So Sin Ying v. J. v. Fitness Ltd
Read the full judgment text of HCPI 1023/2014 on BabelCite. This High Court CFI judgment was delivered on 7 July 2023.
1. The plaintiff was a former competing fitness athlete and personal trainer. She claims against the defendant, her then employer, for injury sustained in the course of and arising out of one of her personal training sessions with her client back in 2012. Interlocutory judgment on liability has been entered against the defendant. This is the assessment of damages.
Cited by 2 cases · Cites 18 cases
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HCPI 1023/2014 [2023] HKCFI 1792 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 1023 OF 2014 ________________________ BETWEEN
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________________________ JUDGMENT ________________________ 1.The plaintiff was a former competing fitness athlete and personal trainer. She claims against the defendant, her then employer, for injury sustained in the course of and arising out of one of her personal training sessions with her client back in 2012. Interlocutory judgment on liability has been entered against the defendant. This is the assessment of damages. BACKGROUND OF SO 2.The plaintiff (“So”) was born in Hong Kong on 10 June 1984 and was 28 years old at the time of the accident. Her life prior to the accident has always had to do with sports. So studied for the Higher Diploma in Sports Management at the Hong Kong Institute of Vocational Education, during which she also acquired qualifications for coaching in swimming, body fitness, first aid, life-saving, aerobic dancing and exercise ball. Meanwhile, she worked as a part-time fitness instructor. After graduation in 2008, So has worked as a physical education teacher for about 2 years. In 2011, she topped up her qualification by distance learning for a Bachelor’s degree in Sports Management from Sheffield Hallam University, and graduated with Second Upper Class Honours. 3.So excelled as a competing fitness athlete. Since starting training in bodybuilding and fitness in 2005, So has participated and received numerous awards in fitness competitions. She became a member of the Hong Kong Bodybuilding Team. In 2011, she reached championship level in the field of bodybuilding in Hong Kong and top positions outside Hong Kong. She ranked first at 全港健美錦標賽 (健體小姐163cm or below), 1st runner up in 港穗交流賽健體小姐錦標賽, 2nd runner up in亞洲健美錦標賽 and 華南地區健美錦標賽 (華南地區健體小姐163cm or below) as well as 5th in 中國健身公開系列賽. All those put So to No 1 in Hong Kong, No 3 in Asia and No 13 in the World in terms of ranking. She was a recipient of the Top 10 Hong Kong Outstanding Fitness Coach Award (全港十大傑出健身教練獎). 4.On 1 August 2011, So joined the defendant (“JV”) as a personal trainer (Level 3). At the time JV operated a chain of fitness centres in Hong Kong under the brand of “California Fitness”. As a personal trainer of JV, So’s major duties included providing personal training sessions to clients, instructing clients on managing the training equipment, designing personalized exercise programmes and promoting the sale of personal training sessions at its centre. After a month, So was promoted to trainer (Level 4). THE ACCIDENT 5.The accident in question happened in the California Fitness centre at Tuen Mun Town Plaza in the morning of 7 August 2012. So was then attending to her client in a personal training session. At the time, So was lying on an exercise mat on the floor, demonstrating stretching to her client who was standing in her front. At one point, a nearby personal trainer somehow caused a fit ball to be thrown towards her direction. The ball bounced against the mirror behind So and rebound towards her client. To guard her client, So reacted by stretching out her left hand intending to deflect the incoming ball. During such motion, So heard a 'click' on the left side of her neck and trapezius region. So immediately felt pain in her neck and trapezius region followed by numbness over her left upper limb. So felt unable to get up from her lying position. So remained lying on the mat for over an hour until her manager came, and the manager together with So’s client helped her up from the floor. 6.Upon the suggestion of the manager, So went to see a physiotherapist at about 5 pm that day. After administering some manipulation for her, the physiotherapist advised her to see a doctor for an X-ray examination. So proceeded to consult a general medical practitioner, who prescribed for her some medication and booked an X-ray examination. 7.Due to severe pain later in the same evening, So did not wait but attended the Accident & Emergency Department of Tuen Mun Hospital where she was examined by a doctor and an X-ray examination was conducted. She was discharged with a neck brace and painkillers as well as referral for physiotherapy. 8.So has since attended numerous physiotherapy and occupational therapy sessions in both private and public sector. She also attended regular follow-up appointments at the Department of Orthopaedics & Traumatology clinic of North District Hospital. A cervical spine MRI was carried out on 26 September 2012. Intervertebral disc protrusion at C5 and C6/7 was detected. 9.In April 2013, nerve conduction test was conducted on the ulnar nerve. Besides consultations with neurologist and physiotherapist, So was also referred to consult psychiatrist for suspected depressive episode. 10.So began psychiatric and psychological treatment in July and October 2013 respectively. Psychological symptoms, alcohol abuse and self-harm in 2013 were recorded. 11.Besides consultation at the pain clinic, So has also sought Chinese bonesetter (‘tui-na’) treatment between 2013 and 2014. 12.Sick leave given to So lasted since the accident until the end of October 2016. CLAIMS 13.So commenced legal proceedings in 2014 for compensation against JV for her injury sustained at work. Apart from filing her employees’ compensation claim (DCEC 787/2014), So commenced the present action for damages under the common law in October 2014. 14.So obtained interlocutory judgment on liability against JV on 1 December 2014 for damages to be assessed. In the same year, JV was noted to be closing down its California Fitness centres. JV was eventually wound up in July 2016. INJURIES AND COMPLAINTS 15.So is left-hand dominant. She claims that the injury left her with the following residual disabilities:
