was a fact-sensitive question which I have answered against P, but it was not a question considered in Lam Sin Yi Sindy. 792.In the circumstances, I do not accept that (a) since Kwan/ Chau did not make enquiries about P’s root reason for resignation they did not really care whether or not P should continue with the Course contrary to their claimed feelings in this regard, and (b) everything was rushed through on 3 January 2014, which showed no time was to be wasted to get P to leave. In my view, it was not for Chau and Kwan to probe P’s subjective motives for resignation to see whether it was in fact health-related and if so, to offer accommodation for her to remain with HKPF. As Kwan said, upon P’s resignation concern for P’s welfare as a PI would turn to concern to facilitate her departure and to encourage her to take up other career. There was also no merit in the complaint that the resignation procedures were rushed through because (a) P by her Resignation Letter asked for her resignation to take effect immediately, and (b) HKPF’s Personnel Wing at HKPF headquarters accommodated her request by arranging exit interview on the same day. Indeed, the Chau 2nd WStmt explained that it was HKPF’s practice to handle resignations in a prompt and professional manner. In my view, the prompt arrangement by HKPF’s Personnel Wing (not Kwan or Chau) to waive notice of termination or payment in lieu thereof (which benefited P by accommodating her request for immediate termination) was neither here nor there. (g) 2nd meeting with Kwan 793.According to the Kwan 2nd WStmt, at/about 3:00pm on the same day (ie 3 January 2014), Kwan approached P again to take the 3/1/14 Stmt from her regarding the Accident/injury in accordance with the Standard Procedures, and in any event it was in the interest of both P and HKPF to keep a record of the Accident when P had resigned and would leave HKPF. As Kwan had been following-up on P’s injury since 20 December 2013 and had talked to some other witnesses, he considered he knew sufficiently about the Accident so he prepared a draft of the 3/1/14 Stmt in advance. During the meeting at Room 120, Administrative Block at the Premises, Kwan asked P to review the facts stated in the draft and to supplement with further details (if any). After P read through the draft statement, she did not have any comments and she signed the 3/1/14 Stmt as witnessed by Choy. Kwan claimed he did not at any time abuse his position as assistant CI or otherwise and/or exert duress and undue influence on P. 794.P had no allegation against Choy. The Choy WStmt and the Choy PStmt confirmed that Choy witnessed the 3/1/14 Stmt taken by Kwan from P from 3:15pm to 3:45pm on 3 January 2014, and that nothing irregular occurred. Choy explained she acted as “…… [witness] to the truth and accuracy of this statement and the fairness, because [P] was a female student and [Choy is] a female police officer ……” According to Choy’s recollection, probably the particulars in the top section above her signature were prepared beforehand. She could not quite remember how the main body of the 3/1/14 Stmt was made because (a) it was taken many years ago in 2013 and (b) “…… at that time it was very normal, nothing special happened …… and because [P] did not raise any complaint, so [Choy does] not have any special recollection ……” But Choy remembered that during the statement-taking process there were questions by Kwan and answers by P mainly about the contents of the 3/1/14 Stmt even though she could not remember the details of what was said. Choy said she believed P did not make any additions or alterations. Choy signed once on the 3/1/14 Stmt as witness. 795.According to the Kwan 2nd WStmt and under cross- examination, Kwan did not recall whether a copy of the 3/1/14 Stmt was provided to P after the meeting or whether she had asked for a copy, but the usual practice was that the interviewee would be at liberty to request for a copy subsequent to the interview. 796.After Kwan took the 3/1/14 Stmt from P, he took the Lee 1st PStmt from Lee from 3:50pm to 4:10pm on the same day again with Choy as witness. In such statement, Lee confirmed she was then in her 13th week of training, and stated as follows (E/467):
Lee signed at the bottom of the statement and at the top to give a confirmation (similar to the one in footnote 136 above) (which signature was countersigned by Choy as witness). 797.On 20 March 2018, Lee (then promoted to the rank of SIP and was attached to Tuen Mun Police Station) self-prepared the Lee 2nd PStmt about the Accident as follows (E/477-478):
Lee signed at the bottom of the statement and at the top where gave a confirmation (similar to the one in footnote 136 above). 798.Mr Sakhrani submitted that the contents of the 3/1/14 Stmt as fully drafted by Kwan in advance for P to sign (in almost identical language as that in the Lee 1st PStmt) clearly showed D was actively distancing itself from and hastily closing the book on the Accident (in favourable language), and hence suspicious, eg Kwan must have known the lighting was an issue relevant to the Accident and so specifically drafted it into the statement. 799.Mr Sakhrani also submitted there was no clear evidence that P was given a copy of the 3/1/14 Stmt. Bearing in mind that Kwan said it would be to the interest of both P and the HKPF to keep a record of the Accident, Mr Sakhrani argued it must have been standard procedure for a copy of such statement to be given to P and for her to sign an acknowledgement, but oddly Kwan had no recollection whether he gave a copy to her or not. 800.Mr Sakhrani further submitted that the fact Kwan hurriedly asked P to leave on 3 January 2014 was highly consistent with the evil motive of ousting P from the College and to cover up D’s failures to comply with OSH requirements relating to the Staircase. I have dealt with these allegations in Part III(b) above, and do not ascribe such motives to Kwan, Chau and/or Tan. Further, I have explained in paragraph 773 above that the prompt exit interview was arranged by HKPF’s Personnel Wing and not by Chau or Kwan. Still further, I agree with Ms Chao that Kwan in taking the 3/1/14 Stmt could not be regarded as “wrapping up P’s termination of employment” as Mr Sakhrani suggested. Kwan explained under cross-examination that the 3/1/14 Form 2 (E/461-465), P’s 3/1/14 Stmt (E/466), the Lee 1st PStmt (E/467) and Kwan’s 3/1/14 Memo (E/460) all made on 3 January 2014 were not about cessation of P’s employment but about the Accident. They were all done on 3 January 2014 because Kwan and Chau resumed duty after vacation leave respectively on 2 and 3 January 2014. HKPF as employer had a statutory duty to report the Accident (which HKPF accepted as a work-related incident) to LD, and under paragraph 6 of the OSH Incidents Protocol the completed Form 2 had to be sent to “CP (Attn: SP CS L&HM)” (ie Leave and Health Management Division of HKPF’s Personnel Wing[145]) for onward transmission to LD (see paragraphs 101-102 above). Kwan/Chau also recognised this as part of the Standard Procedures (see paragraph 97 above). So after obtaining the 3/1/14 Stmt and Lee 1st PStmt, Kwan on behalf of “SSP FTC” (ie school head and the most senior officer in charge of the College) submitted the 3/1/14 Memo to “CP (Attn: SP CS L&HM)” with copy to “SP OSH SUP”[146] and “FWO HK1”[147] together with the 3/1/14 Form 2 on the same day (see paragraph 102 above). The contents of the 3/1/14 Memo were largely drawn from the 3/1/14 WStmt and the Lee 1st PStmt (see paragraph 816 below), so it was quite plain that obtaining such statements were part of the standard OSH procedures for reporting to HKPF’s Personnel Wing for submission of the 3/1/14 Form 2 to LD via centralised handling. Since Kwan and Chau resumed duty after vacation leave on 2 and 3 January 2014 respectively, and they had a discussion about P in the morning of 3 January 2014, it was unsurprising that Kwan would attend to such matters later in the day on 3 January 2014, especially when it transpired P decided to and did resign on that day. In my view, there was no unseemly haste. 801.There was no dispute that Kwan drafted the 3/1/14 Stmt. I have explained in paragraph 598(b) above how Kwan gathered largely information about the Accident from others (much of which was second-hand information) to prepare the 3/1/14 Stmt. So he fairly read out the contents of the 3/1/14 Stmt that he drafted, allowed P to read such statement, and told her to alter or add to the statement as she wished. As regards the description in the 3/1/14 Stmt as to the sufficiency of lighting at the time of the Accident, such description likely came from Kwan’s own impression at the site inspection and also information obtained from Lee, but I have found I cannot safely rely on such evidence although I do not see this as undermining their overall veracity (see paragraphs 627-635 above). On balance I disagree Kwan’s draft of the 3/1/14 Stmt reflected active distancing from and hasty closure of the book on the Accident. 802.Rather, I find the 3/1/14 Wstmt was made/obtained as a record about the work-related Accident in respect of which Kwan/Chau knew required compliance with both internal and external reporting provisions under the OSH Incidents Protocol and also Chau’s Standard Procedures, which compliance was effected not only by the 3/1/14 Memo and 3/1/14 Form 2 referred to above, but also by the OSH Accident Report Form dated 14 January 2014 prepared by Chau (see paragraph 103 above and Part XXXIII below). 803.Again, I see nothing sinister about Kwan not recalling whether a copy of the 3/1/14 WStmt had been given to P or whether she asked for a copy. He fairly acknowledged that P could request for a copy and it would be given. I bear in mind this was not statement taking from witness or suspect in a criminal investigation (although Kwan adopted the convenience of using a police form for witnesses in respect of the 3/1/14 WStmt). Rather, the 3/1/14 WStmt was a record between HKPF as employer and P as employee, and in this sense HKPF was no different from any other employer who took a statement by its human resources staff, safety officer or insurance agent from the injured employee about how the injury on duty happened. In my view, it was debatable whether Kwan was obligated to provide a copy of the 3/1/14 Stmt to P on completion of the statement, and although Mr Sakhrani suggested it must have been standard procedure, he did not point to any protocol or standing order requirement to such effect. 804.Be that as may, I am prepared to proceed on the basis that Kwan did not give a copy of the 3/1/14 Stmt to P on 3 January 2014, but again I see nothing sinister about this. On 3 January 2014, Kwan let P know the contents of the 3/1/14 Stmt by reading them out and letting P read the statement. The 3/1/14 Stmt together with the Lee 1st Stmt went into the OSH file on the Accident, and was still available by the time P asked for a copy in 2017. Even if there was an evil scheme to oust P from the College (which I disagree), there was no stopping P (who allegedly knew some of the contents were untrue) from requesting for a copy immediately after 3 January 2014 when she escaped from the alleged duress and undue influence of Kwan/Chau. I am quite unconvinced that Kwan had any intention of hiding the 3/1/14 Stmt from P. 805.Kwan said under cross-examination that during his meeting with P after her exit interview, he probably informed her about employment benefits and made arrangements for her return of the stores. P denied this, saying there was no discussion of this at all, especially when she asked Kwan/Chau about what benefits she could receive after resigning. 806.Mr Sakhrani complained there was no record that Kwan told P about her employment benefits, and he asked me to cast a jaundiced eye on Kwan’s assertion that was only elicited under cross-examination, especially when Kwan had to give such answer to helpfully conform with his duty and when he could not remember the details of his discussion with P when she came to tell her she intended to resign. Mr Sakhrani also argued that if P had been so advised, she would have asked for periodical payments from the outset, and there would have been an orderly process of her claim for EC particularly as to periodical payments. Mr Sakhrani submitted this went to D’s motives to get rid of P, and suggested that “…… [clearly] D was hoping that no [MCs] would be tendered by P in the future. The fact that they only paid periodical payments until 5 March 2015 …… shows that D attempted to evade payment until absolutely necessary, when [MCs] were tendered ……” It was also said it would have been illogical for P to have endured a long period without income, with uncertain future prospects and take no action despite receiving letters from LD, so it was more realistic that she was only aware of her rights when she eventually attended LD. 807.I note from Kwan’s evidence that he was diffident about whether he told P about her employment benefits because he only said he probably did, and he did not elaborate on the employment benefits. I find on balance that quite probably upon taking the 3/1/14 Stmt Kwan told P the statement was about the Accident, which was a reportable work- related injury in relation to her EC without much further elaboration. I do not think Kwan explained to P about periodical payments and sick leave. As far as he was concerned, P was no longer on sick leave after 28 December 2013, and P was on full pay during her sick leave. As Ms Chao said, it was not Kwan’s job to explain periodical payments to PIs or departing PIs. On 3 January 2014, Kwan promptly forwarded the 3/1/14 Memo and the 3/1/14 Form 2 to HKPF’s Personnel Wing. As seen above, external reporting to LD was subject to centralised handling by the Personnel Wing at HKPF headquarters, and processing of periodical payments and EC entitlements were also subject to centralised handling by the Welfare Team of the Personnel Services and Staff Relations Branch under HKPF’s Personnel Wing (see footnote 147 above). As explained in paragraphs 131(a) and 739 above, I am unable to discern any obligation to explain EC entitlements. But even if there was a duty to explain sick leave entitlements to staff, it would be a matter for HKPF’s Personnel Wing rather than Kwan, Chau and/or Tan who before P resigned were her supervisors in chain of command in relation to police duties. Thus, I could not see how Kwan’s and Chau’s alleged evil scheme to oust P from the College could be discerned from their alleged non-discussion of EC matters with P. But there was no suggestion that HKPF’s Personnel Wing and/or Welfare Team acted in concert or colluded with Kwan and Chau (or perhaps Tan too) to oust P from the College, hoping no further MCs would be submitted. 808.Further, I am at a loss to understand Mr Sakhrani’s complaint that “…… [one] would expect D to have provided written correspondence to P after the [Accident] (given that Kwan had submitted a Form 2) in relation to the same. She would have been told where to go to ask for periodical payments and reimbursement of medical expenses as well as advised which internal forms to complete ……” (my emphasis) in relation to motives to oust P from the College. Given that HKPF had centralised handling of Form 2 and EC matters (see above paragraph) by HKPF’s Personnel Wing (and payment of periodical payments by HKPF’s Finance Division), it was plainly not for Kwan, Chau and/or Tan to write to P on the matters Mr Sakhrani suggested, and I could not see how absence of such letter from these divisions that were external to the College would reflect Kwan’s, Chau’s and Tan’s motives to get rid of P from the College. P did not complain that these other divisions were also part of the evil scheme to oust her from the College. 809.Further, in suggesting that “D” was hoping that no MCs would be tendered by P in the future, which therefore demonstrated “D’s” attempt to evade periodical payments until MCs were tendered, Mr Sakhrani did not say which of HKPF’s employees harboured such hope and evasive intent. If fingers were pointed at Kwan, Chau and/or Tan, I have explained in Part III(b) above why this could not be the case, and in any event the matter of periodical payments were out of their hands as it was not something handled by the College but by HKPF’s Personnel Wing (see paragraphs 807-808 above and Part XXXV(h) below). But I cannot see such bad intent could be attributed to HKPF’s Personnel Wing (including the Welfare Team) and/or Finance Division (and P did not suggest so). 810.When the 3/1/14 Form 2 was submitted to LD, LD promptly wrote to P on 20 January 2014 to give relevant and useful advice, requesting her to contact LD about the 3/1/14 Form 2, to submit her original MCs to HKPF regularly and to retain photocopies thereof, to read LD’s brochure with pointers for employees in handling EC cases, and to contact LD if she had queries (see paragraph 826 below). One would have thought it was the LD who would advise the employee on the relevant procedures upon receipt of Form 2 from the employer, and the employer to process periodical payments upon receipt of MCs. I believe the force welfare officers (FWO) might answer questions arising from processing applications for periodical payments as evident from correspondence between the HKPF’s Welfare Team (see footnote 147 above) and P in respect of P’s subsequent application for her periodical payments (see Part XXXV(f) and (h) below). The fact P did not pay attention and/or act on such sensible advice by the LD on EC procedures such that she did not receive periodical payments for some time was regrettable, but it did not mean D was at fault or, more importantly, Kwan, Chau and/or Tan were to be blamed for having bad motive of pushing her out of the College when on 3 January 2014 she was not on sick leave (as far as they and HKPF were concerned) and concealed her needed surgery and extensive rehabilitation (which might have entailed sick leave) from them. In my view, this was just a reflection of P’s Personality that she would distract and dissemble by trying to blame others for her own problems. Indeed, as seen below, when P later submitted her MCs to HKPF in March 2015 and thereafter, HKPF processed/paid (and was not evasive in processing and paying) her periodical payments. 811.I see no merit in P’s various complaints, and on balance I accept Kwan’s and Choy’s accounts as to the meeting for taking the 3/1/14 Stmt set out above. XXXIII. OSH PROCEDURES 812.According to the Chau 2nd WStmt, HKPF had a well- developed OSH system that was established with a view to maintaining OSH within HKPF and to minimise the happening of OSH incidents, which included relevant internal documents such as the OSH Incidents Protocol, the Force Procedure Manual (Chapter 88 on OSH) (E/589-602) and the Local Safety Risk Management Protocol (E/527-560). 813.According to the Chau 2n WStmt, after P resigned on 3 January 2014, Kwan discussed his investigation findings of the Accident with Chau, and in accordance with the Standard Procedures they assessed the case thoroughly (eg whether the Accident was in the course of employment, whether any suspicion was involved, and whether there were ways to prevent reoccurrence) and they agreed the Accident should be classified as a “level 2” OSH incident since P only had 9 days’ sick leave (ie 20-28 December 2013). Likewise, the Kwan 2nd WStmt also stated he and Chau discussed HKPF’s relevant OSH guidelines/manuals, and agreed the Accident be classified as “level 2” OSH incident[148] (since P received more than 4 days’ sick leave) which only required simple reporting. 814.According to Kwan 2nd WStmt, after taking the 3/1/14 Stmt, Kwan on the same day (ie 3 January 2014) completed the OSH procedures, including completing the 3/1/14 Form 2 as required under the ECO, and preparing the 3/1/14 Memo to HKPF’s Personnel Wing.[149] 815.According to the 3/1/14 Form 2 dated 3 January 2014 and signed by Kwan as an officer of HKPF on behalf of P’s employer (E/461-465), it was stated that at 6:15am on 20 December 2013 P suffered knee dislocation injury as a result of the “[slip], trip or fall on same level” Accident “[on] the way to attend training programme” that “occurred in the course of work” at a Staircase. 816.The 3/1/14 Memo dated 3 January 2014 by Kwan for “SP FTC” to HKPF’s Personnel Wing and titled “Report of Injury While on Duty Woman [PI] 16964 [P]” stated that:
817.On 14 January 2014, Chau completed the OSH Accident Report Form with Parts 1 and 2, which 2 parts were of the same form but which he printed separately (“OSH Accident Report Form”). He explained under cross-examination that since P suffered injury at work, OSH procedures required him to complete such form. Part 1 was intended for external disclosure to the Commissioner for Labour and contained the following information:
818.Part 2 of the OSH Accident Report Form was plainly for internal use by HKPF and contained the following data:
819.The description of the Accident in Part 1 of the OSH Accident Form stated that P was discharged on 21 December 2013 with sick leave on 20-28 December 2013. Since the OSH Accident Report Form was prepared on 14 January 2014, Chau said in re-examination that it was likely he had not seen the 3rd MC otherwise he would have put down in such form P’s sick leave was up to 3 January 2014. XXXIV. SUMMARY ON POST-ACCCIDENT EVENTS 820.In summary, I disagree with and on balance reject P’s claim that (a) both Kwan/Chau acted in concert but separately to pressure her to resign, (b) she was left with no choice but to resign in front of Kwan so she did not put up a fight when Kwan told her to change the wording in the Resignation Letter, (c) when Kwan made her sign the pre-prepared 3/1/14 Stmt he knew she had no choice but to sign it even though the contents were not true, (d) after pressuring her to resign Kwan/Chau pushed her to leave with her belongings as soon as possible, (e) Kwan/Chau/Tan failed to give her the chance to recover and failed to support her as required, and instead bullied her and pushed her out of the College. I reiterate my observations and findings in Part III(b) above, and find that D (through Kwan, Chau and Tan) had acted properly and reasonably, and it was P who for own reasons voluntarily decided to quit and leave HKPF. She might not be happy with the decision and she might have regrets later, but it was her voluntary choice made on 3 January 2014. 821.In light of the above, P’s claim that rested on the post-Accident events failed. Hence, P’s claim in the present action fell to be dismissed, and in principle there was no need for me to consider the issue of quantum. However, for the sake of completeness, I shall do so briefly on assumed basis. Even on an assumed basis, the question of quantum posed some difficulty because counsel’s submissions canvassed 4 different outcome scenarios:
822.My findings and determination was Scenario 4. For convenience, I shall discuss the issue of quantum on the assumption of Scenario 2. It is inappropriate to add length to this Judgment by considering Scenarios 1 and 3 as well, and even though I shall on assumed basis making appropriate findings, it is not possible to do so on all aspects of the issue of quantum due to potential conflict with my primary findings of fact. In those circumstances, I shall make findings if I could, but there were certain aspects I could not make final determinations or assessments. XXXV. POST-RESIGNATION EVENTS, TREATMENT RECEIVED AND PERIODICAL PAYMENTS / EC (a) After resignation 823.The Psy Jt Report recorded P’s account to the Psy Experts about P’s situation after her resignation as follows:
