Au Yeung Miu Sim v. Tsang Kwong Wai & Another

CACV 90/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 90 OF 2003

(ON APPEAL FROM HCPI 244 OF 2001)

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Coram: Hon Ma CJHC, Rogers VP and Le Pichon JA in Court

Date of Hearing: 3 February 2004

Date of Judgment: 3 February 2004

Date of Handing Down Reasons for Judgment: 13 February 2004

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REASONS  FOR  JUDGMENT

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Hon Ma CJHC:

1.I agree with the reasons of Le Pichon JA for our decision on the appeal and cross appeal.

Hon Rogers VP:

2.I also agree with the reasons of Le Pichon JA.

Hon Le Pichon JA:

3.This appeal and cross appeal arose out of an assessment of damages for personal injuries sustained by the plaintiff in a road traffic accident. At the conclusion of the hearing, the appeal was dismissed with costs and the cross appeal allowed with costs for reasons to be handed down in writing later. This we now do.

Background

4.The plaintiff was the driver of a KMB bus who sustained injuries when the light goods vehicle driven by the 1st defendant carelessly cut into her lane. The accident happened on 12 June 1998.

5.The plaintiff obtained judgment on liability against the defendants on 9 January 2002, with damages to be assessed. The plaintiff's case below rested upon the development of a psychosomatic disorder as a result of those injuries. The defendants disputed this and contended that the plaintiff was malingering. Not surprisingly, there was a considerable amount of medical evidence before the master.

The judgment below

6.The master reviewed in some detail medical treatment and consultations received by the plaintiff. The following is a short chronology:

(1)	Following the accident the plaintiff was taken to Queen Elizabeth Hospital where she was diagnosed as having "sternal contusion, soft tissue injury neck and right knee." She was treated and discharged on the same day and given a sick leave certificate for two days.
(2)	Two days later, she was seen at the United Christian Hospital, treated and discharged.
(3)	Two weeks after the accident, she attended the Ngau Tau Kok Jockey Club Clinic for neck pain and bilateral knee pain. She was diagnosed as suffering from "sprain injury of both knee joints." She received treatment and had follow-up consultations over a period of about three months, after which she was referred to the Orthopaedic Clinic, Caritas Medical Centre ("CMC") for management because of "persisting bilateral knee joint pain."
(4)	She was first seen at the Orthopaedic Clinic, CMC on 14 August 1998. There were a number of follow-up visits, including one in December 1998, when a MRI scan of her knee was performed and showed normal ligaments and menisci. Eventually, in mid-1999, the Orthopaedic Clinic referred the plaintiff to the Psychosomatic Clinic of CMC.
(5)	Meanwhile, in February and March 1999, the plaintiff received treatment from Po On Leung Wah, a bone setter.
(6)	Then in March and April 1999, she consulted Drs Chang, Cheng and Partners, a trauma and orthopaedic practice, where she received an injection, medication as well as physiotherapy treatment.
(7)	On 11 May 1999, the plaintiff sought treatment from Dr David Chin, a neurologist. She was admitted in St Teresa's Hospital under his care on 17 May 1999 and was discharged five days later on 22 May 1999. During this period, the plaintiff underwent x-rays and MRI scans but it would appear that certain other tests were carried out at the Baptist Hospital on 20 May.
	Whilst at St. Teresa's, she was also seen by an orthopaedic surgeon, a Dr Lam Yuk Yee who commented that her pain was due to a cruciate ligament tear. Dr Chin himself considered that the accident caused "Reflex Sympathetic Dystrophy" in her right leg. These diagnoses were not supported by other medical opinion. Indeed, according to Dr Lam Kwong-chin, the former had apparently been ruled out with certainty by the MRI scans.
	After her discharge, the plaintiff continued to consult Dr Chin on a regular basis until, at least, April 2002. He prescribed a large variety of analgesics, anxiolytic drugs as well as anti-depressants.
(8)	As noted above, by July 1999, the Orthopaedic Clinic of CMC which had not been able to identify any significant orthopaedic problem, referred the plaintiff to the Psychosomatic Clinic. Dr Ku, its Senior Medical Officer, prepared a report which recorded that the plaintiff's main concern was "persistent right lower limb pain." He reported that:
	"... During the subsequent follow ups, her physical and psychiatric conditions remained unchanged, despite supportive psychotherapy and encouragement of physiotherapy to overcome her limb problem.
	I am of opinion that she is suffering from Somatoform Pain Disorder, which is not due to the direct effect of the traffic accident. Instead, the aetiology of her persistent right lower limb pain, if not fully accounted by physical impairment, is at least partly psychological in origin."
(9)	Between September and December 1999, the plaintiff received Chinese acupuncture treatment from Cannie Development Company Limited.
(10)	Between September 1999 and May 2001, she received physiotherapy treatment from Po Hong Physiotherapy Centre.
(11)	In July 2001, the plaintiff attended Dr Poon for treatment of gastric ulcer and injury to her duodenum as a result of over-medication.