16.So claims that due to her injury and residual disabilities, she became unable to resume her pre-accident job as a personal fitness trainer and fitness competition. So resumed working in early 2015 and intermittently at various jobs. As at the date of the present hearing, So was working as a fitness club manager. 17.So has also stopped participating in fitness competition. Since 2014, So has participated in such competitions as an adjudicator instead. In 2016, she resigned from the Hong Kong Bodybuilding Team. THE DEFENCE 18.JV contends that So suffered a simple neck sprain. By pleading, it runs a positive case that So was and is a malingerer who has at all material times exaggerated her injuries and symptoms. It relies on the following matters:
19.JV disputes that So was unable to manage the pre-accident job as a personal trainer due to her alleged disabilities. WITNESSES 20.Besides herself, So called the following witnesses:
21.Another witness, Ms Yeung Ka Yin (“Yeung”), was not called, and therefore her witness statement is disregarded. 22.JV called no witness. 23.The joint orthopaedic experts’ report of Dr Chun Siu Yeung (engaged on behalf of JV) and Dr Lee Po Chin (engaged on behalf of So) was admitted into evidence without their being called. The makers of the joint psychiatric expert report, namely Dr Tsang Fan Kwong (engaged on behalf of So) and Dr Yu Wai Tak Peter (engaged on behalf of JV), were called to testify on the basis of an agreed list of issues for such purpose. ORTHOPAEDIC EXPERT EVIDENCE 24.In early November 2012, So was first examined by Dr Chun who rendered his report dated 29 November 2012. Amongst others, Dr Chun made the following remarks:
25.So was examined again by Dr Chun, but this time with Dr Lee, in early August 2015. The experts were also provided with the photographs depicting So on stage in the bodybuilding/fitness championship competition in Guangzhou on 22 and 23 September 2012, ie 1.5 months after the So’s injury, mentioned above. They produced their joint expert report dated 17 October 2015. 26.The experts found that the site of So’s pain was at her left trapezius, left scapula and inter-scapular region. No swelling, deformity, girdle muscle wasting or muscle spasm was detected. Tenderness and guarding were reported at C6/7 to T4-6 and C6-9 para-spinal region with the left side more serious than the right side. Tendon reflex was normally bilaterally. Coarse tremor at the left hand below the wrist was reported. 27.From the photographs depicting So on stage in the bodybuilding/fitness competition on 22-23 September 2012, Dr Chun observed that she demonstrated good muscle bulk and contraction while Dr Lee observed that the lack of muscle wasting and neck pain at the time allowed her to perform the various movements with the muscle outline and bulk at the competition depicted in the photographs. 28.Dr Chun found no objective evidence that the severe pain and tremor of the left hand had organic basis. Nor was there clinical and neurological evidence to support the suspected CRPS. Dr Chun maintained his view that So has expanded her symptoms. 29.Dr Lee opined that the mechanism of injury is consistent with neck sprain. The desiccation of the disc with C5/6 and C6/7 disc protrusion shown at the MRI on 26 September 2012 was pre-existing changes. The disc prolapse can be secondary to degeneration, but injury might have contributed to the final protrusion or it had aggravated a pre-existing protrusion and precipitated the pain. The injury could also have precipitated radicular symptoms because of stretching or irritation of the nerve root. Some mild form of complex regional pain syndrome (CRPS) which delayed recovery could not be excluded, and complication by psychosomatic factor might perpetrate the pain symptoms. Whilst he also noted that the tremor in hand could not be explained by MRI findings, he opined that it was common in persons with anxiety, and therefore did not necessarily connote exaggeration. 30.Dr Lee opined that So would experience some pain during extreme neck movement and weight lifting or strenuous exertion using the upper limb. He assessed So to be suffering from 5% impairment of her person. Psychiatric assessment was recommended. 31.Before leaving this section, it should be mentioned that whilst Dr Chun opined that So would have been affected by her pre-existing spinal disc condition in the natural course of her life even in the absence of the injury, JV opted not to take issue as to whether the pre-existing degeneration entails discount on the quantum at the trial. Such stance was formally recorded in the order of the court dated 30 September 2019. PSYCHIATRIC EXPERT OPINION 32.So was examined by Dr Tsang and Dr Yu on 14 April 2016, which led to their joint report dated 18 July 2016. 33.The psychiatric experts noted from the medical records that when So started psychiatric treatment in July 2013, So was faced with her problems which she addressed by resorting to alcohol abuse. The Mental State Examination (“MSE”) diagnosis was moderate depressive episode. After treatment, she has had certain improvement by early 2015. MSE diagnosis was that she was euthymic (which this court understands to mean certain stable mental state or mood, neither manic nor depressive but not quite the state of generally healthy people). 34.Dr Tsang tended to agree with the treating doctors that So has experienced a major depressive episode of mild to moderate degree, PTSD with some residual symptoms and alcohol abuse. Dr Tsang opined that So has a genetic disposition towards depression, which was triggered by the injury and perpetuated by her physical conditions. Alcohol abuse, which she resorted to, was likely a problem indirectly related to the injury. A series of subsequent events complicated the interactive psychosocial stressors for recurrence of depression up to her state as at the time of the joint report. They included injury at work 4 months after working as a veterinary assistant, which put her on sick leave for a year since late July 2015, expulsion from home by her elder half-brother, the death of her pet cat and dog as well as her financial circumstances in 2016. 35.In Dr Tsang’s opinion, other than the mild to moderate residual mental symptoms of So, which affected her mood and gave rise to worries, So was totally independent in self-care and capable of most functions. The prognosis of the mood problem was guarded. Sick leave for 6 months was considered to be reasonable. Impairment of person was assessed to be 20%, but half of that was attributable to the factors subsequent and unrelated to the injury mentioned above. Dr Tsang considered that So was unlikely fit to return to her previous job as a personal fitness trainer. 