824.Whilst I accept P was unhappy and upset after her departure from HKPF, I am not persuaded it was because of the duress and undue influence of Kwan and Chau, or because she was pushed out of the College by them. Rather, I think she was worried about her knee condition, the upcoming follow-up at UCH’s DOT for operation decision, the long road of physiotherapy and rehabilitation ahead, and the uncertainty of the surgical / rehabilitative outcome, and she felt frustrated and depressed because her own physical problems and her weaknesses in PI training let everyone down, so she did not take kindly to probably friendly enquiries by her friends and others. It was strange on her case that when she was aggrieved that HKPF (through Kwan, Chau and Tan at the College) forced her to resign and ousted her from the College that she would pin her hope on re-applying to join HKPF (when HKPF obviously did not want her as their PI let alone as an IP and she was upset and angry over treatment at their hands) and that only if she failed in her application to re-join HKPF that she would contemplate joining other uniformed services. In my view, it was more likely than not that she resigned voluntarily on her own due to her needed treatment for her knee and her concern that she might not pass out due to her knee injury and needed treatment on top of her weak PI performance, but as there were no hard feelings between her and HKPF over her departure, she wanted to proceed with surgery and rehabilitation straightaway, so that when she was in better physical shape upon recovery she would apply to re-join HKPF if she could. In my view, this led to her decision to proceed with operation at the follow-up at UCH’s DOT on 21 January 2014. (b) Letter from LD on EC matters 825.According to the P 1st WStmt, P claimed HKPF never informed her about her right to claim EC and common law damages, and the way Kwan/Chau acted made her think she would not have any welfare benefits regarding the Accident, so she discarded her MCs. On balance, I do not accept P’s assertions. I reiterate my findings in Part XXXI(f) above when I rejected her allegation that she had asked Kwan/Chau about welfare benefits. Whilst I agree that Kwan, Chau and Tan did not discuss or advise her in detail about entitlements to periodical payment should she in future have further sick leave in relation to the Accident after her departure from HKPF, I find they never state or even give the impression that she had no EC entitlements. In my view, the fact that they all accepted the Accident was a work-related incident and caused the 3/1/14 Form 2 to be submitted via HKPF’s Personnel Wing to LD clearly suggested otherwise. 826.In January 2014, P received a letter dated 20 January 2014 from LD (a) requesting her to contact them about HKPF’s notification of her EC case in respect of the Accident, (b) urging her to submit her original MCs to her employer regularly and to retain photocopies of the same, (c) providing her with a copy of “Handling of [EC] case – Points to Note for Employees” and drawing her attention to the parts on handling normal/disputed work injury cases, and (d) inviting her to contact the LD if she had queries (E/480). 827.According to the P 1st WStmt, (a) P felt it was odd for the LD to send her such letter because Kwan/Chau already indicated she would not be entitled to any welfare benefits as an employee of HKPF, and (b) all her energy was then focused on the then upcoming surgery so as to get well as soon as possible, so she did not pay attention to such letter. P claimed that she telephoned the LD and obtained via the appointment booking system an appointment for interview meeting in/about 1-2 months from mid-February 2014. As P had to undergo physiotherapy and to psychologically prepare herself for the surgery during that period, she did not accept the appointment so offered. 828.For reasons explained in paragraph 825 above, I do not accept P’s claim in (a) above. Rather, it was likely that (b) above was why P did not act on the letter. On 21 January 2014 (which was around the time she received the letter from LD) P attended follow-up at UCH’s DOT and agreed to proceed with the reconstruction/corrective surgery, which likely explained why she did not act on the advice in letter. But she did not ignore the letter entirely for she tried to book an appointment to see a labour officer, but the available timeslots did not suit her. In my view, the fact that P knew she had to look into the matters advised in the letter dated 20 January 2014 by LD but decided to put aside for her own medical reasons, whilst understandable, clearly showed D could not be faulted. In short, D’s alleged omission to tell her about periodical payments was not causative of delay in receipt of the periodical payments for the letter by LD told her all she needed to know irrespective whether she booked an interview to see a labour officer. The fact P did not act on the advice in the letter by LD by discarding her MCs and not submitting them to HKPF (contrary to express advice in the letter by LD) was not D’s fault. Regretfully, this again evoked P’s Personality that she sought to distract and dissemble and to blame others for her own problems which she did not frankly and boldly face. (c) 21 January and 18 March 2014 829.As alluded to above, P attended follow-up at UCH’s DOT on 21 January 2014 (F/705), but P did not disclose MNR for such consultation as well as for the further follow-up with UCH’s DOT on 4 March 2014 at trial. Interestingly, P attended TKOH’s AED on the day before on 20 January 2014 (see agreed summary of attendance records and medical receipts – F/705), but P did not explain what such AED visit was for and she did not disclose MNR for the same. 830.At the follow-up at UCH’s DOT on 21 January 2014, P committed to surgical treatment for her left knee. The Consent Form dated 21 January 2014 signed by P (G/923-927) stated the diagnosis was “left knee recurrent dislocation of patella”, and the relevant procedure was “arthroscopic left knee and ligament reconstruction” with a view to “decrease chance of dislocation”. P had anaesthetic assessment on 18 March 2014 (G/929 and F/705), and P and the anaesthetist signed the relevant part of the Consent Form at that consultation. 831.P agreed the doctor explained to her and she knew that the surgery was for her left knee recurrent dislocation of patella, and that the procedure was aimed to decrease chance of dislocation. Although P disagreed under cross-examination that the surgery was in relation to structural problems of her left knee, I find the proposed surgery essentially was to deal with P’s pre-existing P’s Knee Condition. Indeed, the Ortho Experts accepted the 1st Surgery was of the same nature as the soft tissue realignment operation offered by UCH’s DOT after the 2nd Episode. (d) Physiotherapy pending surgery 832.According to the physiotherapy reports dated 19 November 2015, 18 January 2016 and 21 February 2017 by TKOH’s physiotherapy department, on 27 December 2013 P was referred by UCH’s DOT for “recurrent left patella dislocation”. At the 1st treatment session on 28 January 2014 (ie after P decided to have surgery), P subjectively complained of left knee weakness and walking tolerance around 30 minutes, but she did not feel any left knee pain in daily activities. On objective examination, (a) there was mild swelling over left knee and tenderness at MPFL, (b) left quadriceps wasting was noted, (c) left knee active range of motion was 0°-120°, and (d) P walked with a stick independently. According to TKOH’s clinical management sheet for 28 January 2014, objective examination also revealed (i) J sign and apprehensive sign were positive (G/916). When P next attended on 14 February 2014, she complained of left medial patella pain, and objective examination showed inter alia no swelling over left knee, tenderness over MPFL, left knee active range of motion was 0°-120°, apprehension test and J sign were positive, mild quadriceps wasting was noted, and ambulation with stick (G/916). (e) 1st Surgery 833.According to the medical reports dated 1 April and 24 December 2015, 30 March 2016 and 19 May 2017 by UCH’s DOT, in view of recurrent left patella dislocation, reconstruction operation (patellar stabilisation with MPFL reconstruction) was done on 9 May 2014. The operation was uneventful. Post-operatively, the wound was well. P was given a hinged knee brace and was able to walk with 2 elbow crutches upon discharge on 21 May 2014. Physiotherapy and rehabilitation were given. Upon subsequent follow-up, clicking sensation/ sound was noted during active flexion 30° from full extension movement of the left knee. 834.The Ortho 1st Report noted that according to the operation record dated 9 May 2014 prepared by UCH’s DOT (G/921-922), the operative diagnosis was “[recurrent] dislocation of patella (MPFL tear with osteochondral fragment)”, and the arthroscopic findings were “no chondral lesion, osteochondral fragment at medial border of patella, ACL/PCL intact, no meniscal tear”. The Ortho Experts explained that patella stabilisation (MPFL reconstruction) using gracilis tendon as tendon graft was performed. 835.According to the discharge summary dated 20 May 2014 by UCH’s DOT (G/919-920), P was expected to be discharged the following day (ie 21 May 2014). The discharge note therein stated inter alia as follows:
The plan of management was to discharge home with follow-up in 3 weeks at “rehab clinic” and then follow-up at sports clinic, and “OS D14, daily dressing prn [pro re nata or as needed]” with sick leave granted until next follow-up. 836.According to UCH’s prosthetics and orthotics progress note dated 30 May 2014 (G/936), P attended UCH’s allied health department, and it was noted that at 3 weeks’ post-operation P had good compliance on brace, which was adjusted to “release the hinge ROM [range of movement] 0-60 deg [degrees]”. There was nil swelling over knee, limited range of movement of 0º-40º, and it was “[non]-tender”. P was recommended to keep the brace for 3 weeks. According to the Psy Jt Report, “…… P’s first operation was around May 2014. After the operation, she was in hospital for half a month. Her knee was painful and she could not bend her knee at all. She underwent physiotherapy but there was little progress. The pain was persistent and despite physiotherapy 3 times per week, her knee still could not be bent fully. She was also affected by the inconvenience of going to and from the hospital by public bus while on a wheelchair, with her left leg extended as she was unable to bend it. Other passengers gave her unfriendly looks and she felt ashamed of herself ……” In my view, whilst P was unhappy and sensitive about her left knee, it was clear that UCH’s allied health department found her progress satisfactory. Plainly P’s left knee had to be immobolised by knee brace after the 1st Surgery for the wound to heal with gradual increase in range of movement and weight bearing before intensive physiotherapy could begin. (f) Further letter from LD 837.In early August 2014, P received a further letter dated 31 July 2014 from the LD which urged her to book an appointment and then call in person at LD’s occupational medicine unit as soon as possible “for sick leave clearance and or arrangement for medical assessment board” (E/493-494). According to the P 1st WStmt, P attended LD in/about August-September 2014, and asked why she received the aforesaid letters from the LD when she had already left HKPF and would not be entitled to enjoy welfare benefits nor to claim damages as a HKPF employee would. But the labour officer (a) told P she could still claim EC despite departure from HKPF, (b) wrote on 3 slips of paper the contact details of relevant personnel at HKPF’s police headquarters (E/495), and (c) asked P to provide all MCs to LD to deal with sick leave clearance. According to the P 1st WStmt, P therefore applied for MCs from the relevant hospitals, which explained why the printing dates in some MCs from UCH were after 15 September 2014. P sent the MCs she obtained from UCH to HKPF’s Welfare Team under cover of her letter dated 13 November 2014 (E/497, see paragraph 551(c) above). For reasons explained above, I see no merit in P’s complaint in the P 1st WStmt that even though HKPF accepted she was injured at work on 20 December 2013 and submitted the 3/1/14 Form 2 to the LD, they only started to properly handle her EC when they received her letter dated 13 November 2014. The short answer was that P did not submit MCs to HKPF, and there nothing for HKPF to process for periodical payments. Whilst I accept P was busy with the 1st Surgery and subsequent rehabilitation, she had been advised by LD to submit her MCs to HKPF, and she knew she should liaise with LD as she tried to in January 2014 by booking an appointment, so I do not see how any alleged reticence on the part of HKPF was causative of any loss when she was already given the necessary information and guidance (eg she should submit any MC concerning the Accident to HKPF for periodical payments) by LD in their letter dated 20 January 2014 even without need for an appointment. (g) 2nd Surgery 838.According to the P 1st WStmt, in October 2014 P’s left knee was still painful, stiff and weak. According to the Ortho 1st Jt Report, after the 1st Surgery to stabilise the left patella, P continued to receive physiotherapy to strengthen the left knee. P told the Ortho Experts that after the 1st Surgery there was decrease in bending the knee, and some “click” on bending. In the meantime, P had 5 further follow-ups with UCH’s DOT on 11 June, 25 June, 23 July, 2 September and 7 October 2014 (F/705-706), and P again consulted Dr J Lam on 31 October 2014 for his opinion. According to Dr J Lam’s medical report dated 22 February 2016:
839.According to the Ortho 1st Jt Report, P continued with physiotherapy, but stiffness and clicking persisted. She was told there was scarring, and in November 2014she received another surgery (knee arthroscopy) to release the scars. P had follow-up with UCH’s DOT on 4 November 2014, and had pre-operative assessment by UCH’s DOT on 14 November 2014 (F/706). Left knee arthroscopy was done on 24 November 2014 for retropatellar scar shaving, and the procedure was uneventful. According to Dr J Lam’s medical report dated 22 February 2016, “[the] last time [Dr J Lam] met [P] was on 18 December 2014. According to her, on 24 November 2014, she had synovectomy and MUA of the left knee at UCH. However, she still complained of click and stiffness over the patellofemoral joint. Flexion and extension produced an audible click over the patellofemoral joint at 30 degrees flexion. The range of motion is 5 degrees to 120 degrees. There was no MRI available to assess the cartilage and soft tissue status. [Dr J Lam] would advise her to continue with physiotherapy for the moment”. 840.According to the medical reports dated 1 April and 24 December 2015, 30 March 2016 and 19 May 2017 by UCH’s DOT, P was put on continuous passive movement and vigorous active and passive mobilisation exercise afterwards. She was discharged on 29 November 2014 (F/706). P was given intensive physiotherapy and strengthening on out-patient basis for thigh muscle rehabilitation. P had overall 137 sessions of physiotherapy and was granted sick leave from 20 December 2013 to 6 October 2016 (1,022 days). There was no more patella dislocation since the Accident. (h) Periodical payments 841.On 7 January 2015, HKPF wrote to ask P to complete and return “Reply Slip” for record and onward submission to the LD (E/504). On 6 February 2015, at the request by Ms Wong of HKPF’s Welfare Team (of the Personnel Wing), P gave a letter of authorisation for HKPF to obtain P’s medical reports from PYNEH, TKOH and UCH in relation to her treatment, physiotherapy and surgeries for the work injury on 20 December 2013 with copies to her (E/525). According to the P 1st WStmt, on 5 March 2015 D paid P periodical payments amounting to $397,036.36 (F/744A-744B). 842.On 22 June 2015, LD’s EC division wrote to P (a) noting that P’s EC claim had not been settled despite lapse of 18 months since the Accident, (b) drawing P’s attention to section 14(1) of the ECO (ie time limit for filing EC claim in the District Court) and section 10(5) of the ECO (ie extension of sick leave for more than 24 months), and (c) urging her to contact LD’s staff to facilitate processing of her claim according to her wishes, including referral to the Legal Aid Department (“LAD”) for further assistance (E/505). By a letter dated 23 July 2015 by LD’s EC division, (a) it was noted that P proposed to apply for legal aid to commence EC claim in the District Court, (b) P was urged to bring the attached referral memo to the LAD to proceed with such application, and (c) P was again reminded of sections 14(1) and 10(5) of the ECO (E/509). 843.According to the P 1st WStmt, on 14 September 2015, D further paid P periodical payments amounting to $702 (F/744C-744D). By October 2015, P had already provided to HKPF 5 MCs for sick leave from 18 February to 4 November 2015 to follow-up. P telephoned HKPF’s Welfare Team (of the Personnel Wing) numerous times afterwards to make enquiries, but she claimed she not receive any reply. 844.On 5 August and 8 December 2015, LD wrote to ask P to book an appointment and then to call in person to LD’s occupational medicine unit “for sick leave clearance and or arrangement for medical assessment board [“MAB”]” (E/513-514). 845.According to the P 1st WStmt, on 11 April 2016 P C Woo & Co agreed to issue P sick leave payments for the period from 19 February to 4 November 2015. On about 21 April 2016, D notified P to receive periodical payments for 19 February 2015 to 4 November 2015 ($253,612.80) at HKPF’s Finance Division. (i) Rehabilitation 846.According to the Ortho 1st Jt Report, the 2nd surgery was followed by a course of intensive physiotherapy. P had follow-ups with UCH’s DOT on 24 December 2014, 18 February, 21 April, 3 June, 12 August, 23 September, 4 November, 16 December 2015, 15 March, 7 June and 20 July 2016 (F/706-708), and occupational therapy with UCH on 5, 12, 19 and 26 January and 2 February 2015 (F/706). According to the Ortho 1st Report, P said she felt the stiffness was about 40% better and there was no further patella dislocation, but there was increase in pain in the left knee especially on running. P received further physiotherapy till about the end of 2016 when her condition was static. She was discharged from physiotherapy, and her sick leave expired. According to the Ortho 1st Jt Report, P told the Ortho Experts she attended UCH’s orthopaedic clinic for follow-up. She so attended in August 2017, and the then next follow-up was in August 2018. 847.According to the physiotherapy reports dated 19 November 2015 and 18 January 2016 by TKOH’s physiotherapy department, P was referred for physiotherapy by UCH’s DOT for (a) left MPFL reconstruction (ie 1st Surgery) on 12 May 2014, (b) left synovectomy with MUA (ie 2nd Surgery) on 27 November 2014, and (c) left patella subluxation on 13 October 2015.[151] P received physiotherapy treatment from 28 January 2014 to 5 August 2016.[152] P’s condition at the last treatment on 5 August 2016 was as follows: (a) on subjective examination P claimed “left knee was discomfort in down stairs. Left knee crepitation sound was produced occasionally in knee movement. Her walking tolerance was 60 minutes”, and (b) on objective examination there was neither increased temperature or increased swelling for the left knee, active range of movement of the right knee was 0°-140°, muscle power of left quadriceps and hamstrings were respectively grade 5- and grade 5, single leg standing both the left and right sides was more than 2 minutes, and functionally she walked unaided independently and stably. Since P’s physical condition was quite stable, she was discharged with home exercises on 5 August 2016. 848.According to the medical reports dated 30 March 2016 and 19 May 2017 by UCH’s DOT, at P’s follow-up on 15 March 2016 the scar pain improved (with mild soreness over hamstring site) and active range of movement of left knee was 0º-135º, and P planned to resume duty after next follow-up visit on 7 June 2016 (G/937). At the follow-up on 7 June 2016, P was able to walk unaided, her left knee pain was minimal, active range of movement was 0°-140°, quadriceps power 5-/5 and she did not require analgesics (G/938). According to the medical report dated 19 May 2017 by UCH’s DOT, “…… [P] is not confident to resume her police training due to weakened left knee extension power (grade 5-) ……” This was echoed in the consultation notes of the sports clinic of UCH’s DOT dated 7 June and 20 July 2016 (G/938) which recorded that “lack of confidence to return to police training (no light duty can be arranged as she was a police trainee)”. At the consultation on 7 June 2016, P was referred to assessment by MAB, and her sick leave would cease once MAB assessment was done. At the consultation on 30 June 2016 when P was pending MAB assessment on 6 October 2016, she was again informed that sick leave would cease once MAB assessment was done. Eventually, MAB assessment was done on 6 October 2016 (E/515) with sick leave granted until the same day. (j) Form 7 and EC 849.On 20 October 2016, MAB wrote to P (a) sending her Form 7 of the same date that assessed the “period(s) of absence from duty necessary as a result of injury” (ie from 20 December 2013 to 6 October 2016) and the percentage of “loss of earning capacity permanently caused by the injury” (3.5%) in respect of her “left knee injury resulting in left knee scar, pain, stiffness and weakness” (F/702), and (b) advising her of the right to raise objection to and/or to appeal against the assessment (E/520). 850.After the Accident, D paid P advance payments in the total sum of $651,351.16. Ultimately, D paid to P EC (inclusive of periodical payments from 20 December 2013 to 6 October 2016) in the total sum of $1,055,060.90 (F/744). (k) Chinese medical treatment 851.According to the Ortho 1st Jt Report, P also attended Chinese medical practitioner for treatment of her left knee including acupuncture for over 10 times, and there was some improvement after treatment. According to the schedule of attendance records and medical receipts (F/707-708), P consulted TKOH’s HoHCS on 18, 21 and 25 April, 9, 18 and 25 May, 17 and 23 June, 4 and 14 July and 11 November 2016. However, according MNR of TKOH’s HoHCS, (a) the attendances on 18, 21 and 25 April, 9 May and 11 November 2016 were unrelated to P’s left knee, (b) there was no record of the consultation on 18 May 2016, and (c) the attendances on 25 May, 17 and 23 June, and 4 and 14 July 2016 were partly in relation to the left knee, and partly in relation to P’s gastrointestinal and menstrual complaints (G/941). 852.Apart from some Chinese medical treatment unrelated to the left knee but which medical expenses were subject of P’s claim, P also received medical treatment post-Accident for ailments other than her left knee. (l) Other ailments 853.Right shoulder/hip/knee/ankle P had follow-ups with the orthopaedic clinic (general) of TKOH’s DOT for right shoulder, hip and knee problem. P had follow-up with TKOH’s special outpatient clinic on 26 March and 17 October 2014 (F/705-706), but P did not give evidence as to what such follow-up was for and did not disclose any MNR for such consultations, especially when P (a) usually followed-up with UCH’s DOT for her left knee problem, (b) received physiotherapy treatment for her left knee at TKOH’s physiotherapy department, and (c) followed-up with TKOH’s DOT for her right shoulder, hip and knee problem. 854.The consultation notes for the follow-up with TKOH’s DOT on 31 July 2014 noted as follows (G/912):
The consultation notes noted future appointments with “Trauma PM1” (ie physiotherapy presumably for left knee) on 1 August 2014, “spirometry” on 15 August 2014, orthoapedic clinic (general) of TKOH’s DOT (presumably follow-up for right shoulder, hip and knee) on 11 September 2014, TKOH’s eye clinic (general) on 5 November 2014, and ENT clinic (general) on 9 January 2015. 855.The consultation notes for the follow-up with TKOH’s DOT on 11 September 2014 (G/913) gave similar history and went on as follows:
856.The consultation notes for the follow-up with TKOH’s DOT on 4 December 2014 (G/914) gave similar history and went on as follows:
The above consultation notes recorded that future appointments included “Trauma PM1” (ie physiotherapy presumably for left knee) on 5 December 2014, TKOH’s ENT clinic (general) on 9 January 2015, TKOH’s eye clinic (general) on 10 April 2015, and TKOH’s “respiratory medicine (A)” on 26 October 2015. 857.Plain MRI right hip was done by TKOH’s department of radiology on 3 February 2015. According to the MRI report of the same date (G/915),
858.There was further follow-up of P’s right shoulder, hip and knee with TKOH’s DOT on 13 October 2015 (G/911 and F/707), but P did not disclose MNR of such consultation. According to the Ortho 1st Jt Report, P attended a chiropractor for right hip/knee/ankle problems for 5-6 times, and there was some improvement after treatment. 859.Asthma On 15 August 2014, P attended TKOH for spirometry (see paragraph 854 above – F/705 and G/912). Since spirometry assessed how well the lungs work by measuring inhalation and exhalation, which had nothing to do with P’s left knee, it was unclear why this was included as a relevant item in the summary of attendance records and medical receipts (G/705). Further, P attended consultation at the specialist outpatient clinic of TKOH’s “respiratory medicine (A)” on 26 October 2015 (F/707, G/911, G/914 and paragraph 856 above). It was also not understood why such attendance was included as a relevant item in the summary of attendance records and medical receipts (F/707). 860.Allergic rhinitis P attended TKOH’s ENT clinic on 9 January 2015 and 19 August 2016 (see paragraph 856 above – G/911-914). It was not understood why such attendances were included as relevant items in the summary of attendance records and medical receipts (F/706 and F/708). 861.Eye floaters P attended TKOH’s eye clinic on 10 April 2015 (see paragraph 856 above – G/914). It was not understood why such attendance was included as a relevant item in the summary of attendance records and medical receipts (F/707). 862.Headaches and nausea According to the Ortho 1st Jt Report, P reported to the Ortho Experts that since her injury as a result of the Accident, she felt pressure when encountering matters related to “police”, and she also had symptoms such as nausea and difficulty in concentration. On 18 September 2015, P was admitted to TKOH via AED (F/707) for “migraine headache, episode of headache+ flashes + BE floaters + nausea since 1.2014, seen by OPH ?ocular migraine”. She was discharged on the following day, and the discharge summary by TKOH dated 19 September 2015 stated as follows (G/910-911):
(m) Psychiatric issues 863.According to Psy Jt Report, P gave her account to the Psy Experts as follows:
864.According to the Ortho 1st Jt Report, P told the Ortho Experts that because of the high cost of attending a private psychiatrist, and because of fear of “stigmatisation”, she did not seek psychiatric treatment till August 2017. “She attended Dr Mak, a private psychiatrist. She was told to have depression, and was issued 2 medications (one taken regularly, and one taken on a need-to basis). She was still attending Dr Mak for treatment and medications [at the time of the Ortho Exam]. She said she was referred to attend the public psychiatric service, and the first appointment would be in August 2018 ……” 865.Paragraph 15.3(a) of the Psy Jt Report referred to Dr Mak’s MNR as follows:
In paragraph 17.1 of the Psy Jt Report, Dr Lai further noted Dr Mak’s further clinical records as follows:
(n) Other attendances at TKOH’s AED and specialist outpatient clinic 866.According to the summary of attendance records and medical receipts (G/706-707), P attended TKOH’s AED on 8 October 2014, 24 July, 30 August and 4 December 2015, and 14 June 2016. There was no evidence what these attendances were for or how they were related to the Accident, and P did not adduce MNR for these attendances at the trial. Likewise, P also attended TKOH’s specialist outpatient clinic on 12 March 2015, and 12 January, 15 Feb 2016, 12 April, 3 August and 21 September 2016 (G/707-708), but there was no evidence what those attendances were for or how they were related to the Accident (bearing in mind P attended TKOH’s specialist outpatient clinic for various medical conditions), and MNR for these attendances were not adduced at the trial. XXXVI. POST-RESIGNATION EMPLOYMENT 867.According to the P 1st WStmt, from 12 October 2014 onwards, although P’s left knee was still painful, stiff and weak, she already started searching for a job. Bamboos Health Care Holdings Limited orally agreed to employ her as a management trainee, but at that time P had to undergo the 2nd Surgery so she could not take up such job. But after the 2nd Surgery, the company said they did not wish to employ P anymore. 868.As alluded to in Part III(a) above, the P 1st WStmt set out P’s 33 job applications from 9 October 2015 to 7 January 2017, but claimed most employers did not invite P for interview and/or gave no reply. P was interviewed by ISS Facility Services Limited for the position of management trainee, by G2000 (Apparel) Ltd for the position of management associate, and by King’s College for the position of teaching assistant, but there was no further reply (F/756-759 and F/795-797). P attended written test by the Customs and Excise Department for the position of assistant trade controls officer, but she had no interview and no further reply (F/784-785). During her job searches, P thought the potential employers did not wish to hire her because (a) her sick leave was almost 3 years long, and (b) in a competitive recruitment process young applicants who had no previous accident/injury were preferred. 869.P was eventually hired by Pricerite Stores Limited on 29-30 November 2016 as part-time stocktaker in November 2016, but her contract ended in/about a week (F/820-821), and her total income over 2 days was $710. From 17 November 2016 to 9 March 2017, P worked as a temporary homework tutorial class teacher at Seedling Education Centre, and her job duty was to teach languages to secondary and primary school students. Her hourly wage was $100-$120, and her total income during this period was $2,370. 870.P claimed she wanted a more stable and long-term job, and she also wished to serve Hong Kong citizens and to uphold justice, so on 2 March 2017 she applied to read CUHK’s juris doctor law programme. Pending the outcome of such application, P worked at the Wan Chai District Office as a community organiser for hourly wage of $52 from 1 April 2017 to 21 February 2018. Her work mainly involved assisting in preparation of minutes of meetings, and her total income during this period was $15,382 with MPF benefits of $769.13 (employer’s contribution). 871.On 9 June 2017, P was employed by the Companies Registry as a registration assistant on contract basis from 9 June to 8 December 2017 at monthly salary of $16,900. But she told Dr Mak that “…… she felt embarrassed and shameful when she was asked why she would do this job despite her qualification ……” (see paragraph 865 above). So when on 9 August 2017 she received a letter from CUHK that advised she was accepted to join the juris doctor law programme, she resigned from the Companies Registry by giving 1 month’s written notice with last working day on 18 September 2017. P’s total income at the Companies Registry was $55,717.06 with MPF benefits of $2,309.67 (employer’s contribution). But P could not cope with the juris doctor programme which was too difficult for her and she eventually suspended her studies (which later lapsed) when she was hired by the Civil Service Bureau as executive officer II / ALOII, and I reiterate my discussion and findings in paragraphs 71-77 above. Further, as a result of being employed as ALOII, P also declined the offer by the Hong Kong judiciary for the post of judiciary executive II (judicial clerk) (non-civil service) (F/826-827). 872.Under cross-examination, P agreed she participated in voluntary work, and was the chairperson of a volunteers’ association called Hong Kong Outstanding Youth Volunteers’ Association (probably since 2016 but P was not sure), which she saw as “…… recognition of the voluntary services [P] have provided throughout the years ……” There were around 200 members and about 5-6 committee members (委員會). P was elected chairperson by popular vote at AGM although not all members attended such meeting. When P ran for the position of chairperson, she promoted “…… activities for the forthcoming year by email”, and she set up her own election platform on, say, Facebook. P explained that she was not fully engaged in actual voluntary work/ activities as chairperson, and instead she was more engaged in voluntary work seminars. The association also organised some but not many activities, eg overseas trips which she joined as a necessary requirement for completion of the association’s voluntary work scheme. 873.P explained under cross-examination that whilst she and her team members had to prepare for voluntary work activities, she did not have to spend a lot of time as such activities which usually took place at 7:00pm to 9:00pm maybe once every few months. She did not attend all of the preparatory meetings, but she would review the minutes of meeting. P said the association’s activities in 2021 targeted minorities, and there were activities joined by about 30 persons of minority race and their instructors. P disagreed under cross-examination that given her calibre and CV, she would have secured a job similar to ALOII within 6 months after the Accident. P said “…… [she has] tried to look for one but they did not employ [her] ……” 874.According to the Psy Jt Report, the Psy Experts elicited from P the psychiatric aspects of P’s job-hunting efforts and her post-resignation work as follows:
XXXVII. P’s COMPLAINTS 875.According to the Ortho 1st Jt Report, P complained to the Ortho Experts at the Ortho Exam (19 October 2017) that she had left knee pain,[153] stiffness in left knee and occasional click in the left knee with bending (about 4 times a month associated with pain), but no more dislocation. She told the Ortho Experts she had to kneel in modified manner and could not squat in the usual way, and felt there was wasting in the left thigh. 876.According to the Psy Jt Report, P reported to the Psy Experts at the Psy Exam (31 May 2018) that in the “recent one month” (ie April/May 2018) she had various complaints regarding her then physical condition.[154] At the Psy Exam, P told the Psy Experts about her then psychiatric symptoms,[155] her then routines[156] and her future plans.[157] 877.At the time of the P 1st WStmt (24 August 2018), P claimed she still had various health problems.[158] She occasionally had symptoms such as vomiting, difficulty in concentrating and memory loss. At first, she was not willing to consult a psychiatrist because she did not want the stigma of being marked as a psychiatric patient. But in/about August 2017, P began to consult Dr Mak, who diagnosed her to suffer from depression and who prescribed some medication for her. At the time of the P 1st WStmt, P still had mental issues[159] for which she received psychiatric treatment from Dr Mak, and she would continue to have psychiatric treatment. 878.Mr Sakhrani in his closing submissions summarised that as at the ARSoD (22 October 2018), P claimed she continued to suffer from pain and impairment which was said to be mild to moderate, and included (a) left knee pain and stiffness, (b) inability to stand or walk for prolonged periods, (c) inability to sit for prolonged periods, (d) inability to squat in usual way, (e) left leg pain, (f) scarring over the left lower limbs, (g) left thigh wasting, (h) loss of interest in sports, (i) low mood, (j) poor appetite, (k) poor concentration and slow work, (l) fleeting suicidal thoughts, and (m) cosmetic embarrassment. She was additionally diagnosed with major depressive disorder (with then condition being mild in severity), which was caused by inter alia (i) her physical symptoms, (ii) financial pressures as a result of being terminated, (iii) the traumatic experiences she was subjected to on 3 January 2014, and (iv) physical challenges post-Accident. But under Scenario 2, (ii) and (iii) above were not factually supported. XXXVIII. EXPERTS’ OPINION ON QUANTUM (a) Ortho Exam 879.At the Ortho Exam on 19 October 2017, P sat normally for 45 minutes, walked with normal gait, was able to stand and walk on tiptoes, was able to stand and walk on heels, was stable in unilateral standing, was able to perform half-squat in a modified manner with left foot being placed a step forward with left knee flexed at about 100° (see Figure 1 of the Ortho 1st Jt Report), and was able to kneel in a modified way (see Figure 2 of the Ortho 1st Jt Report). There were scars on the lower limbs (Figures 3-4 of the Ortho 1st Jt Report).[160] Physical examination revealed that range of motion for knee was 0° - 135° (right) and 0°- 120° (left), thigh girth at 5cm above upper pole was 40cm (right) and 39.2cm (left) and at 10cm above upper pole was 43cm (right) and 43cm (left), and calf girth was 36cm (right) and 35cm (left). But valgus and varus stress tests, anterior and posterior drawer’s tests and apprehension test were all negative on both sides. (b) Psy Exam 880.The Psy Experts noted during the Psy Exam that P was dressed in casual wear, her eye contact was satisfactory, she was cooperative during the assessment, she was able to walk unaided, she had belching on several occasions. Her mood was low and there was mild anxiety. She was tearful several times during the Psy Exam, and cried when (a) describing her feelings on being accepted into the College, her hardships during her school days walking up a hill to save money from travelling on mini-bus, and her mother cleaning her body after hospital operation, (b) describing being looked at as a disabled person when she needed to sit on a wheelchair when travelling on a bus after the operation, (c) describing her loss of abilities, loss of self-confidence, feelings of rejection by others despite her efforts, and (d) expressing her guilt feelings towards her parents causing them sadness, pain, failure and sense of disappointment. She also said she turned on the intensity of the electrical stimulation in the physiotherapy machine to cause pain on herself.[161] She reported being more unhappy and anxious at the Psy Exam than usual because she had to recall her unhappy memories and she was nervous about the examination. P’s speech was normal in flow, rate and tone, her thought process was normal with no delusions or overvalued ideas elicited, and there were no active suicidal ideas or plans. No abnormalities were detected concerning perception and derealisation, and concerning concentration and attention during the Psy Exam (and she was able to focus on the question asked and did not require questions to be repeated). But P showed difficulty in concentration during serial subtractions of 7 from 100 with slow answers and 2 incorrect answers. (c) Ortho Experts’ opinion 881.In the Ortho 1st Jt Report, the Ortho Experts agreed that the treatment received was appropriate, and further surgery was not required. Both Ortho Experts agreed that by the time of the Ortho Exam, P’s left knee injury had reached maximum medical improvement. Dr Wong opined that the 1st/2nd Surgeries were aimed to correct P’s pre-existing structural problem that caused recurrent left patella dislocation rather than the Accident, but Dr Lam opined the 1st/2nd Surgeries were aimed to repair tear of MPFL “injured in the subject [Accident]” and to stabilise the patella. 882.In the Ortho 1st Jt Report, Dr Lam took note of P’s complaints and the Ortho Experts’ findings at the Ortho Exam (see paragraph 879 above) as well as the physiotherapy reports that showed P’s physical condition as assessed in August 2016 had improved quite a lot after a long course of rehabilitation (see paragraph 847 above) and x-ray examination at the Ortho Exam that revealed both patellae were in satisfactory position, the femoral sulcus appeared normal,[162] the joint space was preserved in both knees, and bone density was only marginally decreased in the left knee compared with the right. As a result, Dr Lam opined that it was likely that P achieved considerable improvement with various treatments, but still had some genuine pain and impairment (scarring with repeated surgery, mild stiffness, pain with certain activities, reduced standing / walking tolerance / endurance compared with pre-injury state) in the left knee despite various treatments, but the degree of residue pain and impairment was estimated to be mild to moderate. Under cross-examination, Dr Lam opined that after the 1st/2nd Surgeries and rehabilitation thereafter, further dislocation without trauma (eg walking on the street) was unlikely. 883.For assessment of permanent impairment and disability in practical terms, Dr Lam opined that activities that would cause increased stress to left knee (eg full squat, kneeling on left knee / both knees, prolonged walking/standing, say, over 1-2 hours, fast running) could cause discomfort or even pain in the left knee, but P was independent in activities of daily living. Further left patella dislocation after stabilisation was not likely unless there was severe trauma. Given the nature of PI training (see footnote 92 above), Dr Lam opined that with more self exercises to strengthen the left knee and gradual increase in intensity for adaptation to increase in endurance, P might be able to cope with the requirements of PI training with mild reduction in capacity/proficiency. Under cross-examination, Dr Lam further explained that by the time of the Ortho Exam, P had the 1st/2nd Surgeries to stabilise her left patella and had exercises to strengthen her left knee such that the thigh girths on both sides were comparable (ie the left quadriceps muscle was back to normal without wasting) but the left knee was “still a bit stiff”, so if P could strengthen the muscles further, she might be able to cope with PI training and the work duties of an ordinary IP, but not that of special units that required high physical demand, eg PTU (police tactical unit). But Dr Lam accepted P would have some difficulty in bending her knee and squatting down, ie “…… she would have to have flex up to 120° so she might have to squat in a modified way just like the Westerners, you know, proposing with one knee bent and the other -- single leg, one leg kneel and one leg bent ……” 884.Dr Lam opined that as an alternative, jobs that would not require such heavy physical demand on the knees were also suitable, eg lawyer, administrative trainee / administrator and possibly officer in disciplinary service in departments that would not require as high physical demand. Using the “Guides to the Evaluation of Permanent Impairment, 5th/6th Edition, American Medical Association” (“AMA Guides”) and taking into account the evidence reviewed, the findings at the Ortho Exam, and the residual pain and impairment, Dr Lam estimated that P’s “…… left knee injury itself (resulting in patella dislocation (recurrent) with osteochondral fragment) should carry 4% whole person impairment”. 885.Dr Lam opined that since P had history of recurrent left patella dislocation in childhood and suffered the subject 3rd dislocation (with osteochondral fragment, ie kind of “fracture-dislocation”) being the result of the Accident, there was a considerable chance she would suffer further dislocation in her lifetime even without the Accident, so apportionment should be considered. Dr Lam said the medical literature showed the recurrence rate for primary patella dislocation treated conservatively (upon follow-up from 2-14 years) varied between 20%-71% (eg for cohort with follow-up at 7 years the redislocation rate was 39%). But taking into account (a) the 1st/2nd Episodes occurred when P was relatively young when the joints were “usually laxer / more flexible + muscles are less strong” but the chance of further dislocation (but for the Accident) should not be as high when P entered adulthood (and unlike progressive degeneration, if she did not suffer considerable trauma to the left patella P would probably never experience such severe dislocation), and (b) in respect of P’s pre-existing condition, there was no evidence P needed further specific treatment for her left knee after the 2nd Episode in 2006, but there was evidence that P had no dislocation for 7 years after the 2nd Episode and that P engaged in sports (as team player in handball/ basketball) that required high physical demand on the knees, which suggested P had good clinical and functional recovery from the 1st/2nd Episodes with no further dislocation despite sports/activities that required high physical demand on the knees, and (c) upon considering P’s pre-existing condition, the mechanism of injury, the clinical picture that followed, the progress of treatment and the arthroscopic (operative) and MRI findings (ie intense bone bruise, MPFL tear and osteochondral fragment), the injury from the Accident was very likely more severe than the 1st/2nd Episodes requiring surgical stabilisation with slow and gradual improvement thereafter and long course of rehabilitation, P’s case fell between category 1 (ie the injured person was almost certain to go through life unaffected by the condition) and category 2 (ie there was a strong possibility that some other event or natural progression of the condition would have brought about the injured person’s present status) of the Chan Kam Hoi categories (and Dr Lam could not conjecture when a precipitating event would occur such that P’s present knee condition would ensue but for the Accident), but even if she eventually developed symptoms, but for the subject Accident, it was likely that P’s condition would not be as bad as her present state. So for the sake of apportionment, Dr Lam estimated the injury from the Accident should account for about ⅔ of P’s present impairment and disability in the left knee, and the pre-existing condition (from previous dislocations) should account for about ⅓. Dr Lam disagreed with Dr Wong’s assessment set out in paragraphs 886-888 below as being too focused on the alleged bony and soft tissue defects (ie almost flattened left sulcus angle and wasting of quadriceps muscle) and giving too little weight to P’s good clinical and functional status. 886.On the other hand, Dr Wong opined that the left patella dislocation at the time of the Accident occurred as a result of the pre-existing P’s Knee Condition, so strictly speaking the Accident could not be graded as an accident but normal daily activity. He questioned P’s account of the Accident of missing a step which was not found in the early treatment MNR which only showed P had suspected left patella dislocation while walking downstairs which reduced by itself. Dr Wong opined that P was expected to have recurrent dislocation of left patella even without the Accident. Most of the treatment P received (except conservative treatment shortly after Accident aimed to reduce the inflammation) was for correction of her pre-existing condition. Dr Wong said P’s current condition could not be regarded as satisfactory as she had residue pain, stiffness and weakness over left knee after the 1st/2nd Surgeries, which surgeries successfully prevented recurrent left patella dislocation but led to pain and stiffness over left knee. Dr Wong opined that P’s daily activities were mostly unaffected, but she might have difficulty in resuming vigorous sports and physical training. Dr Wong regarded P’s prognosis to be fair. Using the AMA Guides, Dr Wong opined that P’s condition was within the category of Class 2 (moderate instability), so 16% lower extremity impairment translated to 6% whole person impairment, but “[apportionment] is necessary as explained alleged accident around 10-20% for Patella sub-laxation or dislocation due to triggered incident around 0.5-1%”. 887.Dr Wong opined that P’s case would fall within category 3 of the Chan Kam Hoi categories, ie the pre-existing P’s Knee Condition would have brought about P’s present state at some stage in her life in any event, and any event including normal/ordinary activity like using staircase, getting up from squat position, carrying groceries while ascending/descending staircase could have caused further left patella dislocation. In coming to such view, Dr Wong relied on (a) P’s recurrent left patella dislocation, (b) bony defects (eg almost flattening of left femoral sulcus angle), and (c) soft tissue defects (eg wasting of quadriceps muscle), (d) no evidence of speedy recovery after the 2nd Episode, (e) doubt over whether P was as sporty as alleged after the 2nd Episode, (f) doubt over satisfactory performance of the Physical Fitness Test and in physical training, and (g) mechanism of injury of dislocation and spontaneous relocation while walking down the Staircase. 888.Dr Wong opined that with P’s Knee Condition (such that P’s claim that she had regular sports activities such as running 3 times/week and playing basketball about 2 times/week just before the Accident was doubtful in light of muscle wasting and MRI features of subluxation of patella associated with almost flattening of the sulcus angle), P was not expected to complete the Course even if there were no Accident, and the recurrent left patella dislocation would have occurred during PI training, especially during jumping, squatting and running exercises as she had left patella dislocation even upon walking downstairs. But even in her current condition, Dr Wong opined that P was expected to be unable to fulfill PI training required to become an IP. But following the correction of her underlying problem and with intensive physical training, P might be able to finish the Course in future. (d) Apportionment under Chan Kam Hoi 889.On the assumption under Scenario 2 that D was liable to P for the Accident subject to contributory negligence (which I disagree), both Mr Sakhrani and Ms Chao accepted that with P’s pre-existing left knee condition, Chan Kam Hoi apportionment between subject Accident and the pre-existing P’s Knee Condition would be necessary. I rely on the general principles set out in Chan Kam Hoi v Dragages et Travaux Publics[163] and Yu Wai Kan v Law Cho Tai,[164] and do not repeat them here. But given my findings in relation to P’s Knee Condition that undermined the factors that Dr Lam relied on in paragraph 885 above, I prefer Dr Wong’s opinion and find that P’s case fell into category 3 of the Chan Kam Hoi categories. 890.In the circumstances, I disagree with Dr Lam’s suggestion that ⅓ of the injury, impairment and disabilities in respect of P’s left knee was attributable to P’s Knee Condition and ⅔ was attributable to the Accident. Ms Chao submitted that since P’s case fell within category 3 of the Chan Kam Hoi categories, there should be 60% reduction for various heads of damages[165] for P’s Knee Condition, drawing support especially from Liu Chun Kow Joe v Lee Sau Wing[166] and Chu Fung Ping v Wong Wai Leung.[167] Each case turned on its own facts, but given my findings as to the pre-existing P’s Knee Condition and bearing in mind that recurrent patella dislocation in P’s case was an occurrence that could have happened at any time even during normal ordinary activity in view of her bony and soft tissue defects (and more so when in P’s case she was engaged in intensive physical training (albeit modified for her) during PI Training) and not a matter of progressive degeneration, I prefer Dr Wong’s opinion that there was real probability that even without the Accident there would have been recurrent left patella dislocation at any time, and (had the Accident not happened and had P not resigned) quite probably in the course of physical training that would have intensified as PI training progressed. That being the case and taking in account all the present circumstances (on the assumption under Scenario 2 that D was liable for the Accident subject to contributory negligence, which premise I disagree), I agree with Ms Chao there should be a reduction of 60% on account of P’s Knee Condition. (e) Psy Experts’ opinion 891.The Psy Experts agreed on the diagnosis of major depressive disorder, and that P’s current condition was mild in severity, but they disagreed on the treatment required and degree of permanent impairment for her psychiatric condition. 892.Dr Lai noted Dr Mak’s diagnosis of major depressive episode that was probably based on ICD-10 might not fulfil the diagnostic criteria of a major depressive disorder under DSM-5. Nevertheless, based on information from the medical documents, examination findings at the Psy Exam and the factors he took into account (see paragraph 893 below) below, Dr Lai opined that (a) P was likely to be suffering from symptoms of a major depressive disorder but at the time of Psy Exam her symptoms were in the mild range, and (b) based on the nature and timing of P’s psychiatric symptoms as reported by P and in the medical documents, they were compatible with being “caused by the Accident and its aftermath” (my emphasis). 893.In assessing P’s then current psychiatric symptoms, Dr Lai considered the following factors set out in paragraph 17.13 of the Psy Jt Report:
894.Dr Lai opined that further psychiatric treatment was required to help P reduce further the degree of her psychiatric symptoms, to resolve emotion associated with the loss of her childhood dream to be a police officer, to negative experiences with Kwan/Chau after the Accident, to rebuild her self-confidence as a person and as a female, to adjust to her new job, and to return an optimal level of psychosocial functioning in spite of persistent physical disabilities and associated limitation. Both medication and psychotherapy were required, and it was likely she would require psychiatric treatment in the coming 2 years. Dr Lai recommended a course of psychotherapy of about 15 sessions by a clinical psychologist. 895.As for prognosis of P’s psychiatric condition, while there were pro factors[168] and con factors,[169] Dr Lai believed P would likely have further improvement of her psychiatric symptoms after the recommended further psychiatric treatment and after conclusion of the present litigation, but she would still have mild residual psychiatric symptoms including (a) fear of further injury to the knee, (b) sensitivity to a hostile authoritative figure, and (c) persisting feeling of herself being much worse off than her squad mates at the College who had become SIPs and on track to develop their career with HKPF. Nevertheless, Dr Lai opined P’s psychiatric disability was likely in the mild range as P had no problem in self-care, could travel around by herself and no limitation of daily activities, and her levels of impairment were compatible with most useful functioning. Referring to the AMA Guides and noting P lacked self-confidence, avoided courtship, had not returned to pre-Accident social activities, had mild impairment in focusing in prolonged working environment, likely to have less confidence and mildly impaired ability in adaptation in work environment as compared to her pre-Accident ability, which in short meant mild residual psychiatric symptoms, Dr Lai opined P had roughly 10-12% permanent impairment of the whole person based on her psychiatric condition as a result of the Accident. But “…… [in] view of the nature of her pre-accident job as a trainee police and manner of her being forced to quit the police school, it may not be practical for her to consider returning to work as a police officer. From the psychiatric perspective it is likely difficult for her to overcome the negative experiences in the police school and return to the training in the police school even if she is physically fit to do so ……” 896.Dr Lai considered that from a psychiatric perspective P was mentally capable of returning to work in a job appropriate to her physical condition, and with her mild residual psychiatric symptoms her work efficiency and tolerance were likely adversely affected to a mild degree. Thus, her loss of earning capacity based on her psychiatric condition was likely within the mild range. 897.On the other hand, Dr Hung agreed with the psychiatric diagnosis of moderate depressive episode by Dr Mak using ICD-10 diagnostic terminology, which corresponded to major depressive disorder, single episode, moderate in DSM-5, and based on the psychiatric symptoms reported by P and the symptoms set out in MNR, she satisfied the diagnostic criteria for major depressive disorder soon after the Accident. With treatment, P’s symptoms improved, and her mood was less low than immediately after the Accident. She still had little interest in activities but did attend church and went on various overseas trips. Her sleep improved and she no longer required sleeping pills. Her concentration improved with medications although it remained poor compared to before the Accident. She still had feelings of worthlessness and guilt. Dr Hung assessed P’s psychiatric illness to have been caused the Accident and the post-Accident events. Although it was not possible to make an exact apportionment, Dr Hung attributed 90% of her psychiatric illness to the former (ie physical pain and stiffness resulting from the Accident) and 10% to the latter (ie unfairness from the pressure on her to resign). 898.Dr Hung opined that at the time of the Psy Jt Report P had not yet reached maximal medical improvement. As depression was a very treatable illness and P only commenced treatment with antidepressant medication less than 9 months before the Psy Exam, Dr Hung anticipated P’s psychiatric illness to improve significantly with adjustment of her antidepressant medications and treatment by a clinical psychologist, and there was very good possibility she would reach full remission, which was the aim of psychiatric treatment. Dr Hung recommended that P should continue psychiatric treatment at intervals every 6 weeks for the coming 1-2 years from the date of the Psy Jt Report, and then her treatment could then be stopped. She should also receive psychological treatment for 10-15 sessions by a clinical psychologist to improve her negative thoughts, address her feelings of disappointment and guilt, and to improve her pessimism. Further, improvement in P’s financial situation would also reduce P’s stress levels and aid in psychiatric recovery, so Dr Hung opined that upon resolution of the present litigation and an improvement in P’s financial condition, her psychiatric condition would improve. 899.Dr Hung noted that the job of a police officer involved the need for physical fitness and also non-physical abilities. Disregarding her current physical impairment, P still has mild symptoms of major depressive disorder (eg low mood, low energy and poor concentration) which would affect her ability to work. But P was capable of doing her current job but with some psychiatric impairment. But P had not yet reached maximal medical improvement. For her current impairment, using the AMA Guides, P’s condition fell into the lower end of Class 2 (“impairment levels are compatible with most useful functioning”) in view of her mild symptoms and her ability to function independently and to work in a full-time government job (although she worked slower than other colleagues and she left work later). But with the recommended treatment, Dr Hung expected her to make a good recovery and she should reach full remission, ie full resolution of her major depressive disorder in the next 1-2 years, so that she would not have permanent psychiatric impairment and loss of earning capacity, ie she should be able to return to the same level of psychiatric functioning as prior to the Accident. 