7.The master also reviewed medical reports from orthopaedic specialists, Dr Danny Tsoi and Dr Lam Kwong-chin, including a joint report from them prepared pursuant to Seagroatt J's directions, and from specialists in psychiatry, Dr Peter Ho and Dr Singer. The joint report of the orthopaedic surgeons recorded findings upon a physical examination to the effect, inter alia, that whilst there had been no wasting of the thigh and calf muscles, there was a "diffuse weakness (grade 3 to 4) over the whole right lower limb, not according to any myotome distribution." Drs Tsoi and Lam opined that the diffuse weakness "could not be explained by orthopaedic means."

8.So far as the psychiatric reports are concerned, the psychiatric symptoms recorded by Dr Ho and Dr Singer were similar: depressive mood with occasional suicidal ideas, loss of appetite, weight loss, insomnia, fatigue, loss of interest in activities, socially withdrawn, unstable and impaired concentration. They were also consistent with what Dr Singer had recorded after interviewing the plaintiff's daughter Ms Chan Ching Ping. As regards the plaintiff's psychological condition was a difference of opinion between Dr Ho and Dr Singer. In Dr Ho's view the plaintiff's complaint of pain was genuine. Dr Singer thought otherwise. He considered the plaintiff a malingerer.

9.The master came to the following conclusion:

"40. ... I accept the plaintiff only suffered a minor contusion and tissue injury. She had recovered fully from her physical injuries save and except a minor inflammation in her right knee with a mild residual pain. There was no physical pathology to account for her persistent pain over the various parts of her body. Her symptoms were partly psychomatic (sic) and partly exaggeration on her part.

41. Despite her physical recovery the plaintiff firmly believed she could not be cured. Subconsciously she believed the pain would remain with her for life... As a result of her obsession with the firm belief that the pain would never subside she developed a psychological disorder which emancipated itself as a mild diffuse bodily pain. She frankly admitted in court that at certain point of time she was taking too much medication that resulted in a digestive disorder for the excessive amount of medications she consumed all at the same time.

42. I accept the plaintiff is suffering from a mild psychosomatic disorder which emancipates itself in a mild form of bodily pain. On the other hand I do not accept that her pain was to such an extent as to affect her mobility or her general ability to look after herself or to engage in simple work... Her remaining disability is psychopathic in nature. Her psychosomatic disorder renders her unsuitable to remain as a bus driver, an occupation which requires close and quick co-ordination between the mind and the body..."

10.The master awarded the plaintiff damages for pain, suffering and loss of amenities (PSLA) in the sum of $250,000. The plaintiff's pre-trial loss of earnings was calculated on the basis that the plaintiff should have been able to engage in basic manual work as from November 2001 on a notional income of $6,750 for the period from November 2001 to 20 August 2002, being the last hearing date of the assessment. As regards her post-trial loss of earnings, the master proceeded on the basis that the plaintiff would possibly be able to work to 63 years of age. She therefore adopted 2 as the multiplier as the plaintiff was already aged 59 at the time of the assessment. Of the medical expenses claimed of $241,093, the master disallowed medical expenses spent in consulting Dr Chin, hospitalisation at St Teresa's Hospital, the Baptist Hospital, acupuncture treatment, other clinical expenses, the bone setter's fees and associated travelling expenses.

