So Sin Ying v. J. v. Fitness Ltd

CACV 246/2023, [2025] HKCA 948

On Appeal From [2023] HKCFI 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2023

(ON APPEAL FROM HCPI NO 1023 OF 2014)

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BETWEEN

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. INTRODUCTION

1.At the material time, the plaintiff (“So”)  worked as a fitness instructor in a fitness centre operated by the defendant (“JV”). She had an accident while at work in August 2012 and suffered an injury.  She later brought a personal injuries claim against JV by way of the proceedings below.  JV did not contest liability.  After a trial on assessment of damages, by way of an order dated 7 July 2023 (“the Order”), Deputy High Court Judge Leung (as he then was)  (“the Judge”)  (a)  awarded damages to So in the total sum of HK$14,137,638 (“the Judgment Sum”)  with interest[1]; and (b)  ordered JV to pay costs to So.

2.The Judge set out his reasons for the Order in his written judgment of the same date ([2023] HKCFI 1792)  (“the Judgment”).

3.By a Notice of Appeal (“NOA”)  filed on 4 August 2023, JV appealed against the Order, asking this court to set it aside and reduce the Judgment Sum.

4.In this appeal, JV was represented by Mr Leon Ho and So was represented by Mr Kenny Lin.  At the end of the hearing, we reserved our judgment to be handed down later.  This is what we do now.

B.  BACKGROUND

5.The background of this case has been summarised by the Judge at [2] - [19] of the Judgment which will not be repeated. We will only highlight the following relevant facts which are taken from the Judgment and from evidence not in dispute.

6.So was a former competing fitness athlete and a personal trainer.  She was employed by JV since 1 August 2011 as a personal trainer and was 28 years old at the time of the accident.  At the relevant time, JV operated a chain of fitness centres in Hong Kong under the brand of “California Fitness”.  JV started to close down its fitness centres in 2014 and was eventually wound up in 2016.

7.The accident (“the Accident”)  happened in the morning of 7 August 2012 at the California Fitness Centre at Tuen Mun Plaza.  During a personal training session with her client, So guarded her client from a fit ball rebounded from a mirror by stretching out her left hand.  She claimed that she felt immediate pain in her neck and trapezius region followed by numbness over her left upper arm.  She felt unable to get up from her lying down position and remained on the mat for over an hour.  She went to see a physiotherapist that late afternoon.

8.Due to severe pain later in the evening, she attended the Accident & Emergency Department of Tuen Mun Hospital.  After examination, she was discharged with a neck brace and painkillers with referral for physiotherapy.

9.Subsequently she had attended various physiotherapy and occupational therapy sessions and regular medical follow-up appointments.  MRI done on 26 September 2012 revealed that she had intervertebral disc protrusion at C5 and C6/7 of the cervical spine.  She was later referred to consult a psychiatrist for suspected depressive episode and began psychiatric and psychological treatments in July and October 2013 respectively.  Psychological symptoms, alcohol abuse and self-harm were recorded in 2013.  She also sought Chinese bonesetter treatment between 2013 and 2014.

10.After the Accident, So was continuously granted sick leave for more than four years by her attending doctors until the end of October 2016. At the time of the injury, So earned an average monthly income of HK$56,000 (inclusive of basic salary, commission and mandatory provident fund (“MPF”)  contribution)[2]. Since early 2015, So had been working in various jobs at different points of time.  It was her case that she was unable to resume her previous job as a fitness trainer because of the injury.

11.So commenced the present action for damages under common law in October 2014[3]. She obtained interlocutory judgment on liability against JV on 1 December 2014 for damages to be assessed.

C.  THE JUDGMENT

12.The trial on damages was conducted before the Judge over five days.  Both parties were represented by counsel.