900.As seen from above, both Psy Experts assessed P’s psychiatric condition on the premise that such condition was caused by the Accident as well as the post-Accident events. However, under Scenario 2 (and also under my findings), the post-Accident events were irrelevant. Even in relation to the Accident, the opinion of the Psy Experts must now be viewed through the prism of my findings as to P’s Knee Condition as well as P’s awareness of her symptomatic underlying condition, the limitations it imposed and the impact it had on her functionality and her PI training. Thus, P’s psychiatric symptoms could not be laid entirely at the door of the Accident (even if under Scenario 2 D were liable to P for the Accident subject to contributory negligence, which premise I disagree). XXXIX. PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”) 901.For damages for PSLA, P claimed a sum of $450,000 under the ARSoD (subject to ⅓ discount to $300,000 for pre-existing knee condition), and Ms Chao in her closing submitted that a sum not more than $150,000 (but reduced to $60,000 for 60% “crumbling skull” discount in respect of P’s Knee Condition) should be awarded. Based on P’s condition pursuant to my findings but in the context of Scenario 2, and taking into account P’s reasonable rehabilitation, her mild residual condition, her symptoms and disabilities, her treatment history, the Experts’ opinion (but read in context of my findings and on the basis of Scenario 2), the appropriate overall award for PSLA prior to discount is $350,000. In coming to this conclusion, although each case turned on its own facts, I have considered the authorities cited by Mr Sakhrani[170] and Ms Chao[171]. 902.However, such award had to be discounted by 60% for P’s pre-existing P’s Knee Condition which fell within category 3 of the Chan Kam Hoi categories, hence the award for PSLA is $350,000 x 40% = $140,000. XL. PRE-TRIAL LOSS OF EARNINGS 903.I start with some common ground between the parties: (a) P’s employment with HKPF pursuant to the Letter of Appointment dated 25 September 2013 (F/736-738) was “on probationary terms for a fixed period of three years”, (b) P’s notional pay raise and advancement were not dependent upon whether she passed out or not, and (c) any pre-trial loss of earnings would not be discounted for the pre-existing P’s Knee Condition due to reasonable accommodation that would have been provided by HKPF. 904.In the ARSoD, P claimed for pre-trial loss of earnings but for the Accident and its aftermath in the sum of $4,574,504.71 for the period from 20 December 2014 to the notional date of trial on 19 December 2020 on the basis of her notional earnings and MPF (mandatory provident fund) or CSPF (civil service provident fund) benefits as a police officer based on the police pay scale points with periodic increments less her actual earnings as she had taken reasonable steps to find work. 905.But in P’s Subs and P’s Table, P’s stance on the claim for pre-trial loss of earnings under Scenario 2 (ie D was liable to P for the Accident subject to P’s contributory negligence but P voluntarily resigned) was more nuanced. Mr Sakhrani submitted that there were 2 possible sub-scenarios, ie (a) in deciding to voluntarily resign from HKPF P must have had better prospects elsewhere and had plans to earn an amount not less than her income as a PI (with similar prospects of increment) (“Scenario 2A”), and (b) P voluntarily resigned but had no plan in place and in essence decided to throw away a rewarding career (“Scenario 2B”). Mr Sakhrani submitted that more likely than not Scenario 2A was the true situation otherwise there was no logical basis for P’s resignation and for P to put herself into the predicament that she did. I reject Scenario 2A. P never pleaded any alternative case along the lines of Scenario 2A nor did she give evidence to such effect. Indeed, Mr Sakhrani acknowledged evidence of the alleged plans and the income of the “better prospects” were absent. In my view, there was simply no pleading or evidential basis for Scenario 2A. Moreover, my findings in relation to P’s resignation was against any suggested inference for Scenario 2A. Indeed, in his oral closing submissions, Mr Sakhrani conceded that under Scenario 2, I should look at Scenario 2B. 906.Turning to Scenario 2B, Mr Sakhrani’s description also did not fully reflect my findings as to why P resigned voluntarily. Ms Chao was right in saying the Scenario 2 was simply P resigned voluntarily. On such basis, Mr Sakhrani submitted D must at least be liable for loss of earnings for the duration of the sick leave period from 20 December 2013 to 6 October 2016, and since P’s efforts to mitigate loss and to look for work were very reasonable, P should be entitled to pre-trial loss of earnings up to the time she obtained a full-time job at the Companies Registry on 9 June 2017, especially when P was the still suffering from the psychiatric effects from the Accident and Dr Hung said P could only reach full remission after receiving recommended psychiatric treatment in the next 1-2 years. 907.The parties agreed on the mathematical calculations of earnings in 2 schedules of earnings, ie Table X (with police officer “Wong” and “Hui”[172] as comparables) and Table Y (with police officer “Hui” as comparable). Table X was D’s preferred table, and Table Y was P’s preferred table. P contended that “Hui” was a more relevant comparable as he delayed in passing out and “Wong” was not a fair comparable because he/she had no/very low income from March to May 2019 (but D did not give explanation for such reduction), which dragged down the average notional earnings. D contended using the average of 2 comparable police officers would be a fairer reflection of the notional income of an average IP as (a) “Hui” delayed in passing out by 1 squad[173] and not by a few years, (b) the reduction in “Wong’s” earnings for 3 months was reflective of vicissitudes of life and reality where life events would happen to each and every working individual, (c) in fact “Wong” (who passed out as scheduled)[174] did not advance along the police pay scale as fast as “Hui” (who passed out later) and (d) the fact the police pay scale increases for “Hui” and “Wong” were made at different times showed various factors would have affected when and how increments would be received, so there was no reason to ignore “Wong” in assessing when P’s notional income would have advanced. But for Scenario 2B Mr Sakhrani proposed to adopt the higher figure of $2,138,256.08 in Table X rather than $2,095,930.52 in Table Y for P’s total accumulated loss of earnings as at May 2017. In the circumstances, there was no need for me to deal with the debate over the choice of Table X or Table Y, and proceed simply on the basis of Table X. 908.In the Answer, D denied P’s claim for pre-trial loss of earnings, pointing out that Dr Wong opined that no more than 3-4 months would be endorsed for treatment of acute dislocation probably triggered by the Accident but most of the treatments (including the 1st/2nd Surgeries) were aimed to correct P’s Knee Condition, and Dr Hung opined that on P’s version of the Accident, sick leave for 6 months from 20 December 2013 would be appropriate. 909.Like P, D adopted a more nuanced approach in response under Scenario 2 in D’s Subs and D’s Table. Ms Chao submitted that D’s stance was that P should not be entitled to any pre-trial loss of earnings beyond July 2014 because (a) P failed to establish on the balance of probabilities that by the time of completion of the 36-weeks’ Course for P’s current squad PI566 on 12 July 2014 she would have passed out or indeed she would have passed out at all in any intake, or (b) appropriate sick leave for the Accident should have expired in June/July 2014. For (b) above, Ms Chao adopted a similar approach as Mr Sakhrani save and except D argued that (i) reasonable and appropriate sick leave for the Accident alone (and not for P’s Knee Condition) would have been until June/July and not up to 6 October 2016, and (ii) P failed to mitigate loss in looking for work. For (a) above, I am at a loss to understand its relevance to Scenario 2 when the court should consider loss and damages flowing from the Accident for which D was assumed to be liable subject to contributory negligence and not loss and damages flowing from the post-Accident events given the assumed premise (and my finding) that P voluntarily resigned. Unlike Scenario 1, whether or not P resigned and/or whether or not she passed out would not have affected the measure of damages for loss flowing from the Accident under Scenario 2, which would turn on P’s reasonable sick leave and ability to return to work. In assessing pre-trial loss of earnings, I reject any reliance on (a) above. 910.On the matter of sick leave, P relied on actual sick leave for the period from 20 December 2013 to 6 October 2013. In the Ortho 1st Jt Report, upon “considering the severity of injury, need for repeated surgeries, the progress with treatment, and the pre-Accident job demand”, Dr Lam opined that the duration of sick leave issued by P’s treating specialists/doctors who assessed her from time to time was appropriate and should be endorsed. In respect of the factors that Dr Lam relied on in coming to his view that actual sick leave should be endorsed, I have analysed his views in detail above in my discussions on P’s Knee Condition and the causation of the Accident (see summary of Dr Lam’s opinion in paragraph 885 above). Essentially, I prefer Dr Wong’s opinion over Dr Lam’s and found that (a) there was considerable chance that P would have suffered left patella dislocation during her lifetime even without the Accident and even in the course of ordinary activities without trauma (see paragraph 890 above), (b) P did not have as robust functionality of her left knee after the 2nd Episode as she claimed, eg she would not have engaged in sports such as handball or basketball at high level as she claimed, (c) P’s Knee Condition was symptomatic with on-and-off pain, muscle wasting/laxity and patella instability, (d) the 1st/2nd Surgeries and subsequent rehabilitation were substantially for correcting P’s Knee Condition (ie the 1st Surgery was essentially the same in nature as the surgery offered to P after the 2nd Episode), and (e) the pre-existing P’s Knee Condition fell within category 3 of the Chan Kam Hoi categories (see Part II(e) and Part XXXVIII(d) above). It was therefore essential to distil the appropriate notional sick leave for the Accident alone from the actual sick leave P received which Dr Lam endorsed for all aspects of her overall medical condition that he identified. 911.Dr Lai opined that P’s psychiatric symptoms were due to both the Accident and the post-Accident events (see paragraph 893 above) and he considered P’s prognosis and need for psychiatric treatment on such premises (see paragraphs 894-896 above). On such basis Dr Lai opined that for P’s psychiatric symptoms, she might have required sick leave for about 1 year when she was worse in her psychiatric condition. Given that Scenario 2 was premised on P having voluntarily resigned so that no loss would have flowed from the post-Accident events, it was again necessary to distil from Dr Lai’s recommended sick leave the appropriate sick leave for the Accident alone. 912.On the other hand, Dr Wong opined that no more than 3-4 months would be required for treatment and rehabilitation of the acute dislocation for the Accident (ie conservative treatment shortly after the Accident that aimed to reduce inflammation), but most of the treatments (including the 1st/2nd Surgeries) were aimed to correct P’s underlying P’s Knee Condition, and even without the Accident P might still require the corrective surgery to prevent occurrence of recurrent dislocation in future (see paragraphs 886-888 above). Dr Hung opined that sick leave for a period of 6 months from the date of the Accident was appropriate for P. I note that Dr Hung also premised his opinion on both the Accident and the post-Accident events (see paragraphs 897-899 above). 913.In my view, under Scenario 2, the relevant sick leave would have been sick leave attributable to the acute dislocation of left patella at the time of the Accident but not to the pre-existing P’s Knee Condition and/or the post-Accident events. I have also found that the MPFL tear was a chronic one and the osteochondral fragment on the medial side of the left patella was not associated with the Accident (see paragraphs 270-288 above). That being the case, I agree with Dr Wong that the 1st Surgery (which was in similar nature to the soft tissue realignment operation offered to P by UCH’s DOT after the 2nd Episode) was for correcting P’s Knee Condition to shore up soft tissue support and to decrease the chance of future dislocation, and the 2nd Surgery was for scar release consequent upon the 1st Surgery. I have also found there was pre-Accident muscle wasting. Hence, but for P’s Knee Condition, the necessary physiotherapy for strengthening of muscles required upon the acute dislocation at the time of the Accident would not have been as lengthy/difficult as the physiotherapy actually received by P consequent upon pre-Accident muscle wasting/laxity, the 1st/2nd Surgeries, and immobilisation from knee brace after the surgeries. I find on balance that reasonable and appropriate sick vis-à-vis the Accident would have been up to end of July 2014 as Ms Chao suggested. Although it might credibly be suggested that Dr Hung’s opinion of 6 months’ sick leave for P’s psychiatric problems had to be adjusted to remove any portion attributable to post-Accident events, I need not consider the same as Ms Chao accepted that reasonable sick leave would be up to July 2014, which was more than 6 months after the Accident. 914.But that is not the end of the matter. I have found P voluntarily resigned from HKPF (and there was no suggestion that such voluntary resignation was a failure to mitigate loss or was unreasonable conduct). I find that P should be allowed reasonable time after July 2014 (ie after expiry of reasonable and appropriate sick leave) to look for work. Putting aside the pre-existing P’s Knee Condition and psychiatric issues due to the post-Accident events, P would not have been as physically and mentally traumatised by the Accident as her actual condition, and her required treatment, consequent disabilities and sick leave would have been less than her actual treatment, disabilities and sick leave. In those circumstances, P should be in better shape to look for full-time work in less time than actually needed after expiry of actual sick leave on 6 October 2016. In my view, P should be allowed a further 4 months after expiry of notional reasonable sick leave (ie up to end of November 2014) to find full-time work. 915.Much time was spent by P and D in arguing whether P failed to mitigate loss. I have set out the general principles on mitigation of loss in Chan Wai Chung v China Travel Service (Hong Kong) Limited & ors,[175] which I rely on but do not repeat here. 916.Ms Chao submitted that although P’s actual sick leave expired on 6 October 2016, her sick leave after July 2014 was not justified,[176] but even if P was entitled to sick leave until the 2nd surgery in November 2014, (a) she did not actively/seriously try to find a full-time job but was rather busy with her own interests,[177] (b) she did not submit her next job application until 9 October 2015 which was almost 1 year later, (c) upon review of P’s job applications made in 2016-2017 as referred to in the P 1st WStmt and in the disclosed supporting documents (i) it appeared P applied for part-time or temporary work rather than full-time employment,[178] (ii) in P’s application to be a part-time station assistant for MTR she listed very limited available time slots,[179] and (iii) in P’s application to be temporary administrative assistant for HKEAA she only gave limited available working days/months.[180] Ms Chao also submitted P tended to switch jobs/roles instead of staying with 1 job/role, which showed she was not determined in looking for work as she claimed.[181] On such bases, Ms Chao submitted that P failed to mitigate loss. 917.On the other hand, Mr Sakhrani submitted that despite the setback P suffered physically and mentally “as a result of the Accident and its aftermath”, P started looking for employment as early as October 2014 (ie before the 2nd Surgery – see Part XXXVI above). Contrary to D’s complaints that she was not taking active steps to secure alternative career prospects, P was in fact actively making job applications in 2015-2017 (even though she had a difficult time in finding work after she was forced out of the College) and applying for further study. It was said that it was not unreasonable for P to take time to re-educate to pursue another career by applying for and reading the juris doctor programme.[182] Mr Sakhrani submitted P could not secure employment early on because she was physically impaired as a result of the Accident (as she was physically active before the Accident) and mentally impaired as a result of the Accident and post-Accident events, but the fact she had looked for / secured some work before expiry of her sick leave indicated that she was not dragging her heels as D suggested.[183] Mr Sakhrani reminded that although P secured lower paid roles along the way (eg in November 2016 and April-November 2017), she was trying to secure a new career rather than simply a new job, and it was reasonable that she tried her best to secure a career that ultimately satisfied her (as she eventually did by securing full-time employment as ALOII of LD). 918.However, in light of my finding that reasonable and appropriate notional sick leave for the Accident (and not for the post-Accident events and/or P’s Knee Condition) would have been up to 31 July 2014, there was no need for me to consider whether P sufficiently mitigated her loss after the 2nd Surgery in November 2014 (in the scenario contemplated by Ms Chao in paragraph 916 above). The short point was whether P actually did or did not mitigate her loss in the period after November 2014 had no bearing on the appropriate period of pre-trial loss of earnings based on notional appropriate sick leave and notional reasonable period to secure work after expiry of such notional sick leave as I have found, ie up to November 2014. In the circumstances, according to Table X, P’s pre-trial loss of earnings from 20 December 2013 to 30 November 2014 was $443,274.00. XLI. LOSS OF CONGENIAL EMPLOYMENT 919.In the ARSoD, P claimed a sum of $200,000 for loss of congenial employment on the basis that (a) HKPF caused her to lose her job with them, which job was her dream job since childhood, interested her after completing secondary education, and gave her immense satisfaction, pride and status, and (b) “[she] was forced to quit her dream job”. D did not admit such claim in the Answer. Ms Chao in her closing submissions maintained there should be no award for this head of claim, but alternatively as a fall back and subject to further evidence, $28,000 (being $70,000 with 60% reduction for P’s Knee Condition) was conceded as a reasonable amount. 920.The claim for loss of congenial employment under Scenario 2 gave rise to 3 issues: (a) whether P as a PI would (i) complete the Course, pass out of the College and become a PI and (ii) establish a congenial employment in the first place, (b) if so, whether there was any loss of congenial employment caused by the Accident, and (c) if so, what would be the amount of the award of damages for this head of claim. (a) Passing out? 921.On the question in paragraph 920(a)(i) above, Mr Sakhrani submitted there were 2 relevant matters: (a) what would have happened if there was no Accident, and (b) whether in view of P’s pre-existing problems she would have passed out at the end of the 36-weeks’ Course or at all. Mr Sakhrani submitted that on (a)-(b) above, had the Accident not happened, then more likely than not P would have (i) continued her PI training, (ii) passed out around July 2014 upon completion of the Course, and (iii) continued to be employed by HKPF. 922.On the other hand, Ms Chao submitted that at the time of the Accident P was not a “permanent” employee of HKPF as she was still under probation. P agreed when she received the Letter of Appointment she knew she had to successfully “pass out” from initial training by completing the 36-weeks’ Course, by passing the final physical and academic examinations (eg the Inspectorate Professional Examinations – Standard I and Standard II) and by having “satisfactory service and conduct throughout the probationary period” before she could continue her career with HKPF as an IP. Since P was only in her 10th week of PI training when the Accident happened, it was said that (a) passing out from the College and/or (b) becoming an IP were too remote and uncertain.[184] Ms Chao submitted it would have been too early to tell whether by the time of the Accident or by the time P resigned she would have met the passing out standards. 923.First, Mr Sakhrani submitted that both Ortho Experts agreed P would have been able to continue PI training and to work as an IP despite her knee injury from the Accident. Dr Lam said by the time of the Ortho Exam P’s left and right thigh girths were comparable (ie the left quadriceps muscle was back to normal without wasting) but the left knee was “still a bit stiff”. He opined that with more self exercises to strengthen the left knee and gradual increase in intensity for adaptation to increase in endurance, P might be able to cope with (a) the requirements of PI training with mild reduction in capacity/proficiency and (b) the work duties of an ordinary IP but not those of special police units that required high physical demand eg PTU (police tactical unit) (see paragraph 883 above). Dr Wong opined in the Ortho 1st Jt Report that P in her condition at the time of the Ortho Exam was expected to be unable to fulfil PI training required for becoming an IP, but following correction of P’s underlying P’s Knee Condition and with intensive physical training P might be able to finish the Course in future (see paragraph 888 above). Mr Sakhrani submitted that such opinion by the Ortho Experts showed a fortiori that if the Accident had not happened, P would definitely have been able to pass out. 924.Mr Sakhrani further submitted that although P was not at the top of her squad for physical or academic disciplines, all indications suggested she managed to pass both academic and training tests at the time of the Accident at the 10th week of PI training, so it was foreseeable, consistent with Kwan’s evidence that P’s chances of passing out were not “bleak, low or may not even happen”, if this continued, P would pass out and become an IP. Mr Sakhrani said Kwan (a) explained that the teaching and assistance provided by the instructors would affect the final outcome and also there were remedial classes for every kind of course item, (b) testified that P was already given modified training because of her pre-existing knee condition and was told she could stop if she found she could not cope or not feel well, and (c) gave evidence that P would be an observer if some of the exercises were strenuous (eg P was exempted from a hiking training in week 4 of the Course), so there was no reason why it could not have continued like this until she passed out. Mr Sakhrani suggested that rather it was the Accident and the post-Accident events that disrupted P’s progression towards completion of her probation in that she was physically (and mentally) compromised and hence temporarily unable to take on physical activities that were a necessary part of the Course. 925.I find on balance that even without the Accident, it was unlikely that P would have passed out with her then squad PI566 in July 2014. P’s academic examination results dated 18 November 2013 showed her total score was 53 which was at best a marginal pass (but the class average was 70.9), and she ranked 13 out of 14 PIs in her own squad PI566 (see Part XII(a) above). Even though P was studying hard, she was plainly a lower performing student academically, and any scope/room for material improvement was doubtful especially when P was already hardworking and diligent and when the Course would intensify in the months to come. According to the PT Record, P was ranked 12 or 13 out of 14 PIs in her own squad PI566 in the 3 physical training tests up to the initial and introduction stages (see Part XII(b) above). But importantly, P did not take the 2.4km run and PPAT tests for the initial stage and the MFT test for the introduction stage. Thus, the test results only reflected her “modified” physical training tests and not her overall physical training test performance. But as Kwan explained, P had to take the omitted tests at a later stage (which outcome was unknown), and the strict passing out standards would not be altered or changed for any PI, which in my view explained why P was pessimistic about passing the physical training final examinations. I also note that comparable “Hui” was unable to pass out with his own squad and had to fall back squad due to unsatisfactory MFT test results at the intermediate and final stages (see footnote 173 above), which suggested that unsatisfactory outcome for a specific test could lead to real risk of failure to pass out (so passing out might not just turn on whether or not an overall “pass” result was achieved as P suggested). Bearing in mind that the academic and physical training for the Course would intensify in the months to come, I find it doubtful that but for the Accident P would have passed out in her current squad. I agree with Kwan that at the time of the Accident it was unclear whether P would have been able to pass out (see Part XII(c) above). 926.Mr Sakhrani submitted that the evidence clearly showed P was determined after the Accident to work hard on both her academic studies (having declared to Kwan and Chau that she would try to improve, taking her materials home to study for examination in January 2014, and not wanting her injury to affect her learning progress) and physical training (seeking both public and private medical treatment and after discussions with her treating doctor returned to the College with advice for light duty before her sick leave expired, but I have found (a) P did not submit the 3rd MC to Kwan/College and (b) it was P who wanted short sick leave when UCH’s DOT intended to give her sick leave for 3-4 weeks). I disagree that Mr Sakhrani’s submissions took P’s case any further, and I reiterate my findings above. In my view, P had been diligent and hard-working all along, studying long into the night at the expense of adequate rest/sleep, and taking on additional/extra training (ie remedial training) and going to the gym on other days, but still she did not improve despite her diligence and her performance remained marginal. I find on balance that despite giving her all P was not coping with PI training (see Part X(d) above), and I am not persuaded continued diligence would necessarily lead to useful or effective turnaround improvement (as P herself recognised in her WhatsApp message of 1 January 2014 – see paragraph 670 above), especially as the Course would intensify in the months ahead. Mr Sakhrani’s aforesaid submissions focused on P’s outward attempts to “pinch her nose” so as to convince herself and others that she would still strive for the goal of passing out, but they ignored the reality (as I have found) of P’s own inner concern that she was in fact not coping with PI training and was pessimistic about meeting the passing out requirements (particularly the physical training final examination). P’s articulated wishful thinking would not have overcome the practical limitations in her academic and physical abilities. Bearing in mind that 5 PIs out of 45 PIs of PI566-568 failed to pass out (and the failure rates of other squads of the 2013 intake was even higher), I doubt whether P with her lacklustre academic and physical training performance would have passed out with her then squad PI566. 