This appeal

11.The defendants challenged the amount of damages awarded for PSLA and the findings that (1) the injuries rendered her unsuitable to return to her pre-injury employment as a bus driver, (2) the plaintiff could only have resumed gainful employment as from November 2001, and (3) the likely notional retirement age of the plaintiff would be 63. These findings had underpinned the master's award of pre and/or post trial loss of earnings.

PSLA

12.The master's award was based on her finding that the plaintiff was suffering from a genuine psychosomatic disorder manifested as a mild form of bodily pain. I did not understand Miss Lau, who appeared for the defendants, to be taking issue with the amount awarded if the master's finding of psychosomatic disorder were correct. Miss Lau submitted that having rejected the plaintiff's case of persisting severe right knee pain the master should have found that there was but a mild degree of residual inflammation and no significant degree of residual pain and awarded PSLA damages on that basis.

13.In effect, Miss Lau was challenging the findings made in paragraphs 41 and 42 of the judgment set out in paragraph 9 above. It was argued that it was not open to the master to find that the plaintiff was suffering from a genuine psychosomatic disorder because the objective evidence showed that she was not in fact suffering any pain. The objective evidence to which Miss Lau attached considerable importance was the fact that there had been no wastage in the plaintiff's right calf muscle and surveillance videotapes taken on two occasions showed her to be walking with a normal gait. At one stage Miss Lau appeared to suggest that if the plaintiff had suffered any pain at all, whether real or psychosomatic, it would necessarily have affected her functionally. The objective evidence - the absence of muscle wasting - showed that she was not functionally impaired. As she was able to use her limb in the normal manner, it was said that that constituted cogent evidence of malingering. However, Miss Lau could not point to any medical evidence that supported her submission.

14.Another point made by Miss Lau was that Dr Peter Ho's report was premised on there being "persisting severe right knee pain." Since the master had rejected the plaintiff's evidence of having severe right knee pain, it was said that little weight should be attached to Dr Ho's report. But I do not read Dr Ho's reports as having been so premised. The reference to "severe knee and back pain" is to be found in the section headed "Accident on 12th June 1998" which merely recorded the plaintiff's complaint.

15.Miss Lau then contended that the master had adopted a view that was not supported by expert evidence. But when one turns to the medical evidence, one finds the following:

(1)	The report made by Dr Ku of the Psychosomatic Clinic, CMC, part of which is cited in paragraph 6(8) above, referred to the plaintiff "suffering from Somatoform Pain Disorder" and the aetiology of her persistent right lower limb pain being "at least partly psychological in origin."
(2)	In the medical report from the plaintiff's orthopaedic specialist, Dr Danny Tsoi, one finds this:
	"... From an orthopaedic surgeon's view, the alleged knee pain could not be explained. It was very likely that the pain was psychosomatic in nature ...
	In conclusion, it was very likely that Mdm. Au Yeung only suffered from a minor degree of soft tissue contusion over the right knee during the accident. It was complicated by involvement of psychological factor that gave rise to intolerable pain ...
	Physically, Mdm. Au Yeung is fit to resume her pre-injury job as a bus driver. It was the psychosomatic factor that rendered her totally incapable of performing any kind of gainful work..."
(3)	In his first report dated 28 February 2000, the plaintiff's psychiatrist, Dr Peter Ho, opined that the plaintiff
	"... had been suffering from a depressive condition in relation to the injury she sustained on 12th June of 1998.
	Notwithstanding the notion that some of her physical symptoms might have the element of psychological overlay, I am of the view that they were still genuine sufferings of hers.
	...
	She would benefit from psychiatric and psychological treatment.
	...
	At present it is considered that she was not able to return to her previous job of a bus driver in view of her somatic and psychiatric condition."
(4)	The joint report of the orthopaedic specialists, Dr Lam Kwong-chin and Dr Tsoi, referred to the plaintiff's knee symptoms being
	"... disproportional to the minimal objective signs. Possibility of exaggeration could not be ruled out...
	The exaggerated symptoms may be related to her psychological or psychiatric disorders ..."
	Whilst of the view that the analgesics prescribed by Dr Chin were unnecessary, they were of the view that the rest, being anxiolytic, sedative drugs "might be prescribed for her psychiatric disorder."
(5)	In his second supplementary report dated 31 January 2002, Dr Ho reiterated his view that
	"... there was likely a psychological element involved in the perpetuation of the knee pain and weakness since the accident.
	...
	The other possible explanation is as quoted in the Comprehensive textbook of Psychiatry that the memory of the painful injury retains its grip on her attention even after the acute tissue damage had apparently remitted.
	It is common in every day clinical practice for patients to complain of pain without obvious structural pathology demonstrated."