36.Dr Yu held a significantly different view from that of Dr Tsang. He did not believe that a neck sprain would likely lead to the physical symptoms complained about by So at the time of the accident. He referred to the opinion of Dr Chun, and considered that where the physical symptoms have been exaggerated, the reported subsequent resultant mental distress would likewise have been exaggerated. Dr Yu observed that So was on sick leave due to different injuries at work most of the time since November 2009. He opined that the injury complained about by So did not qualify as a traumatic event under the criterion for diagnosis of PTSD. He found the complaint by So to be likely the result of overacting. He found So to be incredible. 37.The only problem that Dr Yu found So to have had was alcohol abuse, and her psychiatric complaints such as depressed mood, anorexia, dyspepsia and insomnia were associated features of such abuse. Her alcohol abuse, Dr Yu opined, was pre-existing and not attributable to the accident. As such, the alcohol abuse was part and parcel of her mood problems that needed no separate assessment for impairment. There should be no impairment or loss of earning capacity. Nor should sick leave be given on account of the psychiatric complaint. DISCUSSION 38.So was questioned extensively in respect of how the accident happened and its immediate aftermath, including the severity of pain she allegedly felt and her alleged immobility on the floor for over an hour. The pleaded case of JV summarised above refers. It did not call any witness to testify in respect of the accident and its immediate aftermath, notwithstanding the identification of the other personal trainer involved at the time. 39.The corroborative evidence in respect of the accident and its immediate aftermath came in the form of So’s own injury statement to JV and a record of interview of So’ client who witnessed the accident. They were made 1 to 2 months after the accident. Nothing much may be said about whether or not So’s client could have been called to testify. So’s explanation of her attempt to contact her client aside, the fact was that JV (though the loss adjuster which was responsible for the interview record) always possessed the contact details of So’s client and could have secured her attendance as a witness if it were so minded. 40.JV relies on the records disclosed by So, and suggests that her training did not stop after the injury. However, the same, I find, were adequately explained by So both in her witness statements and in court, which was largely corroborated by Wong, coach of the Hong Kong Bodybuilding Team at the material time. 41.The evidence reveals that while So then remained as a member of the Hong Kong Bodybuilding Team after the injury, she would be bound to comply with the rules and arrangements in order to maintain her qualification for her place in the team. So’s category was fitness, not bodybuilding. Training in such category consisted of the dynamic and static aspects. The former was mainly physical training while the latter consists of theory and diet control as well as aesthetics training such as posture design, hair-setting and makeup. So did not resume physical training after the injury. Wong confirmed that. 42.The records of attendance for training were partly explained with reference to the measures prescribed by the Hong Kong Anti-doping Committee (“HKADC”). Essentially, regular records were required to be filed with HKADC whereby the whereabout of the athletes could be ascertained for random ant-doping tests. Wong was largely responsible for filling out the records for So in accordance with his understanding of So’s circumstances. The key is that he could confirm from his personal knowledge that the training attendance shown by the records did not represent that So actually undertook physical training. 43.The evidence of So and Wong in the above respects, I find, were intact despite cross examination. I accept what they said in these respects as facts. 44.That So not only participated but managed to rank top in the bodybuilding/fitness competition held at Guangzhou just 1.5 months after the injury fairly calls for explanation. According to So and Wong, she attended the competition, notwithstanding the fairly recent injury, mainly to meet the expectation of her presence as a key member of the Hong Kong Bodybuilding Team and a world ranking contestant in the event. Wong explained that So was an experienced contestant representing Hong Kong, and even the poster of the event had her photograph on it. In view of her post-injury condition, So and Wong explained that she had to consciously avoid over-exerting her left hand and the left side of her back. She would put the neck brace back on and rest between intervals during the competition. At the end, she managed to achieve her final result in the competition due to the fact that a lot of contestants chose to avoid competing with So, ending up with only 3 contestants in her category. Amongst them, So managed to win herself a place but only barely escaping from ranking bottom by the difference of 1 point. 45.The photographs depicting So’s postures on the stage at the competition were referred to during cross examination. There is inherent limitation to observation by layman, including this court, of the muscle bulk and performance depicted in the photographs. It does not appeal to this court that the pictures per se amount to any obvious view on the issue by any objective standard. Cross examination with reference to what the photographs depicted could not be overdone, unless the specific line of questioning is backed by actual expert analysis. 46.As mentioned, the orthopaedic experts did analyse the posture and presentation of muscle of So as depicted in the photographs. Dr Chun observed good muscle bulk and contraction while Dr Lee observed that her condition at the time allowed her to perform various movements exhibited and hence the muscle outline and bulk as depicted. The reference to muscle wasting would come into play for this purpose only if the medical expert evidence suggested that such wasting should have been apparent by then, which was 1.5 months after the injury. Dr Chun did not say that. In fact, there was no evidence of measurement of muscle wasting by then. Dr Lee effectively expressed no surprise that So managed to exhibit the muscle line and bulk at the time. 47.Considering the medical expert evidence in the light of the explanation of So and Wong, I find that the evidence in respect of her presentation in the fitness competition 1.5 months after the injury does not contradict or negative the existence and extent of injury alleged by So as a matter of fact. 48.In case of malingering, So would be faking her symptoms, knowing that they were false. Apart from neck pain, the complaints of So about the onset of numbness and weakness over her left upper limb 2-3 months after the injury as well as the doctor’s attention to them in the following 2 years were documented in some of the medical notes and reports. They also recorded her complaint about left hand tremor since early 2013 and the NCT conducted. 