927.As regards Mr Sakhrani’s reliance on Kwan’s evidence that he did not think P’s prospects of passing out were bleak or nil, Kwan in saying so was dealing with the situation of passing out upon falling back squad and not passing out with the current squad. He gave evidence that upon falling back squad “…… the teaching and assistance provided by the instructor could affect the final outcome and the [College] has provided a lot of remedial classes, almost every item has such class. Well, to put a [PI] in a new class is to give him or her more time to develop. Time and her effort can affect the final outcome ……” Further, it must be remembered in giving such evidence Kwan did not know P’s left knee injury at the time of the Accident required corrective surgery and extended rehabilitation, and P concealed those matters from him (see paragraph 49 and 691 above). It was unclear whether Kwan would have maintained such view if he had known about her disability, treatment plan and prognosis. Kwan also mentioned the eventual final outcome would depend on time for training/development and, more importantly, on determination and perseverance on the part of the injured PI. But as I have found and as Scenario 2 assumed, P was pessimistic about passing out, and chose to and did voluntarily resign. Further, P did not take kindly to helpful remedial training, and regarded additional/extra physical training as picking on her rather than (as I have found) helpful remedial training to enhance her physical fitness (see Part X(c) above). It was therefore unclear whether P would have been able to harnass the benefit of remedial courses to improve herself. 928.Also, I cannot forget about the pre-existing P’s Knee Condition. Mr Sakhrani submitted that although Dr Lam opined there was a ⅓ chance that at some unknown time in future there might be a triggering knee problem, if this were to occur it would more likely be after completion of P’s 36-week Course. “Arguably, the training then would be much less intense than during the Course when P would no longer need to undergo constant physical and academic tests. Logically, there would be times when her knee would be at rest. She would be able to cope with sports as she did in the past. On 20.12.2013, the likelihood is that it was only under fatiguing and stressful situations that her knee became vulnerable. On balance, even if the knee problem were to arise in the future, she would remain employed as an Inspector, with lesser duties, but with no loss of earnings in the future”. I disagree with Mr Sakhrani’s suggestion that but for the Accident any further dislocation of P’s left knee would only have happened after completion of the Course. I note Dr Wong opined that even without the Accident, in view of P’s Knee Condition, P was expected to have been unable to fulfil the training requirements for passing out and becoming an IP (see paragraphs 886-888 above). Further, I have found the pre-existing P’s Knee Condition fell within category 3 of the Chan Kam Hoi categories, so even without the Accident and had P not resigned, it was quite probable that P would have suffered recurrent left patella dislocation in the course of PI training as it would intensify during the remainder of the Course (see paragraph 890 above), and such eventuality would have entailed reconstruction/corrective surgery to be followed by extensive rehabilitation. In all the circumstances, I find it unlikely that P would be able be able to pass out in time with her then squad PI566 in July 2014. 929.Further, in respect of Mr Sakhrani’s submissions in paragraph 924 above, I note that under the assumed Scenario 2, the post-Accident events were irrelevant because P was assumed to have resigned voluntarily and was not ousted from the College. In all, I am not satisfied that but for the Accident, P would likely have passed out with her squad in July 2014, which was in fact one of the concerns that went into P’s decision to resign. 930.Secondly, Mr Sakhrani suggested that even if P could not pass out in time with her squad in June 2014 due to the Accident, D would still have been obliged to provide reasonable accommodation after P’s work-related injury and if so given, P would have continued to be employed as a PI during the whole of her sick leave period as shown in Form 7 (ie up to 6 October 2016), and she would have re-commenced PI training thereafter. Following the practice of HKPF retaining injured officers, there was nothing to suggest that once P was (as a fact) physically able to do so by October 2016, she would not have continued to pursue her dream and be re-trained in another squad. Since the 36-weeks’ Course started on 7 October 2013, Mr Sakhrani assumed P would have been able to re-join a new Course that would have started on/about 7 October 2016 once her sick leave ended. By such time P’s pre-existing knee condition would have been corrected and she would have had ample opportunity to strengthen her left knee, so future left knee dislocation would have been unlikely (see Dr Wong’s evidence that the 1st/2nd Surgeries were quite successful because there were no more patella dislocation and there was marked improvement in muscle gain). In any event, any future left knee dislocation would have no impact because reasonable accommodation would have been provided under HQO12/11. So it was suggested that had D been provided reasonable accommodation, including Postponement and/or Re-training, P would have passed out once she was physically able to do so (ie after her sick leave). In short, it was said that more likely than not P would have passed out after 36 weeks from the expiry of her sick leave, ie on/about 16 June 2017, and gone on to work as an IP until retirement. 931.I disagree. The scenario posited by Mr Sakhrani in the above paragraph rested on the following premises, ie (a) the Accident happened and as a result P could not pass out with her own squad, and (b) P would have received “reasonable accommodation” of Postponement or Re-training that HKPF was required to provide under HQO12/11, so she would have fallen back squad and passed out after re-training with another squad upon expiry of her sick leave. But I have found that P (who had not been classified as a HIO) was given reasonable accommodation on temporary basis under the Standard Procedures and HQO12/11 (with examples set out in Annex C thereof) by allowing/urging P to rest and recuperate at home whilst on sick leave, removing her physical demanding duties and arranging light duties for the period as recommended in the 1st, 2nd and 4th MCs, and providing supervision and guidance. I have also found that prior to and after the Accident, Kwan had told/reminded P of the possibilities of Postponement and Re-training, so P (as an police officer requiring reasonable accommodation due to health reason) could have requested (as she knew she could as having been so informed by Kwan) by providing sufficient information and advice regarding her injury, needed surgery/rehabilitation and prognosis to enable HKPF to consider and fashion suitable accommodation for her (including possible Postponement or Re-training), but P concealed from Kwan/Chau the 3rd MC, the medical advice for needed surgery (with extensive rehabilitation), the MRI left knee and its results and the upcoming follow-up appointment at UCH’s DOT on 21 January 2014 for operation decision, and instead chose to voluntarily resign (as I have found and as assumed under Scenario 2) upon such concealment and in face of hardship/pressure from PI training (both physical training and academic studies) which was expected to become more intense as PI training was to progress in the months ahead. Indeed, a total of 16 PIs (including P) resigned during PI training for the 2013 squad intake (including PI566). 932.Thirdly, Mr Sakhrani submitted that in light of ample evidence of regular and delayed progression within the HKPF (see comparables “Hui” and “Wong”), the oral/statement evidence of D’s witnesses as to the spirit and application of HQO12/11 and P’s own medical evidence as to her sick leave, D’s claim that P’s projections as to when she would have passed out were too remote did not impress. Mr Sakhrani submitted even though Hui failed the MFT test at the “intermediate” and “final” stages, he eventually passed out in a later squad, so a fortiori the likelihood was that P (with no evidence that she would have failed these or other disciplines in any event) would have passed out eventually once physically healthy (in line with Kwan’s testimony above). 933.On the other hand, Ms Chao submitted that comparable “Hui” was in fact Hui Yeuk-Fai Ivan who was no 6 and ranked 14out of 14 (ie even lower than P) in the results of the written examination on 18 November 2013 (F/733-734), but it was unclear how he performed in subsequent MFT test after he fell back squad and delayed passing out (see footnote 173 above). Ms Chao suggested that even though comparable “Hui” (who was still gainfully employed by HKPF) demonstrated that squad examination results might not necessarily reflect a PI’s future at the College/HKPF, it did not necessarily mean P could pass out like “Hui” as there were many other factors that would have affected her fate. 934.The short answer to this point was that P’s situation was quite different from Hui and Wong because (as I have found and as assumed under Scenario 2) she chose to voluntarily resign from HKPF rather than to carry on. I reiterate my findings in this Judgment and my observations in paragraph 931 above in relation to “reasonable accommodation” under HQO12/11. As for P’s allegations as regards her sick leave, I have found she did not submit the 3rd MC to Kwan/College, and concealed the possibility of future sick leave due to needed surgery and extensive rehabilitation. 935.Fourthly, Ms Chao submitted it is also unclear as to whether P would have continued to be retained even if she passed out. P gave evidence under cross-examination that to P’s knowledge and from what she had learned from the senior PIs of the College, once she passed out there was no reason not to be employed by HKPF. But Ms Chao suggested this was contrary to the explicit wording of the Letter of Appointment, which P admittedly understood at the material time, that any offer of further appointment beyond the current one was solely at the discretion of the government who was not obliged to give any reason for not offering further appointment, and that there should be no presumption further appointment would be offered. It was said P must have known that even if she passed out, it was not guaranteed she would become an IP. 936.I disagree. The court in considering loss and damages under tort is not concerned with strict contractual position between the parties, but what practically would have happened. Even though continued employment as an IP after passing out was not contractually guaranteed, Kwan himself gave evidence that if PIs could complete PI training and meet the passing out requirements, he would disagree that HKPF would not have continued to employ them. I agree that if P were able to pass out, she would have been employed to work as qualified IP for HKPF (see also paragraph 376 above). But P faced an antecedent hurdle. In my view, it could not be shown on the present evidence that P would likely have passed out with PI566, or indeed with the next intake squad or at all, which was speculative as she voluntarily resigned on 3 January 2014. (b) Congenial employment? 937.Ms Chao questioned (a) whether being a police officer was P’s “dream” and/or (b) whether P enjoyed such job given her doubtful credibility. Ms Chao argued that for (b) above, since P had been a PI (similar to an apprentice) for about 3 months, which was her 1st job after graduation (except for the short stint with Cathay Pacific), P had not shown on a balance of probabilities that she had to give up a job which she enjoyed.[185] 938.On the other hand, Mr Sakhrani submitted P clearly stated in P 1st WStmt and told the Psy Experts it was her dream to be a police officer, and the Psy Report noted P expressed strong sense of pride to be a police officer in light of her underprivileged upbringing, and she liked training at the College. Even Kwan testified it was common for young PI recruits to have such a dream. In Slater v Commissioner of Police[186] cited by Ms Chao rather than Mr Sakhrani, Bharwaney J citing the observations of Deputy Judge Leighton-Williams QC in Lane v Lake[187] said that “such an award [for loss of congenial employment] may be made to a plaintiff who has had to give up an employment which he enjoyed and which gave him satisfaction, and …… such awards are frequently made to policemen and firemen ……” (page 25). Further, in Lai Jianxing v Sakoma (HK) Ltd, Kwan JA (as she then was) noted on the facts of that case that although there might not have been “evidence to prove loss of job satisfaction, loss of pride and low self-esteem. I think the facts speak for themselves” (page 604).[188] Mr Sakhrani submitted that since P’s current career path was completely unrelated to police work, she could not be expected to derive the same satisfaction from this job as she would have if she had become an IP. 939.I accept it was P’s dream to become an IP and to work for HKPF. I also accept that if she were able to cope she might well have enjoyed the work of a PI and/or an IP. But as it were, she was floundering in her academic studies and in her physical training, and she suffered hardships and pressure as a PI even without the Accident. She was so stressed and pessimistic about her situation that she developed psychogenic signs of vomiting, tantrums, tempers and weight loss. P’s Personality did not help because whilst it pushed her towards her goal of being an IP (which fed her pride and self-esteem), it did not equip her with the fortitude to work through adversities. Instead, P’s Personality caused her to be unhappy about the large gap between her dream and her abilities, causing her to shy away from friendly overtures from squad mates which she found tiresome and annoying, and to perceive her superiors as being harsh and picking on her. Chau explained that the purpose of PI training was to enable PIs to learn the necessary skills required of IPs and to withstand the significant work pressure of IPs, but in light of P’s weak performance in and her stressed response to PI training, it was unclear whether she would meet the work pressures of being an IP with fortitude and, more importantly, with true enjoyment and satisfaction despite her dream to be an IP. This was a wholly different situation from Lai Jianxing in which the plaintiff was a seaman for 22 years who could not return to his post, or from Slater in which the plaintiff served as a police officer from 1987 to 2010 and risen through the ranks to CIP of Marine West Division in charge of daily operational deployment, assessment and/or training of various police launches/vessels and some 300 subordinates from PCs to IPs. I am not satisfied that P had established on balance that but for the Accident she had an established congenial employment in contra-distinction to a wishful dream that fed her pride and that of her family/relatives. (c) Causation 940.According to the ARSoD, P claimed loss of congenial employment due to her dream job as a police officer because of (a) D’s negligence in respect of the Accident and (b) she was forced out of HKPF. P’s reliance on (b) above was echoed by Mr Sakhrani’s suggestion that the claim for loss of congenial employment was justified because “[as] a result of the actions of Chau, Kwan and Tan, it is claimed that P’s employment was terminated prematurely. She was unable, therefore, to complete the remaining 26 weeks or so of the [Course] and could not become an [IP], which has been her dream ……” (see paragraph 31 of Mr Sakhrani’s written opening submissions) and “…… [if] P had not been forced out of the HKPF, there is no indication that she would not have been able to complete the [Course], even after surgery ……” (see paragraph 185 of Mr Sakhrani’s written closing submissions). However, under Scenario 2 (and as I have found), P resigned voluntarily and was not forced out of HKPF, so any alleged contribution by (b) above must be ignored. 941.On the other hand, Ms Chao submitted that P resigned voluntarily and therefore should not be entitled to any loss of congenial employment.[189] I agree. In Slater, the plaintiff was a police officer who suffered injury due to accident at work. He continued to suffer periodic low back pain in his low back, mild decreased sensation in both feet and a real risk that his disc extrusion might get worse and result in nerve compression. From commencement of his sick leave until November 2013 he was posted as a reserve officer and was not required to work, but he was on full pay and benefits. He would have retired at 55 years on 7 February 2015. But upon rejection of his application for full pay leave up to 21 February 2014, he resigned in January 2014 to facilitate and finance his wife’s wish to relocate to Thailand and to deal with her health problems. But “…… [although] the cessation of full pay sick leave and his wife’s health issues made him consider leaving Hong Kong in January 2014, [the learned judge was] satisfied that, if this accident had not occurred, he would have continued to work as a [CIP] of the Marine Region until he reached the age of 55 …… notwithstanding his wife’s health issues ……” (page 10). Nevertheless, Bharwaney J held as follows at page 25:
942.I reiterate my findings in this Judgment and my observations in paragraph 931 above about reasonable accommodation afforded to P by, say, removing some physically demanding duties (eg by modified training) and arranging light duty after the Accident, but despite such reasonable accommodation and her knowledge of the possibilities of Postponement and/or Re-training, P for her own reasons (a) concealed the 3rd MC, her needed surgery/rehabilitation, her MRI left knee and its results, and the follow-up appointment with UCH’s DOT on 21 January 2014 for operation decision from Kwan, Chau and the College, (b) did not contemplate the aforesaid possibilities of Postponement and Re-training, and (c) chose to resign voluntarily. In such circumstances and on the assumed basis of Scenario 2, I am not persuaded P would be entitled to loss of congenial employment. 943.As regards Ms Chao’s submissions that P had prospect of re-joining HKPF in future in view of the Ortho Experts’ opinion in paragraphs 923 above, Mr Sakhrani submitted that (a) P’s employment was terminated prematurely so she was unable to complete the remaining 26 weeks or so of the Course and could not become an IP, (b) as P had been out of action for a number of years, P had no prospect of re-joining HKPF, and her chances of being able to return to PI training now (ie when she was some 7 years older) were nil, and (c) none of D’s witnesses indicated they were willing to take P back. In my view, (a) above was irrelevant under Scenario 2 which assumed that P resigned voluntarily. 944.In my view, the Ortho Experts’ opinion in paragraph 923 above concerned whether P’s condition after surgery/rehabilitation was orthopaedically compatible with PI’s work duties. But P’s ability to re-join HKPF depended on wider considerations. Quite simply, P was not confident about resuming PI training (see paragraphs 848 and 863 above), and she did not want to be reminded of her time with HKPF (see footnote 155 above), but Kwan emphasised that determination and perseverance were most important for passing out upon falling back squad. Dr Lai opined P still had mild residual psychiatric symptoms including inter alia fear of further injury to the knee and persisting feeling of herself being worse off than her squad mates at the College, and considered “…… it might not be practical for her to consider returning to work as a police officer ……” (see paragraph 895 above). Dr Hung opined that putting aside P’s physical impairment she still had mild symptoms of major depressive disorder which would have affected her ability to work as a police officer (see paragraph 899 above). 945.Even on the physical side, P still had stiffness of the left knee and there might be pain on running (see paragraph 846 and footnotes 153-154 above and see Dr Wong’s opinion in paragraph 886 above), and there was reduction in range of motion of her left knee, eg she had to kneel in a modified manner and could not squat in the usual way (see paragraphs 875 and 879 above). This meant P could not have performed the squat-thrust (which was part of the Physical Fitness Test and the physical training of the Course), and she would also have difficulty in revolver training in which she had to kneel and shoot (see footnotes 68 and 92 above). Indeed, Dr Lam accepted P would have difficulty in bending her left knee and squatting down, and opined that activities that would cause increased stress to the left knee (eg full squat, kneeling on left knee / both knees, prolonged walking/standing, say, over 1-2 hours, fast running etc) could cause discomfort or even pain in the left knee (see paragraph 883 above). Although Dr Lam opined that with more self exercises P might be able to cope with the requirements of PI training, he accepted there would be mild reduction in capacity/proficiency. But both Kwan/Chau pointed out that the passing out standards were strict and would not be changed for any recruit. 946.Bearing in mind the matters in paragraphs 944-945 above, the nature of PI training which included the squat-thrust, and the work duties of IPs which included use of firearms, I find on balance there was little if any prospect of P re-joining HKPF. Taking into account all of the above discussions and findings, I find P failed to prove on balance any loss of congenial employment. 947.There is, therefore, no need to me to consider the cases cited by Mr Sakhrani that he said illustrated the awards for such loss of congenial employment for police officers who remained employed by HKPF but their work was restricted to clerical duties, eg Li Yiu Hung Philip v Man King Sun,[190] Yip Chung Man v Secretary for Justice on behalf of the Commissioner of Police,[191] and Chong Siu Lung v Au-Yong Shong Samuel & anor,[192] which cases, according to Mr Sakhrani, would not be directly relevant as P (who was more senior than a PC) lost her job entirely, and also the case of Yeung Lai Ping cited by Ms Chao. But had an award been made for loss of congenial employment, I agree with Ms Chao that there should be “crumbling skull discount” for P’s Knee Condition. XLII. SPECIAL DAMAGES 948.Under the ARSoD, P claimed (a) medical expenses ($35,255), (b) travelling expenses ($3,022.40), (c) tonic food expenses ($9,000), (d) cost of yoga mat ($100), (e) cost of “Kinesio Tex” tapes ($2,800), (f) cost of walking stick ($80), and (g) cost of crutches ($250). In the Answer, D put P to proof on the same. (a) Medical and travelling expenses 949.Ms Chao accepted medical expenses in the sum of $35,255 and travelling expenses in the sum of $3,022.40. Given D’s stance, I would not proceed to consider discount for some medical attendances that seemed to be for P’s other ailments or conditions (see Part XXXV(k)-(l) and (n) above). (b) Tonic food expenses 950.There were no receipts for tonic food, which P averred in the ARSoD to include milk powder and fish maw. D complained that P had not provided any supporting medical advice / expert opinion and/or receipts, and she had not explained how milk powder and fish maw would have helped her injury and treatment as well as when and how much she consumed. But Mr Sakhrani reminded that P had the 1st/2nd Surgeries (in addition to her physically weakened state due to inactivity), so tonic food was consumed to aid her recovery in the public hospital setting. 951.I agree only a reasonable sum would be awarded where there was no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge. But the reasonableness of the sum claimed would to be viewed against the nature of the injuries, the length of hospital stay and rehabilitation, and the extent of the residues/disabilities (which I have discussed above in relation to P). Following Yu Ki v Chin Kit Lam[193] and judging from the nature of P’s injuries and treatment (which included 2 surgeries and 137 physiotherapy sessions for muscle strengthening), I allow a global sum of $7,000 for P’s claim for tonic food expenses. (c) Yoga mat and “Kinesio Tex” tapes 952.D accepted the expenses for the miscellaneous items of “Kinesio Tex” tapes, walking stick and crutches in the sum of $3,130, but not the expenses for purchasing the yoga mat (even though there was a supporting receipt) because the reason for such purchase had not been explained. Mr Sakhrani submitted that the yoga mat was to aid P’s knee recovery. In my view, the physiotherapy sessions were mainly balancing and muscle strengthening exercises to build up the soft tissue support for P’s left knee. P would have to supplement the physiotherapy sessions with home exercises. A yoga mat was an eminently sensible aid, especially when at the initial stage after surgery and knee-brace immobilisation P had to train her balance. The full sum of $3,230 should be allowed on global basis. (d) Summary 953.Under Scenario 2, the award for special damages would be $35,255 + $3,022.40 + $7,000 + $3,230 = $48,507.40. However, there should be “crumbling skull” discount of 60% for P’s Knee Condition, so the award for special damages under Scenario 2 would be $48,507.40 x 40% = $19,402.96. XLIII. SUMMARY OF AWARD UNDER ASSUMED SCENARIO 2 954.In light of the above analysis, had P succeeded on the question of liability for the Accident but not for the post-Accident events (under Scenario 2), which assumption I do not agree, she would have been awarded damages for $140,000 (PSLA), $443,274 (pre-trial loss of earnings) and $19,402.96 (special damages). However, there should be further discount for contributory negligence of 30%, which Ms Chao submitted should be applicable to PSLA and special damages but not pre-trial loss of earnings. Since P had to give credit for a sum of $1,336,108.56 being EC that P received under DCEC2645/2015, which sum well exceeded the notional damages that would have been allowed under Scenario 2, P’s claim would not have availed her and she would not have been entitled to any damages. XLIV. CONCLUSION 955.In the circumstances, P’s claim is dismissed. There is no reason why costs should not event, and I therefore grant a costs order nisi that P shall pay D’s costs of the action (including all costs reserved if any) to be taxed if not agreed, and that P’s own costs be taxed in accordance with Legal Aid Regulations.