16.Whilst Dr Singer was of the view that there was a large element of exaggeration in the plaintiff's clinical presentation and that she was a malingerer, it cannot be said that there was no expert evidence upon which the master could have come to the conclusion that she did or that she was bound to prefer Dr Singer's evidence. Findings based on expert (or opinion) evidence are to be treated on appeal as findings of fact. In order to overturn the master's findings of fact, it has to be shown that she went seriously wrong, for example, by overlooking critical evidence, misunderstanding the evidence, or making a finding that was wholly unsupported by any evidence. The defendants came nowhere near showing this.

17.Miss Lau also sought to criticise Dr Ho's reference in his first report to there being "an element of psychological overlay". It was said that it was unclear what that meant. But Dr Ho was one of the medical witnesses who gave oral evidence. Whilst Miss Lau was not the counsel below, the answer would be evident from a perusal of the transcript. Surprisingly, Miss Lau was unable to throw any light on whether Dr Ho had been asked about this in cross-examination. For reasons which are not readily apparent, the appeal bundles did not include the transcript of the hearing below.

18.I pause here to observe that, generally speaking, it is rare for challenges to findings of fact below to be made without references to the transcript to demonstrate where and how the judge below erred. The absence of any reference to the evidence below by either counsel appears to me to be quite remarkable in the circumstances of this case.

19.Be that as it may, essentially, Miss Lau's case amounted to no more than this: the master ought to have preferred the evidence of Dr Singer and found the plaintiff a malingerer. But, as noted above, that falls far short of what is required to overturn a factual finding below. That being the case, the challenge to the master's finding of a psychosomatic disorder must fail. Without overturning this finding of fact, the defendants challenge to the amount of damages awarded for PSLA must fail.

Post-accident employment

20.The master found that the plaintiff's psychosomatic disorder rendered her unsuitable to be employed as a bus driver. This was firmly grounded on the medical opinions of Dr Danny Tsoi and Dr Peter Ho. Miss Lau acknowledged that this was not an independent ground but was consequential on her succeeding on her first point in overturning the finding of psychosomatic disorder. As Miss Lau did not succeed on the first point, nothing more need be said about this.

Period of disability

21.In computing the plaintiff's pre-trial loss of earnings, the master proceeded on the basis that the plaintiff should have been able to take up a job involving basic manual work from November 2001. This meant that the master took the view that the period of disability was some 40.5 months from the date of the accident. Miss Lau sought to challenge this on the basis that there was no evidence to support such a finding. But in paragraph 45 of her judgment, the reference was to November 2001 "round about the time of the joint assessment by Dr. Lam and Dr. Tsoi." The joint medical assessment referred to took place on 29 November 2001. The last paragraph of the joint report read:

"Orthopaedically, Mdm. Au Yeung should be able to return to her pre-injury job as a bus driver...."

It should be noted that the doctors did not opine that the plaintiff could have returned to work on some earlier date. The natural inference is that they meant the date on which they examined the plaintiff. Had it been their opinion that the plaintiff could have resumed employment earlier, they would no doubt have said so expressly. In the circumstances, the master was perfectly entitled to accept that evidence and make a finding accordingly. It is also to be noted that the plaintiff was paid by her former employers up to November 2001 (albeit in sums not always readily referable to any formula). This supports the conclusion that she was not able to work until then.