49.Regarding the orthopaedic expert evidence, what Dr Chun opined was that So has exaggerated the pain and symptoms and that he would not accept the suspected CRPS as explanation in view of the lack of support by the clinical and neurological evidence. Whilst Dr Lee suggested not to rule out CRPS as an explanation, he was acutely aware of possible psychosomatic factors in perpetuating the pain symptoms projected by So. Whilst he noted the lack of clinical explanation for the hand tremor, Dr Lee considered that to be a feature of common anxiety instead of exaggeration. Hence his recommendation for psychiatric assessment. 50.Exaggeration of symptoms comes to be considered as a different concept from malingering. The spectrum of exaggeration exists between amplification of symptoms and pain which is explicable by the intervention of psychological elements consequential upon injury on the one hand and inexplicable and thus sheer exaggeration on the other hand. 51.Dr Tsang agreed with the treating doctors that So suffered from a major depressive episode of a moderate degree and PTSD. That, if accepted, tends to provide some basis for the suspected intervention of psychosomatic factors which could explain the symptoms and pain complained about by So. On the contrary, Dr Yu was of the view that So suffered from none of those. Obviously Dr Yu found So to be incredible. The significantly divergent opinion of the psychiatric experts entailed their attendance for cross examination. 52.The overriding duty of medical experts to the court by providing opinion in their disciplines in an independent, unbiased and impartial manner needs no introduction: see for instance Chinachem Charitable Foundation Ltd v Chan Chun Chuen & Anor HCAP 8/2007 (2 February 2010); Nawaz, Malik Shah v Bridgestone Aircarft Tire Company (Asia) Limited DCEC 555/2006 (6 November 2007). On behalf of So, counsel suggests that Dr Yu failed such duty in the present case. 53.Dr Yu dismissed the existence of genuine psychiatric symptoms recorded by So’s treating doctors. He found that her problem arose out of alcohol abuse, which was pre-existing and not attributable to the injury. Based on what he understood from Dr Chun’s assessment, Dr Yu categorised So’s complaint about her physical symptoms to be an exaggeration. In his opinion, it followed that her psychiatric complaint was likewise an exaggeration. 54.I can understand the basis for counsel’s criticism of Dr Yu’s evidence. 55.To begin with, the extent to which Dr Yu sought to say about the injury exceeded what the medical notes and reports of the treating doctors recorded as well as what Dr Chun sought to say. Dr Yu opined that pushing a fit ball away with one hand would unlikely hurt a child or elderly, and that So had to convince others that she was hurt. The innuendo was that So faked the injury or that he did not believe that So was injured as claimed. Expressing opinion, particularly in respect of factual matters outside the expertise of an expert, without regard to the undisputed reality is not expected. 56.Dr Yu expressed disbelief about So’s version that she felt numb and painful or was unable to move upon the accident by questioning her version of laying on the floor for an hour without summoning an ambulance. Such opinion on factual matters, particularly in the absence of all the evidence in respect of the relevant facts before him at the time, from a medical expert is also the least expected. 57.If ever Dr Yu were entitled as a psychiatric expert to form his own view of the credibility of the subject of examination for the purpose of coming to his expert opinion, the premise of his view of the matter indeed reflects incomplete, if not selective, understanding of the circumstances of So in the absence of all the relevant information. 58.First, Dr Yu admittedly did not possess background information about So’s achievements in her sports and her up-and-coming state of career development. He only relied on the information set out in the instructions to the experts and the interview of So during the joint examination. 59.Second, Dr Yu formed his view about the truthfulness of So’s complaint about hand tremor with reference to her handwriting on the patient registration form without either witnessing or giving an opportunity to So to explain how it was written. He somehow believed So did not need to use a neck brace, in view of her attendance at the fitness competition 1.5 months after the injury mentioned above. As mentioned, the contrary was true. He also referred to the lack of muscle wasting suffered by So at the time of the competition, which he admitted in court was nowhere mentioned in Dr Chun’s report, which he referred to. As mentioned, Dr Chun recorded no measurement was taken for ascertaining muscle wasting. 60.Third, Dr Yu relied on various other matters said to be suggesting a conscious pattern of So in obtaining sick leaves. She was said to have done so to enable her to train, which Dr Yu had to accept in his oral evidence that it was his mere speculation. He referred to her obtaining and use of sick leave for studying the top-up course, whilst it was stated in Dr Chun’s report, which he expressly referred to, that the course was taken by So only after her such sick leave. Dr Yu referred to a pattern of So reporting injuries at work both prior to and after the injury whereby she obtained sick leaves from time to time. However, he agreed in his evidence that he actually knew very little about the 2009 injury or her injury at work in 2015. For the latter, So was given not only sick leave but also employees’ compensation. 61.Fourth, no doubt Dr Yu, as he was entitled to, referred to Dr Chun’s opinion on the orthopaedic aspect of So’s injury and complaint. As mentioned, he did so by suggesting that as Dr Chun formed the view that So has exaggerated her symptoms, it followed that she had exaggerated her psychiatric symptoms. One doubts the medical basis for such inference, which Dr Yu did not insist in view of the relevant clarifications revealed before him at the trial. 62.In any event, the relevance of the orthopaedic expert observations for the purpose of the psychiatric assessment would have entailed the objective consideration of the former adduced by both sides’ experts. Dr Yu admittedly neglected to take into his consideration Dr Lee’s observations. 