Mr Sanjay Sakhrani, instructed by Paul C K Tang & Chiu, solicitors for the plaintiff Ms Julie Chao, instructed by the Department for Justice for the defendant [1] woman probationary inspector [2] also known variously as School of Foundation Training, Foundation Training School and/or Foundation Training Centre [3] (a) to ensure P was reasonably safe whilst she was at work at the Premises (including the Staircase), (b) to take all reasonable precautions for P’s safety whilst she was carrying out her duties, (c) to assess the risk of injury to P and to ensure P was not exposed to any risk of damage/injury which HKPF knew or ought to have known, (d) to provide/maintain adequate and proper equipment, information, training, instructions and supervision to P to ensure her safety when she was at work at the Premises (including the Staircase), (e) to warn P of any danger/risk of injury while working at the Premises (including the Staircase), (f) to provide/maintain a place or system of work that was safe and without risks to P’s health, (g) to ensure P had access to timely protection of her lawful rights and interests and to judicial remedies, (h) to ensure P had legal protection of her rights, (i) to ensure P had opportunity to seek legal advice to understand her rights, and (j) to prevent unlawful/inappropriate conduct by its employees in their treatment and dealings with injured persons such as P [4] according to the layout plan at H/943 (but also known variously as WPI Block (H/944) or Women Inspector Quarters) [5] the estimated time of sunrise on 20 December 2013 was at 6:58am (see letter from Hong Kong Observatory dated 5 July 2018 to P’s solicitors, E/435) [6] D averred the lighting of the Staircase was sufficient, but P claimed HKPF must have known/accepted the lighting at the Staircase was insufficient because after the Accident HKPF painted the edges of each and every step of the Staircase in yellow, which measure was a practical step that could have been taken before the Accident (see para 7(e)-(f) below) [7] P averred that (a) by the 2nd MC Dr Leung Kin Ho Leo of Pamela Youde Nethersole Eastern Hospital certified P to suffer from “left knee injury”, granted P sick leave for 21-28 December 2013, and advised P to “avoid physical duty” for 2 weeks from 21 December 2013, and (b) by the 4th MC Dr Lau Sun Wing of United Christian Hospital certified P to suffer from “left patellar dislocation”, granted P sick leave for 27 December 2013, and advised P to avoid physical duty for 4 weeks from 27 December 2013 and to carry out “light duty for 4 weeks and avoid strenuous exercise / marching / foot drilling” [8] P averred that (a) on 3 January 2014 Chau told P orally that if she did not resign voluntarily she would be subjected to a formal investigation because she was suspected of feigning her injuries (which allegation was without any basis), (b) neither Chau nor Kwan considered or discussed with P, having regard to her treating doctors’ advice or her MCs, about her injuries as a result of the Accident, her condition and her prognosis, or why she had to use a walking stick, (c) neither Chau nor Kwan requested to seek an opinion from P’s treating doctors, (d) neither Chau nor Kwan arranged an independent doctor to examine P and to give an opinion, (e) Chau and Kwan (who were more senior than P being a junior PI with HKPF on probationary terms for about 2 months, and who were also in charge of P’s training) had a “teacher-student” relationship with her, and they knew and/or ought to have known P would be worried about any formal investigation or its impact, (f) Chau and Kwan were therefore in a dominant position and had the capacity to influence P, (g) P initially wrote a resignation letter in manuscript to the effect that she resigned “due to health reasons”, which Kwan refused to accept, and he required her to write another resignation letter using another sheet of paper stating she resigned “due to personal reasons” instead, (h) Kwan told P writing such resignation letter that stated she resigned “due to personal reasons” was for her benefit, (i) P was alone in the room with Kwan and had no opportunity to seek advice from other individuals, (j) Kwan did not advise P to seek legal advice even though he knew and/or ought to have known the resignation letter P wrote would be disadvantageous and detrimental to her rights under the Employees’ Compensation Ordinance Cap 282, under the Disability Discrimination Ordinance Cap 487 and under common law, and/or (k) there was no urgency or necessity to require P to write the resignation letter, and Kwan could have allowed her reasonable time to consider her legal position, to seek legal advice and then to type out the letter [9] P averred the relevant/significant matters included (a) the root reason for her resignation purportedly given for “personal reasons”, (b) the reason for the Resignation Letter to be written in manuscript, (c) the extent of her injuries caused by the Accident, her condition and her prognosis, (d) whether it was possible for her to resume (and if so when she could resume) full duties upon recovery from her left knee injuries, having regard to her treating doctors’ advice and the MCs, (e) whether and what alternative work or training she could do or undergo, having regard to her treating doctors’ advice and the MCs, (f) whether her training could be postponed, and (g) whether she knew/understood her rights and remedies arising out of her injuries as a result of the worked-related Accident including her right to claim employees’ compensation and common law damages [10] D averred that on 3 January 2014 P made the 3/1/14 Stmt that stated inter alia (a) she had left knee injuries/dislocations in 2003 and in 2006, (b) at the material time she accidentally lost her balance and twisted her left knee, (c) the lighting was sufficient and the weather was fine with no rain and/or wet ground, (d) she was eager to go down the Staircase quickly so she accidentally hurt herself, and (e) she was told she could correct, alter or add anything in the 3/1/14 Stmt as she wished (but P averred that on 3 January 2014 (i) Kwan failed to give a copy of the 3/1/14 Stmt to her, and (ii) it was only on/about 12/13 September 2017 that she collected a copy thereof from HKPF, and on 7 October 2017 that she submitted her amended version of the 3/1/14 Stmt to HKPF) [11] according to D’s further and better particulars by letter dated 9 May 2018 from the Department of Justice to P’s solicitors (“D’s FBP”), light duty for P included “activities or training which did not have heavy physical demand” [12] according to D’s FBP, in/about December 2013 Kwan sought to contact P’s treating doctor (whose name he could not recall) by telephone [13] (a) wrongly causing, permitting or requiring P to descend the Staircase, (b) failing to ensure there was sufficient lighting at the Staircase, (c) failing to ensure the edge of each and every step of the Staircase was painted in yellow, (d) failing to provide P with a torch, (e) failing to instruct/warn P to carry a torch with her when descending the Staircase before sunrise, (f) failing to carry out any suitable/ sufficient assessment of the risks to P’s health and safety in respect of the Course and the need for her to descend the Staircase before sunrise, (g) failing to assess the risk of injury to P having regard to the matters in paras 6-7 above, (h) failing to implement a safe system for P to descend the Staircase before sunrise, (i) exposing P to a danger or foreseeable risk of injury which HKPF knew and/or ought to have known, (j) in all the circumstances failing to provide/maintain a safe place/system of work at the Premises (including the Staircase), (k) failing to give instructions and to implement guidelines, information, warnings, training and supervision to its employees (including Chau, Kwan and Tan) on how to deal with employees who were injured at the Premises, (l) failing to give instructions and to implement guidelines, information, warnings, training and supervision to its employees (including Chau, Kwan and Tan) on the right of injured employees (including P) to timely access to advice and protection of rights under the Employees’ Compensation Ordinance Cap 282 and the Disability Discrimination Ordinance Cap 487, (m) alternatively to (k)-(l) above, if guidelines/information had been implemented, failing to supervise and provide training to its employees (including Chau, Kwan and Tan) on the matters in (k)-(l) above, and (n) failing to put procedures in place to prevent its employees from abusing their positions and/or exerting duress and undue influence on injured employees such as P [14] (a) P repeated the particulars in footnote 13(a)-(j) above, (b) failing to ensure, so far as reasonably practicable, the safety and health of HKPF’s employees at work contrary to section 6(1) of the OSHO, (c) failing to provide/maintain a system of work that was so far as reasonably practicable, safe and without risks to the health of its employees contrary to section 6(2)(a) of the OSHO, (d) failing to provide such information, instruction, training and supervision as might be necessary to ensure, so far as reasonably practicable, the safety and health at work of its employees contrary to section 6(2)(c) of the OSHO, (e) failing to provide/maintain a working environment for its employees that was, so far as reasonably practicable, safe and without risks to health contrary to section 6(2)(e) of the OSHO, (f) failing to take such care as in all the circumstances of the case was reasonable to see that its employees would be reasonably safe in using the Premises (including the Staircase) for the purposes for which they were invited or permitted by HKPF to be there contrary to section 3(2) of the OLO [15] the relevant headquarters order applicable at the time of the Accident was Headquarters Order No 12 of 2011 – The Management of Police Officers with Impaired Health issued by the then Commissioner of Police on 7 October 2011 (“HQO12/11”) [16] (a) exposing herself to unnecessary risks, (b) failing to take reasonable steps to avoid the Accident, (c) failing to take any or any adequate/proper care of her own safety, and (d) in the premises failing to have any or any proper regard or to take any reasonable care for her own safety and/or to apply common sense and take all practicable steps to avoid exposing herself to risk of injury or damage of which she knew or ought reasonably to have foreseen and/or known [17] P averred she did not provide her MCs to HKPF until 13 November 2014 because (a) she was never advised by HKPF or its employees (in particular Kwan, who completed the Form 2 entitled “Notice by Employer of the Death of An Employee or of An Accident to an Employee Resulting in Death or Incapacity” dated 3 January 2014) that she was entitled to receive periodical payments upon submission of her MCs, and (b) shortly before 13 November 2014 the Labour Department advised P of her entitlement to receive periodical payments [18] (a) the conduct and behaviour of HKPF as well as Kwan, Chau and Tan (all being government servants) were unconstitutional, arbitrary and oppressive, (b) their conduct and behaviour was unconstitutional because contrary to Article 35 of the Basic Law they had put in place a system which deprived P of timely protection of her lawful rights and interests and to judicial remedies, (c) their conduct and behaviour was arbitrary because HKPF failed to put any system in place to ensure injured persons such as P would be treated fairly and would have reasonable opportunity to seek legal advice and have timely protection of her legal rights (and P repeated the matters in para 8 above), (d) their conduct and behaviour was oppressive (and P repeated the matters in para 8 above), and further D designed/ allowed an exit interview (which appeared to be proper with the completion of the Record of Service) that was in fact a facade to mask (i) the duress and undue influence referred to in footnote 8 above, (ii) the abuse of the teacher-student relationship held between HKPF, Kwan and Chau (on the one part) and P (on the other part), and (iii) the profit and advantages enjoyed by HKPF, Kwan and Chau referred to in (f) below, (e) D in defence of DCEC2645/2015 persistently claimed P had resigned voluntarily thereby aggravating the psychiatric injury P suffered, and (f) the conduct and behaviour on the part of HKPF, Kwan, Chau and Tan were calculated to make a profit and to obtain advantages in that (i) under the terms of the letter of appointment dated 25 September 2013 issued by HKPF to P, P’s employment might be terminated by the government “…… by giving three months’ notice or one month’s salary in lieu of notice ……”, (ii) by requiring P to resign on a voluntary basis (1) HKPF saved 1 month’s salary or alternatively (2) it would not be necessary for HKPF to give 3 months’ notice, and (3) HKPF, Kwan, Chau and Tan would no longer need to train, deal with or liaise with P, who might require a long and unknown period of sick leave, (4) HKPF, Kwan, Chau and Tan would save the trouble of having to explain to other inspectors of police (who were aware of P’s injuries) how injured employees were dealt with, and could instead say P resigned voluntarily, (5) more importantly, Kwan, Chau, Tan and HKPF could evade the operation of section 48 of the Employees’ Compensation Ordinance Cap 282, which provides that it shall be an offence for an employer to terminate the contract of employment of an employee who had suffered incapacity in circumstances which would have entitled him/her to compensation under the ordinance, (6) Kwan, Chau, Tan and HKPF could evade payment of periodical payments payable under section 10 of the Employees’ Compensation Ordinance Cap 282, and (7) Kwan, Chau, Tan and HKPF could evade payment of punitive or exemplary damages, which the District Court might award to P, and (iii) HKPF did not pay any periodical payments to P until 5 March 2015, ie about 14.5 months after the Accident, which payments amounted to $397,036.36 for the period from 4 January 2014 to 18 February 2015, but HKPF never gave P any reason why such periodical payments were not made in a timely manner as required by the Employees’ Compensation Ordinance Cap 282 [19] see Star Glory Investment Ltd v Kai Tuo (HK) Technology Ltd & ors HCA3523/2002, Chung J (unreported, 13 August 2005) para 12 (see also Four Seas Fishballs Co Ltd v Yeung Hung Sin & anor HCA4159/2003, Chung J (unreported, 25 August 2006) para 20, Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494, Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, 524, Hui Cheung Fai & anor v Daiwa Development Limited & ors HCA1734/2009, DHCJ Eugene Fung J (unreported, 8 April 2014) paras 76-83 and Lau Ting Keung v Chan Wai Ying trading as Wai Shun Engineering Co & anor HCPI284/2015, DHCJ Keith Yeung SC (as he then was) (unreported, 18 April 2019) para 11) [20] see F/7761, 764, 772, 794, 799, 812, 819, 823 and 829 [21] see job application letters dated 28 April, 3 May, 17 May, 30 September and 3 December 2016 addressed to various corporations and institutions (F/762, 765, 773, 797 and 824) [22] eg (a) Kwan and Chau forced P to resign, and (b) Kwan forced P to change the reason for her resignation from “health reasons” to “personal reasons” in the Resignation Letter [23] ie P in fact knew (a) she required surgery and rehabilitation which would take time, (b) she was unlikely to pass out or pass out of the College in time, and (c) she resigned or “personal reasons” to save face as she did not want to be looked down upon [24] but P claimed she in fact planned to have surgery, if required, after her graduation from the Course [25] HKPF’s letter of appointment dated 25 September 2013 described that P was employed as “[IP] in the [HKPF] on probationary terms for a fixed period of three years ……” (F/736) [26] F/761, 764, 772, 796, 799, 812 and 819 (but the “special remarks” in the CV for the job application dated 22 September 2016 to Hang Lung Property Ltd (F/793-794) was replaced by “availability – 24 October 2016”, and the “special remarks” in the CV for the job application dated 5 December 2016 to Hong Kong St John Ambulance (F/822-823) was replaced by “Expected Salary HKD 15000-18000 (Negotiable)” [27] ie whether P was then still under police training or whether she actually worked as a police officer with skills expected of a qualified IP [28] P agreed some potential employers had their own recruitment forms, so she would not submit her own job application letter and/or CV, and it appeared her application to HKEAA was one of those [29] see F/760-762 (Hong Kong Suning Commerce Co, Limited), F/763-765 (Pricerite Stores Limited), F/771-773 (The Sincere Company Limited), F/793-794 (Hang Lung Properties Limited), F/795-797 (G2000 (Apparel) Limited), F/817-819 (The Hong Kong and China Gas Company Limited), F/822-824 (Hong Kong St John Ambulance) and F/828-829 (Sino-US Environmental Regeneration Resource Limited) [30] P claimed she worked briefly as a temporary homework tutorial class teacher, a part-time stocktaker and a community organiser (see Part XXXVI below) [31] eg P applied to read the full-time juris doctor programme when she struggled in her academic training at the College on various law-related subjects such as “Common Law, Statute Law and the Basic Law” and “Criminal Liability and Defences to Crime” (see para 435 below and F/733-734) [32] at the time when Kwan made the Kwan 1st/2nd WStmts, he was attached to the Smugglers’ Ridge Team, Weapons Training, College as firearms instructor supervisor, which post he took up in November 2015 [33] para 4 of the SSP FT Standing Order No 10-08 Occupational Safety and Health issued by HKPF (E/565-569) stated inter alia that “[within] the School of Foundation Training [ie the College], there are five Divisions namely Support Division, Recruit Training Division, Basic Competencies Training Division, Weapon Training Division and Police Band ……” [34] at the time of the Chau 1st WStmt, Chau was the assistant divisional commander (administration), marine north division, HKPF, which post he took up on 27 August 2017, and at the time of the Chau 2nd WStmt, Chau was attached to the marine outer waters district as training and staff relations officer / police community relations officer, which post he took up on 23 December 2018 [35] the P 1st WStmt described Chau as class teacher [36] at the time of the Choy Stmt, Choy was WSgt of Yau Tsim District Police Community Relations Officer Support (Neighbourhood Police Co-ordinator), HKPF having taken up such post on 6 September 2015 [37] see the 3/1/14 Memo and the OSH Accident Report Form in para 102 above and para 817 below respectively [38] [2020] 4 HKLRD 508, 527-528 [39] Vol 1, para 38/2A/6 at p 888 [40] HCMP436/2013, G Lam J (unreported, 12 February 2015) paras 12-14 [41] see the plea in para 27(6)(b)(iii) of the SoC that “[by] requiring [P] to resign on a voluntary basis …… HKPF, [Kwan], [Chau] and [Tan] would no longer need to train, deal with or liaise with [P], who might require a long and known period of sick leave” and Mr Sakhrani’s complaint in para 88(b) above [42] which provisions in P’s letter of appointment would only have relevance if HKPF had otherwise intended to terminate P’s employment as a PI in any event [43] which statutory provision would only have relevance if HKPF intended to terminate P’s employment as a PI in any event, and Mr Sakhrani’s complaints in para 88(d) above [44] eg, Kwan explained that PI Yeung, who was a PI in Kwan’s 2012 intake class, had to suspend his PI training, and was deployed to alternative posting as receptionist in the duty room [45] as seen in Part XXXV(h) below, on 13 November 2014 P sent further MCs to HKPF’s Welfare Team, on 7 January 2015 HKPF’s Welfare Team gave acknowledgment, on 6 February 2015 P at the request of HKPF’s Welfare Team gave letter of authorisation for obtaining MNR from RTSKH, PYNEH and UCH, and on 5 March 2015 D paid periodical payments in the sum of $397,036.36 to P [46] (a) P said her squad mates were supportive when she felt gloomy over difficulties in PI training (see para 429 below), (b) P’s squad mates would have known P received modified training and additional/extra training, and (c) P’s squad mates would have known P had below average results in academic and physical training examinations for they took those tests together and shared information [47] P’s squad mates knew she had the Accident and left knee injury, and afterwards she remained on light duty as observer when they had physical training [48] HCA382/2009 (unreported, 2 April 2015) paras 33-35 [49] see Wisniewski v Central Manchester Health Authority [1998] PIQR P324, P340, Tullett v Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356, 365, Ip Man Shan, Henry v Ching Hing Construction Co Ltd [2003] 1 HKC 256, 307 and Kao Lee & Yip v Koo Hoi Yan & ors [2003] 3 HKLRD 296, 310, and see also Chan Wai Chung v China Travel Service (Hong Kong) Limited & ors HCPI914/2015 (unreported, 14 December 2022) paras 40-44 [50] HCPI347/2012 (unreported, 14 October 2016) [51] CACV156/2013 (unreported, 27 May 2015) cited in Lau Ting Keung v Chan Wai Ying trading as Wai Shun Engineering Co HCPI284/2015, DHCJ Keith Yeung SC (as he then was) (unreported, 18 April 2019) para 27 [52] P’s 2 surgeries on her left knee were after the Accident [53] see also TKOH’s clinical management sheet dated 28 January 2014 (G/916) which gave “asthma” as P’s past medical history [54] see consultation notes by UCH’s anaesthesia department dated 18 March 2014 for pre-operative anaesthetic assessment (G/929), UCH’s progress note dated 9 May 2014 (G/931-932), discharge summary dated 20 May 2014 by UCH’s DOT(G/918), and UCH’s occupational therapy progress note dated 27 November 2014 (G/928) [55] see consultation notes dated 27 December 2013 by UCH’s DOT (G/917) [56] in the Ortho 1st Jt Report, Dr Lam upon referring to medical literature said “for 1st time patella dislocation treated conservatively, the recurrence rate (follow up from 2-14 years) varied between 20%-71%. For instance, for the group with follow-up at 7 years, the redislocation rate was 39%” (D/362-363) [57] see Lewallen L, McIntosh A and Dahm D, “First Time Patellofemoral Dislocation: Risk Factors for Recurrent Instability” J Knee Surg 2015 Aug 28(4):303-9 (D/367-368) and Christensen TC, Sanders TL, Pareek A, Mohan R, Dahm DL and Krych AJ, “Risk Factors and Time to Recurrent Ipsilateral and Contralateral Patellar Dislocations” Am J Sports Med 2017 Jul; 45(9):2015-2110 (D/369-370) [58] Dr Wong explained in re-examination that the orthopaedic surgeon would rely on the CT findings to select the appropriate type of surgical procedure, and the marked increase in the TTTG-TTTE ratio would guide the operative procedure and the surgical incision to the bone to improve the alignment [59] ie P was 12 years old at the time of the 1st Episode when she had left patella dislocation whilst playing handball, and, according to Dr Lam, her “…… joints are