13.It was So’s case that the Accident and injury caused her various residual physical, psychological and psychiatric disabilities. So’s claimed residual disabilities by reason of the injury are summarized by the Judge as follows[4]:

(1)  Neck pain and stiffness;

(2)  Left scapular pain leading to inability to put the left hand behind the back;

(3)  Continuous and intense left trapezius pain necessitating analgesic;

(4)  Sharp pain on the left ulnar two digits and on the ulnar side of the forearm up to the elbow in cold weather or in air-conditioned environment for three to four months after the injury;

(5)  Numbness of the left upper limb;

(6)  Tremor of left hand and the distal portion of the left forearm leading to inability to use chopsticks;

(7)  Paraesthesia;

(8)  Insomnia;

(9)  Moderate depressive episode for which antidepressant was prescribed;

(10)  Post-traumatic stress disorder (“PTSD”), including nightmares and hypervigilance to stimulus or places related to the Accident; and

(11)  Low mood, easily tearful, feeling helpless, harmful use of alcohol, negative thoughts, impatience, irritation and social withdrawal, self-harm, anxiety about future and career prospect as well as suicidal thoughts.

14.So said owing to her injury and residual disabilities, she was unable to resume her pre-accident job as a fitness instructor and she had also stopped participating in fitness competitions.  She was only able to work intermittently in various odd jobs between early 2015 and 2021[5].  From October 2021, So started to work more stably as a fitness centre manager earning HK$30,000 a month.

15.JV’s case was that So only suffered a simple neck sprain and that she was a malingerer who had exaggerated her injuries and symptoms.  It was JV’s case that So should have been able to resume her pre-accident job as a personal trainer not long after the Accident[6].

16.Other than herself, So had called three other factual witnesses to give evidence at the trial.  They are a former chief coach of the Hong Kong Bodybuilding Team (“Wong”), and two personal fitness trainers (“Ching” and “Cheuk” respectively).  JV called no factual witnesses.  Both parties had also relied on the following joint expert reports:

(1)  A joint orthopaedic expert report (“the Joint Orthopaedic Expert Report”)  by Dr Chun (for JV)  and Dr Lee (for So);

(2)  A joint psychiatric expert report (“the Joint Psychiatric Expert Report”)  by Dr Yu (for JV)  and Dr Tsang (for So).

17.On the principal contended issues between So and JV, the Judge made the following material factual findings in the Judgment:

(1)  The Judge accepted So’s evidence and found that she suffered from the various symptoms, and hence the disabilities resulted from the injury, as claimed:

(a)  After evaluating and assessing the factual evidence of So and Wong, the Joint Orthopaedic and Psychiatric Expert Reports and the various relevant medical records of the treating doctors, the Judge rejected JV’s case that So was a malingerer in knowingly “faking” her symptoms[7].

(b)  Similarly, after evaluating and assessing the relevant factual evidence from the witnesses, and the Joint Orthopaedic and Psychiatric Expert Reports, he rejected JV’s case that So had “exaggerated” her signs and symptoms, in particular in relation to the complaints about muscle weakness, numbness and tremor of her left arm.  In this respect, the Judge also expressly held that insofar as the psychiatric expert evidence was concerned, he preferred Dr Tsang’s opinion to Dr Yu’s[8].

(2)  As to the various heads of claimed damages:

(a)  On pain, suffering and loss of amenities (“PSLA”), the Judge found the present case to fall under the serious injury category and awarded So a sum of HK$350,000.[9]

(b)  On loss of earnings, the Judge accepted Dr Tsang’s opinion and held that So’s sick leave should have ended 14 months after the injury in early 2014.  Based on the evidence, the Judge assessed the median salary multiplicand to be HK$70,000.  After considering the impact of COVID-19 on the industry, the evidence of Ching and Cheuk and So’s alternative jobs since 2015, the Judge assessed her total pre-trial loss of earnings (inclusive of MPF benefits)  to be HK$7,125,078 and her total future loss of earnings HK$6,622,560.[10]

(c)  The Judge refused to make an award for loss of congenial employment and for loss of earning capacity.[11]

(d)  As to other special damages, the Judge only allowed HK$40,000.[12]

18.Accordingly, by way of the Order, the Judge awarded So a total sum of HK$14,137,638 as damages (subject to giving credit of So’s employees’ compensation award in the sum of HK$114,911.49), with interest on general damages to run at 2% per annum from the date of writ, and on special damages at 4% per annum from the date of the Accident until judgment.[13]