63.Fifth, the treating doctor’s notes and reports recorded, which So admitted, that she had resorted to alcohol to cope with her distress. However, Dr Yu opined that her alcohol abuse was pre-existing, and was not attributable to the injury in 2012. As pointed on behalf of So, there is no real evidence of alcohol abuse on her part prior to the injury. Such abuse was indeed unlikely, in view of not only her background as a competing fitness athlete but also her achievements in international competition and ranking. It should not take much to convince, and indeed it is the evidence, that any alcohol consumption pattern amounting to abuse would have been damaging to a professional and competing athlete in fitness. In court, Dr Yu insisted no more on his such opinion, and did not rule out the likelihood of the abuse as part of the aftermath of, and her circumstances since, the injury. 64.Against the medical evidence and expert evidence considered as a whole, the premise of Dr Yu’s assessment of So’s credibility unfortunately leaves this court with an impression that that somehow fell short of the impartiality and objectiveness expected of a psychiatric expert in the present case. The opinion of Dr Tsang is preferred. 65.Last, much was argued about whether the injury in 2012 resulted in any PTSD to So. The treating psychiatrists found the existence of such element, which Dr Tsang agreed. Together with the series of unfortunate events happened to So since 2016, Dr Tsang considered that there existed complicated interactive psychosocial stressors for the recurrence of depression in So. That said, Dr Tsang, as mentioned, acknowledged that these subsequent events and recent stressors since 2016 had no causal relationship with the injury. For that, Dr Tsang attributed only half of what So has suffered psychiatrically to the 2012 injury. 66.The Diagnostic and Statistical Manual of Mental Disorders (4th Ed) Text Revision (DSM-IV-TR) published by the American Psychiatric Association was applied. That Dr Yu in his evidence also made reference to the latest edition, ie DSM-V, would not alter the common ground that it was DSM-IV which the psychiatric experts agreed to adopt for the purpose of their assessment and joint report. 67.The experts disagreed as to whether the case of So qualifies as PTSD according to the DSM-IV criteria. Amongst the criteria, the subject must have experienced, witnessed or confronted with an event involving actual or threatened death or serious injury or threat to physical integrity of self or others. Dr Yu opined that the injury does not meet the criterion whereas Dr Tsang opined that the injury qualified as threat to the physical integrity of So in her circumstances. 68.In the cross examination, counsel for So brought up the case of Wong Chiu Wa v Ng Yuk Chun HCPI 258/1999 (16 November 2001) in which Dr Yu was one of the psychiatric experts. It was said that the approach in the assessment advocated by Dr Yu in that case was the opposite of that in the present case. It is noted that his evidence was not preferred by the court in that case. That caused counsel for JV to cite another case, Lai Sin Yan Elsie v TATA Communications (Hong Kong) Limited HCPI 1092/2015 (15 November 2019), in which Dr Yu also acted as one of the psychiatric experts and his expert opinion was preferred. 69.This court will refrain from indulging into relying on the above cases cited for the purpose of weighing the opinion of Dr Yu. Instead, the expert evidence will be assessed together with the other evidence in the circumstances of the present case. If anything, what is worth noting in both cases cited above is that the court in both cases was faced with convincing evidence of malingering on the part of the plaintiff and made findings of that accordingly. Such findings simply displaced much of the basis for the psychiatric expert’s opinion on the existence of PTSD in those cases. The circumstances surrounding the findings of malingering in those cases are far removed from the circumstances of the present case as discussed. For the same reason, the other cases cited to show how the court has considered the issue of PTSD were fact sensitive and of limited, if any, assistance. 70.A neck sprain probably may not appeal to anyone as a life threatening or serious injury. Conscious of that, Dr Tsang indeed considered the treating psychiatrists’ reports and conducted his own assessment with focus on the other alternative component of the criterion for PTSD, namely whether the event amounted to threat to the physical integrity of So in the circumstances. 71.It was in respect of such component of the criteria for PTSD that Dr Yu sought to refer to DSM-V in support of his interpretation of physical integrity of a person. This way, Dr Yu emphasized instances of sexual assault for the purpose of understanding threat to physical integrity of a person. It should however be noted that the criterion under DSM-IV indeed refers to traumatic events that are experienced directly to include violent personal assaults, of which sexual assault is one instance. Such diagnostic feature is expressly stated to be not exhaustive. 72.Whether diagnostic features qualifying as PTSD existed should be objectively assessed. Dr Yu did not dispute that in court. However, there is always a personal perspective in the subject’s apprehension of a threat. This Dr Tsang agreed and explained in court. As an instance, cut on one’s fingers may not appeal to a person as threat of serious injury or physical integrity of self but could be differently apprehended by a professional pianist. 73.In his evidence, Dr Tsang explained that a diagnosis of PTSD was made as So developed hypervigilance, re-enactment of the scene in day time or in dreams and avoidance behaviours soon after the 2012 injury. Her complaints of having fear and apprehension and having nightmares and a fear of people approaching her quickly, avoiding crowds and going out were documented in her medical notes and reports. As mentioned, So had resorted to alcohol abuse for release of emotion and inducement of sleep. She showed fear and apprehension during the joint examination. When faking of these symptoms as documented in the treating doctors’ notes and reports is ruled out as mentioned, there exists clinical basis capable of supporting the diagnosis of the existence of PTSD by the treating doctors and Dr Tsang. In this respect, Dr Yu’s opinion fails to impress this court as capable of being preferred. 