usually laxer / more flexible + muscles are less strong ……”, and her musculoskeletal structure had yet to mature [60] in fact, it was just a little over 2 years from the 1st Episode in October 2003 to the 2nd Episode in January 2004 [61] Ms Chao submitted that (a) Dr Lam did not provide any medical literature to support his opinion that the chance of further dislocation tended to decrease due to the factors he mentioned, and (b) the medical literature Dr Lam cited suggested that if first-time patella dislocation occurred in a younger patient, there was higher chance of further dislocation and “statistically significant decrease in time to recurrence” (especially in light of the risk factors referred to in para 167(a)-(b) and (f)-(g) above) [62] eg the very same orthopaedist of PYNEH’s DOT recorded “iVMO Ⓛ knee” (ie wasting of the vastus medialis obliquus muscle) in the patient notes dated 20 December 2013 (ie the day of the Accident (G/906-907) [63] it was a finding in the MRI Report (C/302-303) that P’s medial retinaculum of which the vastus medialis obliquus was a component appeared lax, which meant it was not “stiff” [64] English translation is “…… the hospital has not arranged for me to be admitted into [PYNEH]. The specialist orthopaedic doctor has just helped me carry out an examination. He said that the bones have not been hurt, the main problem should be that the knee cap was subjected to intensive training, could not withstand the strength, and hence the position is shifted once again. The remaining ligament has been torn. Therefore, it would be more loose later ……” [65] Mr Sakhrani submitted that on the question of liability there was the further question as to whether P’s left knee would have remained asymptomatic but for the Accident [66] Dr Lam in his evidence-in-chief rested his views on (a) Dr J Lam’s medical report dated 22 February 2016 (C/300-301) that recorded “…… [P] played hand ball at the high level”, which information necessarily came from P herself (but Ms Chao complained that Dr J Lam’s medical report did not state the period when P played handball at high level, which could have been before and not after the 2nd Episode, and Ms Chao further reminded that such account recorded by Dr J Lam was weakened by (i) inconsistency with other medical documents as he failed to document muscle wasting at a time shortly after the Accident (see paras 299-308 below), and (ii) identification of a loose body in P’s left knee that was not evident from the intraoperative record for the 1st Surgery (see paras 280-288 below), (b) P’s account to the Ortho Experts at the Ortho Exam, (c) the undated PT Record that recorded P’s handball school team won a competition in 2005 and P loved the sport, which information I have found was provided by P to the physical training instructor at the College (see para 171 above) [67] the MRI Report also noted “recent dislocation” with clinical relocation at the time of the Accident (C/303) [68] ie P’s PI Training included (i) physical training (eg vertical jump, pull-up, shuttle run, squat thrust, press-up, sit-up, 2.4km run and professional physical ability test), (ii) revolver training (having to kneel down and shoot a revolver at target), (iii) leadership exercise (having to run and act agilely to arrest target in mock policing situation), (iv) foot drill exercises (having to stand on one foot and march in rhythm), and (v) legal paper examination [69] see exhibit P1 being P’s left sulcus angle drawn by Dr Lam on Figure 6 of the Ortho 1st Jt Report, and exhibit D1 being P’s left sulcus angle drawn by Dr Wong on Figure 6 of the Ortho 1st Jt Report [70] Dr Wong opined it was similar to the problem of S-shaped spine (scoliosis), which is usually related to worsening curve of the spine during bone spurt/growth, so children with scoliosis at a young age need close monitoring as the deformity may increase significantly during a bone spurt [71] Maximilan Petri, Max Ettinger, Timo Stubig, Stephen Brand, Christian Krettek, Michael Jagodzinski and Mohamed Omar, “Current Concepts for Patellar Dislocation” Arch Trauma 2015 Sep; 4(3): e29301 published online on 1 September 2015 (D/361-266) [72] see the Consent Form dated 21 January 2014 that P signed for the 1st Surgery (G/923-927) that stated the diagnosis was “left knee recurrent dislocation of patella” and the planned procedure was “arthroscopic left knee and ligament reconstruction” with a view to “decrease chance of dislocation” [73] see the x-ray in Figure 5 of the Ortho 1st Jt Report that was expressly labelled as “erect” view [74] the MRI Report made findings of “no patellar medical facet hypoplasia” and “no osteochondral injury”, which Dr Lam saw as positive signs for P’s bony anatomy because if these conditions existed, it would have meant “…… the patella is more prone to dislocate because there’s nothing to stop it from going outside ……” [75] Dr Wong said in-chief that, as medical literature had documented, MRI scan is so sensitive that it will not miss identifying even (a) small injury to the chondral cartilage of the knee, (b) minor osteochondral lesion/fracture, and/or (c) loose fragment, which may sometimes be missed by arthroscopy [76] the coronal plane looks at the knee from the front (giving a cross-sectional view of the knee from top to bottom) and slices through the knee from front to back [77] the sagittal plane is a side view of the knee from front to back, ie a “cut you in half” view from the side [78] the axial plane looks at the knee top-down from the upper leg looking down towards the lower leg, ie a traditional “cut you in half” type view [79] Maximilan Petri, Max Ettinger, Timo Stubig, Stephen Brand, Christian Krettek, Michael Jagodzinski and Mohamed Omar, “Current Concepts for Patellar Dislocation” Arch Trauma 2015 Sep; 4(3): e29301 published online on 1 September 2015 (D/361-266) [80] the only available MRI was done by Dr Yiu on 27 December 2013, and the only available CT scan was done pre-operatively in 2014 by UCH [81] the MRI Report recorded “[intense] bone bruise with osteosclerosis is noted at lateral femoral condyle trochlea, which is in direct contact with the inferior pole of patella. Focal bone bruise is present”, “[small] amount of joint effusion”, and “[patchy] bone marrow oedema is noted at bilateral condylar edge and medial tibial edge” (C/302-303) [82] “[medial] retinaculum appears lax” was reported in the MRI Report, and Dr Lam thought this was an important finding for clinical management as it identified the relevant part for reconstruction or strengthening during surgery [83] the medical report dated 22 February 2016 by Dr J Lam noted x-ray left knee taken after the 1st Surgery and before the 2nd Surgery “…… showed satisfactory alignment of patella. There was marked osteopenia ……”, but Dr Wong explained under cross-examination that there was marked osteopenia (ie reduced bone density around the knee) around the whole knee because there was disuse atrophy due to pain and less activity of the knee after the 1st Surgery, which was post-operative status of P’s left knee [84] Dr Wong explained this was akin to the chronic situation of osteophyte (increased bone formation) in the elderly [85] on 12 March,10 April, 13 October and 26 October 2015 [86] on 12 January, 15 February, 12 April, 3 August, 19 August and 21 September 2016 [87] on 24 July, 30 August, 18 September and 4 December 2015, and 14 June 2016 [88] the P 1st WStmt claimed HKPF’s website described that after completing the 36 weeks’ foundation training Course and passing the Standard I and II examinations a PI would qualify as an IP, and after completing 3 years’ service, there would be opportunities to be promoted to SIP, CIP or SP [89] “+ x” denoted PIs from previous intake (留班生), eg for this data out of the 45 newly recruited PIs, 35 of them passed out [90] from fresh graduates from universities to, say, those returning from overseas studies after having been in employment, and those who were internally promoted from HKPF’s own ranks [91] Kwan explained under cross-examination that he probably also taught the 2012 intake because each Course of PI training lasted 9 months, but depending on the time for commencing PI training, successive squad intakes were not necessary on back-to-back basis [92] according to the Ortho 1st Jt Report, the instruction letter dated 16 October 2017 to the Ortho Experts listed P’s duties as PI under PI training were (a) physical training (including “vertical jump, pull up, shuttle run, S thrust [squat-thrust], press up, 2.4km run, professional physical ability test”), (b) revolver training (requiring to kneel down and shoot a revolver at a target), (c) leadership exercise (required to run and act agilely to arrest target in mock policing situation), (d) foot drill exercise (required to stand on one foot and march in rhythm), and (e) legal paper examination [93] according to the examination results for PI566 dated 18 November 2013 (F/734), PIs were examined on (a) police (discipline) regulations, (b) data protection, (c) common law, statute law and the Basic law, (d) dealing with suspects, (e) police powers of arrest, (f) warrants of arrest and search, (g) resisting/obstructing a police officer in the execution of his duty, (h) criminal liability and defences to crime, (i) classification of offences and criminal responsibility, and (j) evidence [94] according to the P 2nd WStmt, P claimed that at that time she showed Kwan the Chen Report which stated she suffered from “incomplete Right Bundle Block”, but she could take up the job of an IP and undergo training (see para 349 above) [95] Kwan said under cross-examination that he again mentioned such arrangements to P in a telephone conversation after the Accident when P sent WhatsApp messages to him and he asked her to call him (see para 494 below) [96] see also progress notes dated 9 May 2014 by UCH’s DOT (G/932) [97] see footnote 4 above [98] see Photo P took on 19 July 2017 that showed the Staircase (H/945) [99] “當 [P] 走落了該樓梯大概8至9級後, [P] 便跌倒。[P] 看不見[P] 踏上什麼導致本人失去平衡而跌倒。當時, 這位置是黑暗的。[P] 猜測[P] 可能踏到樓梯上的異物或樓梯的階梯邊。[P] 亦有可能踏到樓梯前的空氣而失足。跌倒後, [P] 能立即扶住樓梯旁邊的扶手欄杆。但是, [P] 已經弄傷了 [P] 的左膝。於是, [P] 便坐在樓梯上休息一會兒。因為 [P] 的膝蓋當時很痛, 並不能行走” [100] English translation is “Kwan Sir, the hospital has not arranged for me to be admitted into [PYNEH]. The specialist orthopaedic doctor has just helped me carry out an examination. He said that the bones have not been hurt, the main problem should be that the knee cap was subjected to intensive training, could not withstand the strength, and hence the position is shifted once again. The remaining ligament has been torn. Therefore, it would be more loose later. It is necessary to stay in the hospital for observation for one night. The physiotherapist will come at the forenoon to see whether it is possible to walk and then decide how long I should stay in the hospital” [101] English translation is “Sir this is the original msg that I want to send u. Kwan Sir, I have just finished seeing the physiotherapist. He asked me to try to walk slowly with the aid of a walking stick, and the doctor said that he would recommend that I use a walking stick; regardless of how slow I would need to walk, I still need to walk. Because he said that it is now the peak of influenza season, so it is to avoid unnecessary infection. I would report to Kwan Sir once there is more information. I would return to the Police College tonight because it is necessary for me to obtain the written test notes” [102] under cross-examination, Kwan was not sure whether an academic assessment was scheduled to be held in January 2014 [103] P said in re-examination that she sent the 1st MC to Kwan electronically via WhatsApp and did not subsequently provide the original paper copy to HKPF [104] (a) taking measures to facilitate P’s speedy recovery, eg avoiding physically demanding duties like foot drill, and allowing her time to rest, (b) lodging requisite forms, eg Form 2 under ECO, and (c) informing other stakeholders (eg physical training instructor) about P’s updated situation to ensure her welfare was taken care of [105] PYNEH’s discharge note dated 21 December 2013 (F/909) stated “FU [follow-up] UCH as scheduled” [106] PYNEH’s patient notes dated 20 December 2013 (F/907) stated “refer UCH & early FU [follow-up]” [107] P also told the Psy Experts that “…… [she] asked the doctor [at UCH’s DOT] not to give her sick leave but a certificate for light duties such that she could continue to attend classes, although she could refrain from physical exercises ……” [108] according to the P 1st WStmt, P claimed she could no longer recall who her class prefect was [109] the English translation is “Annexure (1) Copies of the sick leave certificates before the last day of employment are provided for your team’s reference, the originals of which have already been submitted before the last day of employment; total 2 certificates for the sick leave period from 20-Dec-2013 to 27-Dec-2013 (2) Original sick leave certificates after the last day of employment – total 10 certificates for the sick leave period from 27-Dec-2013 to 24-Nov-2014” [110] paras 23-24 of such protocol provided inter alia that the DSRM would appoint one or more officers who are qualified safety risk assessor(s) to conduct the hazard inspection process and that the DSRM would ensure that a formal hazard inspection was conducted on a monthly basis in accordance with Annex A (E/533), and Annex A provided that hazard inspection items included whether “stairs” “[are] …… adequately lit” (E/544) [111] see Rashad Muhammad v Gurung Amrit Singh trading as Fewa Company & anor CACV165/2010 (unreported, 8 July 2011) para 33 [112] see Heung Wing Yan v Hangway Housing Management Limited & anor HCPI347/2012 (unreported, 14 October 2016) paras 50-54 and Rai Siva Raj v Normal Liang trading as J Liang & Son & anor HCPI772/2006, DHCJ Raymond Leung SC (unreported, 4 March 2020) paras 84-85 [113] HCPI1387/2014, Au-yeung J (unreported, 10 September 2019) paras 14-16 [114] HCPI196/2014, DHCJ Paul Lam SC (unreported, 15 March 2016) para 57 [115] [1953] AC 180 [116] HCPI100/2009, DHCJ B Chu (as she then was) (unreported, 18 November 2013) para 61 [117] which turned out to be erroneous as evident from the intraoperative records (see paras 280-288 above), but which Dr Lam identified as evidence of severe trauma unrelated to the pre-existing P’s Knee Condition (see paras 610-614 below) [118] I do not ascribe to the harsh view suggested by Ms Chao (which P denied) that (a) P described to the treating doctors at RTSKH’s AED, PYNEH’s DOT, Dr J Lam and/or UCH’s DOT that the Accident was a recurrent left patella dislocation and (b) she tried to cover up and hide from them the pre-existing P’s Knee Condition, and I also note MNR showed that the treating nurse/doctors were well able to elicit P’s past medical history from P and/or from her MNR [119] Dr Wong said under cross-examination that the mechanism of injury in P’s account to the Ortho Experts was not documented in MNR of RTSKH’s DOT, PYNEH’s AED and UCH’s DOT which made no mention of inter alia any twisting [120] Dr Wong noted that the patient notes dated 20 December 2013 by PYNEH’s DOT (G/906-907) and the discharge note dated 21 December 2013 by PYNEH’s DOT (G/909) recorded “no other injury” (ie no other site of injury) and “no instability” (ie no feeling or sense of instability after spontaneous relocation, which meant P would likely be able to bear weight and was ambulatory afterwards) [121] I have rejected Dr Lam’s reliance on (a) alleged relatively speedy and good recovery with conservative treatment after the 2nd Episode, (b) alleged good recovery and return to high level competitive sports after the 2nd Episode, (c) P growing up to adulthood with, say, stronger muscles, “stiffer” (less lax) ligament / soft tissue, more mature bony anatomy and more “prudent” behaviour in sports and recreation, (d) P having passed some physical tests before enrolment at the College and undergoing active physical training during PI training showing significant quadriceps wasting before the Accident was unlikely and that the muscle forces in her knees should give good protection against further dislocation [122] HCPI674/2010, G Lam J (unreported, 3 April 2013) [123] [2001] 3 HKLRD 209, 212-213 citing Lord Reid’s observations in The Wagon Mound (No 2) [1967] AC 617, 642-643 [124] [2014] 3 HKLRD 194, 208-209 citing the observation of the Court of Final Appeal in Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 that it was wrong to suggest that “because the world gets wiser as it gets older, therefore it was foolish before”, and that people should not be discouraged from introducing enhanced safety measures for fear that doing so would be seen as an admission that the previous measures were inadequate [125] CACV100/2012 (unreported, 28 December 2012) [126] Mr Sakhrani cited as illustration Chan Chi Kee v Secretary for Justice (for and on behalf of Director of Leisure & Cultural Services) DCPI720/2004, DDJ W Lam (unreported, 15 August 2005) which concerned a slip and fall incident on an arched footbridge over a public swimming pool, and in that case although the learned judge found against the plaintiff on causation which rendered the issue of adequacy of cleaning irrelevant, the defendant adduced ample evidence of a system of cleaning, ie daily inspection and checking by lifeguards, cleaning contractor staff and department staff, and daily and weekly cleaning work by contractor staff and department staff, etc (para 6(1)-(7)) [127] see Clerk & Lindsell on Torts 23rd ed para 12-35 at pp 947-948 [128] DCPI720/2004, DDJ W Lam (unreported, 15 August 2005) [129] HCPI838/2015 (unreported, 15 April 2019) [130] I have also considered Yau Tsz Him (paras 66-68) and Fung Siu Ling v Prosperity Land Estate Management Limited DCPI417/2006, DHCJ Stanley Chan (as he then was) (unreported, 21 November 2007) paras 13-17 (concerning a trip and fall on the kerb at a building entrance), but the factual circumstances were quite different from the present case [131] [2000] 3 HKC 350, 356-357 [132] HCPI19/2013, DHCJ Paul Lam SC (unreported, 1 April 2015) para 29 [133] English translation is “Kwan Sir, a new year has arrived. I sincerely wish you and your family good health and warm fortune. From this new year onwards, I will keep my promise to put sincerity in the first place. Although it would be difficult for my intelligence and my learning ability to have clear improvement quickly. I will try my best for all the reasons! Happy New Year!” [134] Kwan denied that (a) Chau had called and told him about P’s resignation so P came from Chau to see him about the resignation, (b) by this stage he knew he had already pushed P to resign and leave the College, (c) when P approached him she did not resign voluntarily, (d) since Chau had already called him before he met P, he knew she was going to resign, so he dealt with the administrative matters in a hurry, (e) the final Resignation Letter was created/written by P in his presence, (f) P initially wrote a resignation letter in which she cited “health reasons”, but he told her it was not good enough and it would be for her own good to write “due to personal reasons”, (g) he took P to a printing room to get her to write another letter of resignation in his presence, and (h) after the Resignation Letter was created he tore up that first one in front of P [135] the English translation is “I have never come across any inspector like you among the few classes I have taught” [136] “I am willing to make a statement to the Police. The statement I am about to make is true to the best of my knowledge and belief and I make it knowing that if I wilfully state anything which I know to be false or do not believe to be true, I may be liable to prosecution for a criminal offence.” [137] see footnote 136 above [138] in the Chau 2nd WStmt, Chau explained that the passing out standards for PIs never changed for anyone, no matter how special the circumstances were, and it was Chau’s duty to ensure all PIs who passed out must possess the requisite standard of skills required [139] under cross-examination, Chau denied (a) because he knew that if P was indexed as a HIO it would entail a lot of hassle involving the medical board etc, so prior to 3 January 2014 he and Kwan had communicated about Chau’s plans to push P out from the College, and on 3 January 2014 when Kwan briefed him they had further discussion about Chau’s plan to push P out, so (b) when Chau met P on 3 January 2014 Chau (who knew P had a real knee injury/problem) accused her of feigning her injury by telling her other police officers had seen she had been walking very fast when she was alone, implying that she lied about her injury, questioned P whether she had integrity, and gave her 2 options of either resigning voluntarily immediately or staying with HKPF to be strictly investigated about whether or not she was feigning her injuries, (c) P was scared, started to cry and told Chau at the interview she would resign, (d) Chau then telephoned Kwan whilst P was still at his office and told Kwan to the effect P had resigned and “go sort out the paperwork”, (e) Chau told P that Kwan would handle her resignation and she was to go and see Kwan, which meant (f) Chau then knew the resignation process would happen next and he effectively washed his hands of P to leave Kwan to deal with all administrative aspects, (g) all along P respected/trusted Chau and Kwan, but Chau breached such trust by bullying her and casting doubt on her character, so at the end of the day P did not put up a fight and she tendered her resignation as a result of pressure applied by both Chau and Kwan, and (h) Chau never offered P any protection/accommodation, and instead got rid of P whom he regarded as a problem [140] such as handouts, police notebooks and other equipment distributed to her by the HKPF [141] [2020] 5 HKLRD 170 [142] 34th ed Vol 1 para 27-048 at pp 2008-2009 [143] [1992] IRLR 156 [144] [2011] IRLR 985 [145] see para 32 of the Kwan 2nd WStmt and para 53 of HQO12/11 [146] presumably OSH support team under HKPF’s Personnel Wing [147] force welfare officer of the Welfare Services Group of the Personnel Services and Staff Relations Branch under HKPF’s Personnel Wing (see paras 60-61 of HQO12/11) [148] Kwan explained there were 3 levels of OSH incidents that require reporting (and classification was usually based on the length of sick leave required), and only level 3 incidents (fatal incidents) required detailed reporting and evaluation [149] I do not accept the accuracy of such description of the Accident which was probably what Kwan learned shortly after the Accident from a PI of PI566 (who could have been the squad prefect but Kwan could not recall) that P accidentally tripped and fell on the Staircase (see paras 598(b) and 801 above) [150] CT was done on 18 February 2014 (see report dated 24 February 2014 by UCH’s department of radiology – G/939) [151] the diagnosis noted were “[recurrent] dislocation of left patella (Medial