Notional retirement age

22.In assessing the plaintiff's post-trial loss of earnings, the master adopted a multiplier of 2. She did so on the basis that the plaintiff possibly would be able to work to 63 years of age and she was already 59 at the time of the assessment hearing. At paragraph 53 of the judgment, the master said this:

"53. According to the evidence of the plaintiff the usual retirement age of the KMB staff was 60 years. She testified that she wished to carry on working for KMB until she reached 65 years of age. In the present economic climate, in the absence of evidence from KMB that they would be prepared to extend a driver's retirement age to beyond 60 years of age, I have reservation to accept her retirement age would be extended to 65. Accepting that the plaintiff possibly be able to work till 63 years of age, I adopt 2 as the multipler since the plaintiff was already 59 years old at the time of the hearing of this assessment."

It was said that the master had engaged in pure speculation since there was no evidence to support such a view.

23.What Miss Lau did not have in mind was the following exchange in the plaintiff's examination-in-chief:

Q.	How would you perceive your life before the accident?
A.	Well, nothing particular, I just think I'll continue to work until I retire at the age of 60. Well, if the company considers that my performance was good, then they would extend my work to three or five years....

(Tr. p. 29D-E)

Given that evidence even though slight, what the master found in paragraph 53 of the judgment was justified and no exception can legitimately be taken to the master's finding. In my view, the point taken was misconceived.

24.For the reasons stated, none of the grounds of appeal had any merit. I would add that it is to be regretted that the transcript was not read with the care and seriousness it deserved prior to the bringing of this appeal. Had that been done, I doubt if this appeal would have been brought.

The cross appeal

25.The cross appeal related to the following special damages which were disallowed by the master:

a.	Hospital and medical expenses
	i.	St. Teresa Hospital	$25,385
	ii.	Hong Kong Baptist Hospital	4,930
	iii.	Dr. David Chin	181,960
	iv.	Cannie Dev Co. Ltd.	3,550
	v.	Other clinical expenses	6,400
	vi.	Bonesetter	4,940
b.	Travelling expenses
	i.	St. Teresa Hospital	240
	ii.	Dr. David Chin	8,700
	iii.	Cannie Dev Co. Ltd.	1,100

The plaintiff also claimed interest at half the judgment rate on those special damages from the date of the accident to the date of judgment.

26.The master's reasons for disallowing those special damages are to be found in paragraphs 41 and 58 of the judgment:

"41. ... She indulged in excessive and often unnecessary medical attention. Instead of accepting the advice and the opinion of most medical practitioners that she had fully recovered from her injuries, she chose to believe her pain lingered. She proceeded to receive acupuncture therapy and consulted the bone setter though she had no real orthopaedic abnormality...

58. ... However it was clear that the plaintiff's soft tissue injuries were cured long before the assessment hearing. The medical expenses spent in consulting Dr. Chin, hospitalization at St. Teresa Hospital, the Baptist Hospital, the acupuncture therapy treatment, other clinical expense and the bone setter fees were not justified..."

It is not readily apparent from the materials before this court why the master thought that those special damages were not "justified" save that from her observations in paragraph 41, it would appear that she considered that acupuncture therapy and consultation of the bone setter were not justified in the absence of 'real orthopaedic abnormality'.

27.It is common ground that all medical expenses honestly and reasonably incurred by a plaintiff for the treatment of injuries caused by the accident are recoverable: Rubens v Walker [1946] SC 215. The applicable test therefore is whether those special damages had been honestly and reasonably incurred by the plaintiff. Further, as Lord Collins observed in Clippens Oil Company Limited v Edinburgh and District Water Trustees [1907] AC 291 at 304:

"... the wrong-doer is not entitled to criticize the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after-events that another course might have saved loss. The loss he has to pay for is that which has actually followed under such circumstances upon his wrong."

In the present case, whilst the diagnosis of a cruciate ligament tear by the orthopaedic specialist at St Teresa's Hospital and Dr Chin's diagnosis that the accident had caused "Reflex Sympathetic Dystrophy" in the plaintiff's right leg were not supported by other medical practitioners, it is clear from the Clippens case that the expenses incurred are recoverable even if with hindsight the medical advice turned out to be wrong.