74.However, counsel for So made a salient point, which this court agrees. What really matters is whether So has suffered from genuine psychiatric impairments including fear, apprehension, depression, alcohol abuse as a result of the 2012 injury and, if yes, what impact it has had on her. Whether or not her psychiatric impairments can fall within the straitjacket of DSM-IV is indicative of the severity but not per se a warrant for certain award. This is particularly true in circumstances like those of the present case where even Dr Tsang opined at the time of his report that So should suffer from mild to moderate residual mental symptoms which would affect her mood and give rise to worries. Other than that, she should be totally independent in self-care and capable of most functions. Similar assessment of the severity of her symptoms was reflected by Dr Tsang’s opinion on the reasonable sick leave and impairment attributable to the injury. 75.Further, a common feature of the joint orthopaedic and psychiatric expert reports is that they were dated in 2015 and 2016, which was 6 to 7 years prior to the trial. In considering the impact of the symptoms on So, this court is entitled to take into account evidence in respect of the circumstances of So since those joint expert assessments, including observations that can be made in the course of her evidence in court. 76.The evidence reveals that whilst So continued to experience difficulties in coping with various walks of life since the joint expert assessments, things appeared to have been improving sometime in 2017. That was when her frustration about accommodation was addressed by the allocation of public housing unit and her employment stability was also improving. So also made an effort to return to employment in the field of sports, including as teaching associate and part-time coach. Since mid-2020, she has sought employment, albeit not as personal trainer, in working environment presumably similar in nature to her pre-accident job, including as a manager in fitness clubs and earning decent salaries since 2021. That was also her job at the time of the trial. 77.In court, the ability of So to recollect events as well as that to be spontaneous and organised in handling cross examination impressed this court as no less than an adequately sharp person. Such manifestation aligns with the impact of improvement in her life in the past years mentioned above. 78.On the basis of, amongst others, the above findings, I turn to consider the various heads of claim. PAIN, SUFFERING AND LOSS OF AMENITIES (PSLA) 79.Reference is made on her behalf to David John Slater v. Commissioner for Police HCPI 646/2012 (7 July 2017) where it was held that awards in the serious injury category would start at $530,000.00 as at that date after taking into account inflation. The District Court in Yu Chun Kit v Wong Wing Yau [2021] 3 HKLRD 938 ventured to take the starting point of PSLA award for the category of serious injury further to HK$569,000 after considering the consumer price index in 2021. The exact extent to which such further increment has been endorsed by the first instance court of this level is unclear, and there was also the impact of the coronavirus pandemic over the last 3 years. So claims HK$450,000 under this head. 80.On behalf of So, the follows, amongst others, are referred to as comparable cases:
81.On behalf of JV, the following cases, amongst others, are referred to as comparables:
82.I find that the present case falls under the serious injury category. All the circumstances considered, I award a sum of HK$350,000 for the PSLA. LOSS OF EARNINGS 83.JV promoted So to personal trainer (Level 4) just about a month after her joining. She worked as such at the time of the injury in 2012 earning a basic monthly salary of HK$8,000. However, the bulk of her income came from commission, and when the commission receivable reached a certain level, the basic salary would be deducted from the commission. There were two types of commission: 10% on the total price of personal training package upon sale and 35% on the price of each personal training session in the package upon completion. 84.The documents recorded that from October 2011 to July 2012, So earned a total income of HK$560,290 (inclusive of her MPF contribution). The average monthly income was thus $56,000.00. JV indicated its readiness to adopt that amount for the purpose of assessment. 85.So projects the likelihood of increment in her income by the end of 2012, had it not been the accident. According to So, she had about 21 personal training clients, and charged HK$800-1,200 per training session. Each personal training client attended about 8 sessions per month. She expected the number of her personal training clients would have increased to about 25 by the end of 2012. On that basis, she claims to have been able to earn, but for the injury, a monthly commission of HK$84,000 (HK$1,200 x 8 x 25 x 35%). She proposed to adopt this figure for the assessment, though the 10% commission and, in some cases, her basic salary are yet to be taken into account. That said, circumstances indeed make precision impracticable. 86.There was not much documentary evidence in support of So’s projection of increase in number of clients, which both sides have failed to secure prior to the cessation of business of JV. However, given her background and early stage of career at the material time, this court is prepared to accept the likelihood of increase in the number of clients as projected. Adopting the median charge for each training session, ie HK$1,000, for calculation, the multiplicand would be HK$(1,000 x 8 x 25 x 35%) = HK$70,000. 87.Ching and Cheuk gave evidence in respect of their income as personal trainers. Ching is a lady fitness trainer, but she started her career as such at a relatively late stage when she was 48 years old. She is 54 years old at the time of the trial. As to Cheuk, he was a former classmate of So, and too used to be a participant in bodybuilding competition. He has worked in chain fitness centre before but become freelance afterwards. Before the COVID-19 pandemic, Ching used to earn about HK$35,000 and Cheuk used to earned about HK$80,000 per month. 88.Had So continued to work for JV but for the injury, she would have been subject to lay-off when JV closed its California Fitness centres during the period between 2014 and 2016 as mentioned. However, with her background, there is no reason for doubting that but for her injury and disabilities, she would have been able to either secure similar employment with other fitness centres or go freelance as her 2 witnesses have done. In other words, that change per se would not have brought about reduction in her earnings. 