Patellofemoral Ligament, MPFL tear with osteochondral fragment)”, “MPFL reconstruction done on 9-5-2014” and “Synovectomy of left knee and manipulation under anaesthetic (MUA) of joint adhesions on 24-11-2014” [152] including “[magnetopulse], ice, electrical stimulation to left quadriceps muscle, ultrasound, laser, lower limbs mobilization exercise, stretching exercise and strengthening exercise, walking exercise, balance training and functional training” [153] P complained (a) there was intermittent pain over the antero-medial aspect of left knee as if there was pin pricking inside, but no pain at rest, (b) standing for 45 minutes or walking for 1 hour would provoke pain, (c) running would also provoke pain (eg running for about 10 minutes during physiotherapy provoked pain in the left knee), and (d) she required painkillers issued by the orthopaedic clinic about 2 times a month on average [154] eg (a) P had difficulty kneeling, running or walking quickly, (b) her knee was painful when the weather was bad eg when it was raining, (c) her knee was often stiff and painful in the morning upon waking up, (d) she had frequent headaches, (e) she had nausea and abdominal discomfort with belching, and (f) she saw eye floaters occasionally, but was told by an ophthalmologist that there was no treatment available [155] (a) her mood remained persistently low, and she did not want to meet her friends and did not want to be reminded of her time with HKPF, and she was sad even when she saw HKPF’s recruitment posters, (b) her sleep had improved so she no longer needed sleeping pills, but she still had difficulty falling asleep and would wake up feeling tired, so she would force herself to go to bed at 1:00am and get up at 7:30am, and her energy became low easily all the time, (c) she had a poor appetite without weight loss, ie around 50-something kgs when she was with HKPF and 64kgs then, (d) her concentration was poor and she had difficulty focusing at work, so her work speed was slow and she often left work 2 hours later than other colleagues, (e) she had fleeting suicidal thoughts when she was under stress but had no plans to carry out any acts, and (f) she avoided looking at the wound on her knee as it would remind her of the Accident, and she would avoid wearing clothes that revealed her knees [156] (a) she worked Monday to Friday and would leave work around 8:00pm, 2 hours after everybody else because she was slow in her work, (b) after work on weekdays she had no other activities as she was too tired to do anything else, (c) on weekends she mainly stayed at home and would sometimes go to church with some friends on Sunday, (d) she previously did volunteer work but stopped in the recent months, (e) she did not do any sports, (f) she took psychiatric medications every day (Wellbutrin XL 300mg daily, Pristiq 100mg daily and Concerta 54mg daily), (g) she attended follow-ups with her private psychiatrist every 6 weeks, but due to financial reasons she was referred to public sector psychiatry clinic and her then upcoming 1st appointment would be at Yung Fung Shee Psychiatric Centre in August 2018 [157] (a) she no longer had any long-term plans and felt she had wasted 5 years of her life when many of her friends were well established in their jobs and had gotten married, but she just started working and was still single, (b) she has not been in a relationship since the Accident, and she avoided an ex-classmate at the College who was fond of her as she felt undeserving of other people’s love, and felt unable to take care of children due to her knee problem, eg she could not kneel down and could not run after the children, and she avoided attending others’ wedding invitations, (c) she had not decided whether to continue her juris doctor programme as her poor academic results in the 1st semester had already barred her from entry into the PCLL programme which was a prerequisite for becoming a lawyer [158] (a) she could not squat for prolonged periods of time, (b) she could not wear tight-fitting trousers, (c) an unsightly scar was left at her left knee (and she must wear long trousers/skirts to cover it to avoid herself or others from seeing that scar), (d) lack of appetite, (e) occasional pain at the knee joint under poorer weather conditions, such as rainy days, (f) occasional stiffness and pain at the knee joint when she woke up in the morning, (g) frequent headache (h) nausea, discomfort in the abdomen during hiccups, and (i) occasionally seeing black dots (floaters) floating in front of her eyes [159] (a) constant bad mood, unwilling to contact friends, unwilling to recall the days in the College, seeing HKPF’s recruitment advertisements made her unhappy, (b) difficulty falling asleep at night, tired when waking up in the morning, had to force herself to go to bed not later than 1:00am at night, but as she had to wake up at 7:30am her physical strength dropped quickly, (c) lack of appetite, (d) difficulty in concentrating, could not focus on her work so she had low work efficiency and always needed to work overtime, (e) when under stress she would have suicidal thoughts, but they were usually fleeting thoughts with no plan to put them into action, and (f) she would try to prevent herself/others from seeing the wound on her left knee so as to prevent herself from remembering the Accident [160] (a) 3cm x 1cm scar over the left anteromedial patella that was well-healed with mild hypertrophy and mild pigmentation, and was mildly tender on palpation, (b) 4cm scar over the left medial proximal tibia with mild hypertrophy at the distal part of the scar, mild numbness and decreased sensation on palpation, (c) 4 stab wound scars around the left knee which were well-healed, and (d) tenderness on palpation over the left medial patella and medial tibiofemoral joint line but had no effusion in the knee [161] although P was upset, cried and sighed when she described to the Psy Experts about (a) being pressed by Kwan/Chau to sign the Resignation Letter / 3/1/14 Stmt and to quit the College, (b) her feelings of ten thousand arrows piercing her heart after being asked to quit the College and her avoidance of telling others her feelings, and (c) her inability to complete the Course at the College despite her wish, D was not liable for the alleged post-Accident events under Scenario 2 [162] but I have found that P’s left femoral sulcus was almost flattened, and such shape would not change after the 1st/2nd Surgeries (see Part V(e) above) [163] [1998] 2 HKLRD 958 [164] HCPI62/2010 (unreported, 11 May 2011) para 71 [165] eg pain, suffering and loss of amenities, loss of congenial employment, special damages, and pre-trial loss of earnings [166] HCPI399/2001, Waung J (unreported, 15 February 2007) (upheld on appeal in CACV304/2007 (unreported, 16 April 2008)) which held that the plaintiff had pre-existing back pain and pre-existing anxiety/panic disorders such that he would have problems with his back even without the accident, but such problem both before and after the accident was not serious; the slight disability affecting the plaintiff’s daily life/work was mostly attributable to the pre-existing symptomatic condition and not due to the accident; the learned judge also found that once the litigation was over the plaintiff should recover from his adjustment disorder problem which was really pre-existing; the case fell within the category 3 of the Chan Kam Hoi categories, ie the condition would have occurred at some stage in any event, and a 60% discount was made to the award for pain, suffering and loss of amenities [167] HCPI420/2014, DHCJ Cooney SC (unreported, 28 July 2017) which held that the plaintiff had neck pain and adjustment disorder before the accident as a result of a previous accident and that the whilst the possibility of another accident was small, the possibility of the plaintiff’s neck pain naturally deteriorating could not be said to be small, slow or mild; the court preferred the opinion of the defendant’s orthopaedic expert that the plaintiff’s pre-existing condition fell into category 3 of the Chan Kam Hoi categories and the medical evidence showed that her pre-existing condition had deteriorated before the accident as she was referred to an orthopaedic clinic for specialist treatment; thus the plaintiff’s condition would have deteriorated to her present condition in any event although there was no evidence as to when it would have occurred, but the accident aggravated and accelerated the deterioration; so the court considered it appropriate to impose 40% reduction for the plaintiff’s pre-existing condition [168] absence of family history and past history of mental illness, presence of normal pre-morbid personality, motivation to return to work and to return to study, and improvement of psychiatric symptoms with treatment [169] persisting physical disabilities, limitation in doing physical exercise as before the Accident, loss of the opportunity to be a police officer, and negative experience at the College associated with P being forced to quit HKPF [170] (a) Lee Kam Lin v Full Wise Limited trading as Fishing Bay Restaurant DCPI2354/2014, Master J Chow (unreported, 27 November 2015) in which the plaintiff suffered a work injury when her right knee was hit by the handle of an electric food mixing machine and she felt pain in her right knee; she continued to suffer persistent pain and it was later discovered by MRI she suffered from grade 3 tear of posterior horn of medial meniscus; she was given conservative treatment with anti-inflammatory drug (without need for surgery); the learned master found 1 year’s sick leave was reasonable and the plaintiff would have difficulty in returning to her pre-accident job as assistant in a restaurant and would need to take up sedentary jobs; damages for PSLA were awarded in the sum of $230,000 for both knee and psychiatric injuries, and (b) Chan Kwok Kuen v Actionsports International Limited DCPI1985/2013, DDJ K C Chan (unreported, 30 April 2019) in which the plaintiff, a “Junior Sports sales/project trainee”, injured his left knee when he and others pushed a barrel; he was in a position with right knee bent and left knee slightly bent when he heard a click in his left knee and intense pain as he tried to push by twisting his body clockwise; the plaintiff had no fracture but suffered a complex tear involving the anterior horn, body and posterior horn of the medial meniscus and a complete tear of the ACL close to the femoral insertion; the plaintiff then had a reconstruction operation and was hospitalised for 5 days before he was discharged on a pair of crutches followed by 31 sessions of physiotherapy; the left knee was in satisfactory condition in that there was good stability, full range of movement and good muscle power but there was residual wasting of left lower limb and sense of uneasiness with jogging, difficulty in full squat, walking downstairs and playing football; the plaintiff had 10 months’ sick leave and could resume his pre-accident work; there were no psychiatric issues; damages for PSLA were awarded in the sum of $250,000 [171] (a) Cheung Mau Fa v Regent Construction Company Limited DCPI2275/2014 (unreported, 29 March 2018) in which a labourer at a construction site suffered a fall from height and suffered sprain of ankle without fracture or dislocation and subsequently suffered psychiatric issues with impression of severe pain despite her ankle condition was satisfactory; the court found the plaintiff exaggerated her pain and her subjective complaints were contradicted by surveillance evidence that showed she had no difficulty in walking unaided and no instability in either ankle; in short, the plaintiff suffered minor soft tissue injury without need for surgery for which appropriate sick leave would have been 3 months, and she could have returned to work after another 3 months; damages for PSLA were awarded in the sum of $150,000, and (b) Tsang Yee Man v Chanel Hong Kong Limited formerly known as Chanel Limited HCPI918/2015, Master Leong (as he then was) (unreported, 23 June 2017) in which the folding chair on which the plaintiff sat broke and collapsed and she fell to the ground with alleged pain and swelling of left foot, ankle and heel; the learned master accepted expert orthopaedic evidence that soft tissue sprain injury was caused by direct trauma at the time of the accident with good if not excellent prognosis, but plantar fasciitis could not have been caused by the mechanism of the injury at the accident so it was a coincidental and co-existing disease; the learned master also accepted psychiatric expert evidence that the plaintiff could have developed symptoms of adjustment disorder due to ankle injury but it was likely that she only suffered mild residual psychiatric symptoms; appropriate sick leave would be 5-6 months; damages for PSLA were awarded in the sum of $150,000 [172] both “Hui” and “Wong” were PIs in the same squad as P at the material time and were still employed by HKPF [173] according to the letter dated 17 November 2020 by DoJ to P’s solicitors (E/742A), Hui was in the same squad (PI566) as P, but due to unsatisfactory motor fitness test results at both intermediate and final stages of his PI training at PI566, he was transferred to PI570 and he passed out on completion with that squad [174] according to the letter dated 17 November 2020 by DoJ to P’s solicitors (E/742A), “Wong” trained with PI567 within the same intake in 2013 and completed PI training as scheduled [175] HCPI914/2015 (unreported 14 December 2022) paras 320-323 [176] Ms Chao suggested that the fact P received an oral offer from Bamboos Health Care Holdings Limited for the position of a management trainee (see para 867 above) accorded with her submissions that appropriate sick leave should only be up to 12 July 2014 [177] eg participated in the “Hong Kong Outstanding Youths Volunteers Association” in 2016-2017, ran a campaign for the position of chairman of such association, became the chairperson in 2017, and led/managed a team for volunteer activities when she was fit and should look for proper full-time employment [178] (a) part-time clerk for Hang Lung Properties Limited on 22 September 2016, (b) part-time station assistant for MTR on 26 October 2016, (c) temporary administrative asssitant for HKEAA on 1 November 2016, (d) temporary customer service officer for Hong Kong Housing Society on 11 November 2016, (e) temporary homework tutorial class teacher for Seedling Education Centre on 15 November 2016, (f) part-time corporate affairs assistant for The Hong Kong and China Gas Company Limited on 16 November 2016, (g) part-time stocktaker for Pricerite Stores Limited on 24 November 2016, and (h) part-time clerk for Sino-US Environmental Regeneration Resource Ltd on 7 January 2017 [179] ie Monday 07:30-18:00, Tuesday 07:30-13:00, Thursday 11:00-18:00 and Friday 06:00-12:00 [180] P only provided Tuesday, Wednesday and Thursday as her available working days, and only ticked January, February, March, April, November and December as available working months, which Ms Chao submitted would mean she had half the week and half a year for herself [181] (a) P had full-time job with Cathay Pacific before she joined the College but after 1 month she chose to become a PI, (b) after P found employment as CR on contract term from 9 June to 8 December 2017, she chose to resign on giving 1 month’s notice just a little after 1 month on 18 August 2017 to read the juris doctor programme, and (c) after studying the juris doctor programme for a few months, she chose to suspend the programme and work as an ALOII at LD [182] see Yeung Lai Ping v Secretary for Justice HCPI833/2002, Bharwaney J (unreported, 1 April 2019) para 169 [183] in Li Man Chi v Or Chun Kit [2017] 2 HKC 1, after her accident the plaintiff who was a kindergarten schoolteacher sent many job applications without success until she found a job as a teaching assistant doing mostly clerical work; Seagroatt J found she had done her best to mitigate her loss, and this was upheld by the Court of Appeal in finding it was not unreasonable for the plaintiff to prefer working in a school environment having regard to her love of children, the training she had received in child education and the fact that she had been working in schools for 11 years before the accident; the Court of Appeal agreed with Seagroatt J’s observations in relation to the plaintiff’s return to work as teaching assistant before expiry of the sick leave period that “[her] return to work before her sick leave expired (some two months hence) reflects this lady’s keenness to immerse herself in work as close to her area of skill and professional commitment as possible. The nature of the work fall someway short of what she wanted and for which she was trained, and of course, of the level of remuneration which she had previously enjoyed. But her physical injuries necessarily imposed limitations on the extent to which she could be involved in the physical aspects of kindergarten education. New [sic] employed as a teaching assistant at less than half the salary she had enjoyed before the accident, she still had to have time off for medical treatment and check-ups.” (pages 12-13) [184] in support Ms Chao cited Fung Tak Yau v Chow Wah Tim trading as Chun Wah Transportation Company & anor HCPI973/2006, Mr Recorder J Fok SC (as he then was) (unreported, 13 May 2008) in which the plaintiff’s claim failed, but in discussing the issue of quantum on the assumption that liability was established, it was said (a) the plaintiff’s employment as cargo handler was on probationary basis because even though he had 10 years’ experience as cargo handler he ceased such work until he resumed 7-8 days before the accident (para 78), (b) the plaintiff’s employment was casual in nature and he was employed on that day because there was a particularly heavy workload (para 79), (c) the 1st defendant would not have employed the plaintiff had it been aware that the plaintiff had a previous hand injury (para 79), (d) there was uncertainty as to the plaintiff’s ability to obtain regular employment as a cargo handler due to previous injury and long absence from cargo handling work which had to be reflected in his notional monthly earnings for calculating his pre-trial loss of earnings during the appropriate sick leave period (paras 80-85), but in my view these were fact-sensitive findings and each case had to be decided on its own facts [185] in Wong Tsz Ho (Minor, by his mother and next friend Chen Guifeng) v Cheng Hoi Min trading as Kwong Yip Electric Metal Co & anor HCPI52/2014, Master Roy Yu (unreported, 11 September 2015), the learned master considered it was not appropriate to make an award for loss of congenial employment because there was no evidence what job the plaintiff hoped for and could not achieve because of his injuries, and “no evidence that the plaintiff had to give up a job that he enjoyed” since on the facts he was 6 years old at the time of the accident and had not started working (paras 2 and 68-70), and in Hung Sau Fung v Lai Ping Wai [2012] HKLRD 1, it was held that whilst the plaintiff apprentice vehicle mechanic always had a passion for cars and particularly enjoyed working as a vehicle mechanic, his length of service in this field (as an apprentice serving for less than 2 months) was insufficient to support an additional award for damages for loss of congenial employment, especially when he only entered this field some 6 years after he entered into the labour market [186] [2018] 4 HKC 1 [187] [2007] All ER (D) 258 (Jul) at para 21 [188] [2012] 5 HKLRD 589, in which the plaintiff (seaman for 22 years and deputy captain of a barge) could not return to his post as a result of his injuries, and since his duties had been replaced, he accepted a position from his employer as watchman of scrap vessels on land and later as chief mate on a tug boat performing light duties (but depending on his physical condition his employer would not rule out deploying him as a watchmen with lower salary), and given the accident and his post-accident condition the plaintiff would not be considered for any promotion, so he could not have been promoted to captain of the barge [189] I am unable to draw much assistance from Pak Sai Ming cited by Ms Chao as its facts were quite different in that after the sick leave period the plaintiff tried to return to work as a fitness manager but the defendant employer did not give him work, and he agreed to termination of his employment with the defendant employer paying him a lump sum (even though he did not really want to give up the job) (paras 62 and 81), but it was held that he failure to return to a fitness training job from September 2014 to May 2015 (when he could have done so) was due to his own malingering (paras 81-82) [190] DCPI1051/2009, HH Judge Chow (unreported, 29 October 2010), and in that casethe plaintiff (senior PC) suffered a traffic accident whilst riding a police motorcycle; he was thrown off from the motorcycle, and had to walk on a crutch for more than a year because of residual back and right hip pain (para 17); he was posted to indoor clerical duties after sick leave, could not carry a gun and other heavy accessories, and was looked down upon by his colleagues (para 23); he worked as police officer since age of 18 (para 15), but lost a job that he enjoyed, so $100,000 was awarded for loss of congenial employment (para 23) [191] HCPI485/2001, Sakhrani J (unreported, 13 April 2010), and in that case the plaintiff was a PC having been recruited when he was 21 years old (para 1); he suffered work injury from electric shock (para 4); Sakhrani J was satisfied that the plaintiff was unable to be deployed to various operational postings in HKPF due to his injuries, and his requests for transfers had not been met over the years, so he was substantially confined to indoor duties in the report room, which did not providehim with the same job satisfaction as he would have enjoyed with operational and outdoor postings; he was awarded $100,000 for loss of congenial employment (para 93) [192] HCPI489/2008, Master J Wong (unreported, 12 January 2010, and in that case the plaintiff PC (who had been in secure employment as such with HKPF for more than 10 years – para 25) suffered an accident whilst riding his police motorcycle; he suffered permanent injuries to his eyes which would deprive him to certain extent and had deprived him of chances of performing some posts requiring more physical strength; he was awarded $120,000 for loss of congenial employment (para 26) [193] [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54, Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575, Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture (a firm) & anor [2000] 1 HKLRD 796, 802-802 and Wong Yeung Chui Yee v Citybase Property Management Limited & ors DCPI1522/2016, DDJ David Chan (unreported, 28 December 2020) paras 297-300) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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