28.It would not appear that the master sought to apply the correct test (indeed, it would appear she was not referred to the above authorities) which is whether the special damages in question had been honestly and reasonably incurred by the plaintiff. The master made no reference to the evidence but the following extracts from the transcript are informative:

(A)	the plaintiff's reasons for consulting Dr Chin and attending St Teresa's Hospital
	Q.	Why did you change from Dr Chiang to Dr Chin?
	A.	Because Dr Chin was a specialist in the Baptist Hospital, he's an honoured doctor, a specialist.
	(Tr. p. 44B)
	Q.	What's the reason of you attending St Teresa Hospital?
	A.	Because of the regular pain, I want to have a thorough examination to see what the problem was.
	Q.	Can you tell us more; what regular pain?
	A.	The right knee. Regular numbness like being punctured by needles, severe pain when going upstairs, severe pain, unable to sleep, need to take sleeping pills.
	(Tr. p. 25B-D)
	Q.	Now, going back to the receipt on page 90. You just said you wanted to have a thorough examination to see what the problem was. As a result of your intake to St Teresa Hospital, did you find out what the problem was?
	A.	Doctor told me that the ligament was lax and there was inflammation on the membrane connecting the bone and there was neurological damage. I complained that I suffer a lot, I could not sleep, I asked why. Doctor prescribed medicine to me.
	(Tr. pp. 25T-26B)

(B)	the plaintiff's reasons for seeking different kinds of treatment
	Q.	Isn't the position this; that the government hospitals told you they had done investigations on your knee and found nothing wrong with it?
	A.	That's right.
	Q.	You weren't happy with that advice and therefore you went to talk to Paul Ko in October 98, isn't that right?
	A.	Because of pain in the leg, I could not sleep. That's right.
	...
	A.	... it's hard on me. I would like to seek a good doctor who can lessen my suffering.
	...
	Q.	... You saw him a total of four times and then you stopped seeing him. Is that because he also told you that there were no problems with your knee as you were complaining?
	A.	Disagree. Disagree. He mentioned about the ligament was lax.
	...
	Q.	You then stopped going to him and you went to a bonesetter, right?
	A.	Yes.
	Q.	It appears from the receipts that you went from 23 February 1999 until 8 March 1999. Now, why did you stop?
	A.	Because not much progress.
	Q.	You then went to see Dr Chiang in March 1999, right? The receipt is in bundle 2 page 123.
	A.	Well, I sought so many medical consultations just because I want to have full recovery concerning my leg injury, I would like to resume work. I spend all my savings on this, just because I want to have full recovery.
	(Tr. pp. 43E-44A)
	Q.	Can you tell the learned Master the reason why you sought so many different kinds of treatment?
	A.	Because of the pain in the leg. I wish that it could be cured so that I could sleep.
	(Tr. p. 26P-Q)
	Q.	Now, you explained that you stopped seeing Dr Paul Ko because his treatment did not cure you; right?
	A.	Because I didn't see any effect after having taken the medicine prescribed by him.
	Q.	Why did you stop seeing the bone-setter in 1999?
	A.	Because having received a long duration of treatment and the situation remained the same.
	Q.	Then why did you continue seeing Dr Chin for such a long period of time? Is that because you -- he told you what you wanted to hear, that there was a problem with your knee?
	A.	Disagree.
	Q.	Well, you've allegedly spent a lot of money seeing Dr Chin. You claim the sum of over 100,000. Why have you continued to spend so much money to see him if you say that you have no relief?
	A.	Because the pain lessened after I have taken the medicine prescribed by him. I was able to sleep.
	Q.	But he has not solved your back problems or you leg problems; is that right?
	A.	At least to a certain extent, I was relieved of pain.
	(Tr. p. 55I-Q)

29.In my view, the master failed to apply the applicable principles when she disallowed the special damages that are the subject of the cross appeal. Had she had the right test in mind and considered the evidence, she would not have disallowed them.

Representation:

Mr Dennis Law, instructed by Messrs Peter K S Chan & Co.,for the Plaintiff/Respondent

Ms Selina Lau, instructed by Messrs Ip Kwan & Co.,for the 1st and 2nd Defendants/Appellants