89.However, both Ching and Cheuk gave evidence in respect of the impact of COVID-19 on their line of business and hence their income, which is a factor not taken into account in So’s pleaded case. There is no dispute that fitness centres were directed to suspend operation for a total of 266 days at different times over the period between the end of March 2020 and late April 2022. According to Ching, her income was reduced by 30-40% during such COVID lockdown measures. In the case of Cheuk, the COVID lockdown measures caused his income to drop by 50-60%. In other words, the impact caused on average about 50% drop in the income of personal trainers. 90.Both Ching and Cheuk testified as to the gradual recovery of their income afterwards. By the time of the trial, Ching had scheduled personal training classes for about 10 hours per week at the hourly rate of HK$1,000. She also taught group fitness classes and earned HK$500 per session after deducting the gym rental. Her weekly and monthly income was about HK$12,000 and HK$48,000 respectively. In the case of Cheuk, he had scheduled about 40 personal training sessions per week at HK$480 each by the time of the trial. Weekly and monthly income was about HK$19,200 and HK$76,800 respectively. 91.Both Ching and Cheuk were straightforward and credible witnesses whose evidence in these respects is accepted. For the present assessment, it is also not unreasonable to assume that So would have been subject to a similar percentage reduction in her income during the same period, but would have been able to resume the previous income level gradually. 92.The pleaded case of So is that So could have worked in personal training at least until the age of 60 but for her disabilities. According to Ching, she planned to continue as a personal fitness trainer until she felt she could no longer manage. Her evidence as to the likelihood of that, with reference to examples that she personally came to know, was both fair and convincing. As far as she herself was concerned, she did manage to convince me as to such prospect. That however should not be readily equated with the maintenance of the same intensity of engagement and thus income level until retirement. That was certainly the impression this court obtained from the approach of Ching in her case. 93.Therefore, whilst So, if she were so minded and physically fit, would have been capable of continuing in the field of fitness training, this court has reservation about a projected constant income level throughout such career life until her intended retirement at the age of 60. There could be ups and downs as well as unknowns. That may be so particularly if at one stage So would have become freelance. Circumstances may vary with the stages of her life both as a competing athlete and as a person. Counsel for So argues that retirement in So’s case at the age of 60 was not specifically challenged in cross examination. That, in my judgment, does not prohibit a realistic scrutiny of what is essentially not fact but projected prospect and future in the circumstances of the case. Not without difficulty, this court doing the best that can be done would be prepared to assess on the basis of a retirement age of 55 in So’s case. A multiplier of 13.14 was proposed by JV in that case. 94.So was granted sick leave from 7 August 2012 to 31 October 2016, which was more than 4 years. This exceeded the reasonable sick leave from the orthopaedic perspective. Dr Chun opined that it should be less than 4 weeks whereas Dr Lee opined that it should be about 9 to 12 months, the longer period being accountable for possible CRPS complication. From the psychiatric perspective, Dr Tsang opined that sick leave from the first psychiatric consultation (ie July 2013) for 6 months was reasonable whereas Dr Yu considered that no sick leave was warranted as So suffered from no psychiatric problem resulting from the accident. As discussed, Dr Tsang’s opinion is clearly preferred. That would be sick leave until early 2014. 95.As mentioned, JV started to close down its fitness centres in 2014. That was about the time when the reasonable sick leave recommended by Dr Tsang would have come to an end, ie 6 months after the first psychiatric consultation in July 2013. The evidence was that So started to look for jobs in 2014. Since early 2015, So has been working in other jobs at different points of time. 96.From 10 March 2015 to 31 August 2016, So worked as veterinary assistant earning a total sum of HK$91,709.68. 97.From 1 January 2017 to 31 May 2017, So worked as customer officer for a telecommunication company and a part time coach earning the sums of HK$16,978 and HK$9,763 respectively. 98.From 1 June 2017 to 31 December 2017, So worked as a part time coach earning a total sum of HK$34,170.50. 99.From 1 January 2018 to 31 March 2018, So worked as teaching associate at the Vocational Training Council and part time coach earning the sums of HK$24,010 and HK$4,881.50 per month. From 1 April 2018 to 28 June 2019, she worked as teaching associate and part time coach earning the sums of HK$24,010 and HK$5,148 per month. 100.From 27 September 2019 to 31 March 2020, So worked as a part-time substitute physical education teacher in a secondary school for 6 days earning HK$10,068. 101.On 8 May 2020, So was employed by and worked for a fitness club as manager for a month earning HK$15,000. 102.From 22 June 2020 to 26 January 2021, So worked as a venue manager in Fanling Wo Hing Sports Centre earning a monthly salary of HK$17,000. 103.From 1 February 2021 to 24 September 2021, So worked as an assistant manager at another fitness club at a monthly salary of $22,000. 104.From 1 October 2021, she has worked as a fitness centre manager at a monthly salary of HK$30,000. 105.The question is whether So could have resumed her pre-accident job as a personal fitness trainer instead of the above alternative jobs sometime after the expiry of her sick leave. There is of course the different expert opinion in respect of So’s ability to resume being a personal fitness trainer. Dr Chun opined that she could have done so whereas Dr Lee opined that her such ability would be limited. Both Dr Lee and Dr Tsang considered the demand of the specific duties of a personal fitness trainer in the circumstances of So, and opined that she should be able to design exercise programme for her client and to give instruction verbally on methods and techniques. However, she might be unable to personally demonstrate very hard lifting method or to move heavy equipment. Counsel for JV suggested that that might well suffice. That, in my judgment, cannot be accepted both from professional and client safety perspectives, and is hardly what is expected of a personal trainer when he is attending his client in session. Common knowledge dictates. 106.Considering the question in another way, one asks whether So would have given up the idea of resuming as a personal fitness trainer even if she had felt able and confident in handling that after the expiry of her sick leave. The background and achievements of So by the time of the injury in 2012 set out above refer. That was still the early stage of her life as a competing athlete and her career. Her life as a competing athlete and her career as a personal fitness trainer proceeded hand in hand together. Not resuming the career as a personal trainer, which on the basis of the worst assumption against So in litigation may be driven by compensation psychology, is one thing. Giving up the hard earned life as an up and coming competing athlete with local and international ranking is quite another. All evidence considered, this court is not convinced that So would on her own motion give up either of them with awareness that she could have managed their resumption in fact. 107.It should be noted that whilst she has ceased being a competing athlete, she took up appointments as adjudicators in 2014 and 2015. When her condition has apparently become more stable by the end of 2017 as mentioned, So also started to take up jobs in connection with sports, and eventually back to work in fitness clubs though as a manager since 2020. Such conduct tends to cast light on her conscious choice to stay in the field of fitness sports. Her perception of ability to resume being a competing athlete and fitness trainer may be subject to test. However, the fact was that a decade has passed since the 2012 injury. There has also been no medical expert evaluation of her condition and ability since the last medical expert report some 6 years ago, which might have suggested whether she should be able to resume her pre-accident life as competing athlete and fitness trainer at least by now. In these circumstances, the uncertainty in this respect, in my judgment, should not be held against So insofar as her discharge of the reasonable duty to mitigate is concerned. 108.On the basis of the above discussion, I turn to the actual calculation. Pre-trial loss of earnings (inclusive of MPF benefits) 109.The loss of earning up to the date of trial would be as follows:
110.The impact of COVID-19 and the suspension of business of fitness centres on the earnings of So would have to be factored into the calculation. The evidence of Ching and Cheuk suggests that their earnings were cut by about 50%, which also took time to gradually climb back to the pre-COVID level. In my judgment, it is realistic to factor in a 50% reduction of the monthly earnings which So would have been able to make for a period of 1 year. That would be HK$70,000 x12 months x 1.05 x 50% = HK$441,000. 111.The total earnings which So could have achieved but for the accident would be HK$(221,676 + 8,820,000 – 441,000) = HK$8,600,676. 112.Account shall be given to the income earned (with, where appropriate, MPF benefits) since the accident as mentioned above:
113.The total actual earnings were HK$(91,709.78 + 26,741 + 34,170.5 + 91,008.23 + 153,079.5 + 63,520.8 + 263,550 + 10,068 + 22,500 + 124,950 + 184,800 + 409,500) = HK$1,475,597.81. 114.The total pre-trial loss of earnings would be HK$(8,600,676 – 1,475,597.81) = say HK$7,125,078. Future loss of earnings 115.The future loss of earnings would be HK$(70,000 – 30,000) x 12 months x 1.05 x 13.14 = HK$6,622,560. LOSS OF CONGENIAL EMPLOYMENT 116.This is an award to compensate the plaintiff’s suffering as a result of the giving up of a job which he enjoyed and which gave him satisfaction and/or status. This is an award of general damages and is distinct from an award of special damages for past loss of earnings and an award for damages for future loss of earnings and/or damages for loss of earning capacity: see Yeung Lai Ping v Secretary for Justice [2019] HKCFI 881 at §145. 117.As mentioned, So’s life as a competing athlete and career as a fitness training did and would have proceeded hand in hand. That said, the major setback, in my judgment, lies with her inability to continue the former, which she took so much pride as reflected by her evidence in this respect in her witness statements. Further, though she has not been hands on as trainer, So has since 2020 returned to the same industry and work in an environment similar in nature to that before the injury. All circumstances, I refrain from making this award. LOSS OF EARNING CAPACITY 118.Conventionally, this head of damages is allowed if it is established that the plaintiff, albeit employed, would likely be exposed to the risk of unemployment or under-employment on account of his handicap in the labour market: see Moeliker v Reyrolle & Co Ltd [1977] 1 WLR 132. 119.The basis on which So claims this head is her residual physical and depressive conditions which would continue to compromise her ability to handle weight in the course of her work. However, under consideration is not whether she would be faced with the risk while resuming work as a trainer, which she did not and she could not do. Rather, it is whether or not her capacity to stay employed in her present line of post-accident work would be at risk because of her residual disabilities. All things considered, I am not satisfied that such risk is substantiated. OTHER SPECIAL DAMAGES 120.Medical expenses in the sum of HK$53,821 and travelling expenses in the sum of HK$3,278.60 are claimed. Not all the expenses are supported by documents, and the amount claimed also exceeds the pleaded amount. HK$40,000 is allowed. SUMMARY 121.In summary, the award will be as follows:
122.Interest on general damages will run at 2% per annum from the date of writ and on special damages at 4% per annum from the date of accident until judgment. 123.Credit will be given to the employees’ compensation in the sum of HK$114,911.49. ORDER AND COSTS 124.Hence judgment against JV in the sum of HK$14,137,638 together with interest and subject to credit as aforesaid. Interest on the net sum shall run at the judgment rate from today until full payment. 125.There be a nisi order that JV shall pay So her costs of the assessment, including any costs reserved, to be taxed, if not agreed. Her own costs shall be taxed in accordance with legal aid regulations. In the absence of application to vary within 14 days, this nisi costs order shall become absolute without further order.
Mr Kenny Lin, instructed by Khoo & Co, assigned by the Director of Legal Aid, for the plaintiff Mr Patrick Chong and Mr Leon Ho, instructed by Au & Associates, for the defendant | |||||||||||||||||||||||||||||
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