19.Subsequently, by a summons dated 22 September 2023 (“the Correction Summons”), JV applied to replace the Judgment Sum by the lesser sum of HK$13,562,934.50 on the basis that the Judge had made an error in the calculation of the MPF in failing to apply the maximum monthly MPF contribution capped at HK$1,250 until 31 May 2014 and HK$1,500 from 1 June 2014 onwards.  The Judge accepted in the decision dated 27 December 2023 ([2023] HKCFI 3352)  (“the Decision”)  (which also dealt with costs)  that he was in error in relation to the MPF calculation.  However, he also accepted So’s contention that he could not amend the Order under the slip rule and thus was of the view that the error could only be corrected in the appeal that JV had already lodged, and therefore made no order under the Correction Summons.[14]  This error now constitutes Ground 3 of the appeal (see below).

D.  THIS APPEAL

D1.  Grounds of Appeal

20.By the NOA, JV has advanced the following five grounds of appeal:

(1)  The Judge plainly erred in not finding that So had malingered and/or grossly exaggerated her claimed disabilities as the Judge had failed to consider various relevant important matters in the evidence advanced by JV at trial[15]. If these matters were taken into account, the Judge ought to have found that So had malingered or exaggerated her claimed symptoms and disabilities (“Ground 1”).

(2)  As a result, the Judge further ought not to have accepted Dr Tsang’s opinion that her related signs and symptoms were caused by her psychiatric conditions, as the opinion was expressed only on the basis that the claimed underlying physical symptoms were genuine.  In the premises, the Judge further ought to have found that So should be able to resume her pre-accident employment within three months after the Accident.  Her claim thus should not exceed HK$149,828.51 before interest (“Ground 2”).

(3)  The Judge was plainly wrong in the computation of loss of earnings at [109] - [111] and [115] of the Judgment, as in the said computation (a)  the Judge had wrongly disregarded So’s liability to pay tax on her income, and (b)  the Judge had wrongly included MPF on the basis of 5% instead of capping the MPF contribution at HK$1,500 per month (“Ground 3”).

(4)  Having found at [101] of the Judgment that So was capable of working as a fitness club manager and did so work as a fitness manager from May 2020, the Judge (a)  ought to have further found that So should have resumed work as a fitness manager shortly after the expiry of sick leave on 1 April 2014 earning no less than HK$30,000 per month, and (b)  should have based on that in his computation of the relevant loss of earnings (“Ground 4”).

(5)  The Judge erred in concluding that JV’s closure had not brought reduction in So’s income in asking the wrong question as to whether So could have gone freelance as the other two witnesses (Ching and Cheuk)  had done.  Given So’s own evidence that she needed a year to build up her client base when she first started the job as a fitness instructor in 2011, the Judge ought to have accepted JV’s position that So would have lost at least six months of earnings as a result of JV’s closure and winding up (“Ground5”).

21.We will elaborate further on these grounds when we deal with their merits below.

D2.  Legal Principles

22.The principles governing an appeal against a trial judge’s findings of fact are well-established: Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd (unreported)  CACV 11/2015, 27 November 2015 at [11] - [24]; and ZJW v SY (unreported)  CACV 10/2017, 1 December 2017 at [28] - [34].  In gist, the appellate court will only intervene when it is satisfied that the findings are “plainly wrong”.

23.Under the “plainly wrong” test, the court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one which (a)  there was no evidence to support; (b)  was based on a misunderstanding of the evidence, or (c)  no reasonable judge could have reached.  The threshold faced by an appellant is high.

24.It is also trite that the appellate court will not entertain an appeal simply because an applicant wishes to regurgitate arguments already considered below with the hope that this court may come to a different assessment of the situation: Symphony Partners Ltd v Fullerton Bay Investment Ltd [2018] 4 HKLRD 264 at [33].

25.Bearing these principles in mind, we will consider the grounds of appeal in turn.

D3.  Discussion

D3.1  Grounds 1 and 2

26.As advanced by Mr Ho for JV, Grounds 1 and 2 should be considered together as they are interrelated, and seek to challenge the Judge’s factual finding that So had not malingered or exaggerated her complaints and disabilities.

27.These grounds have to be understood in the proper context under which JV defended So’s claim in the assessment of damages.  As mentioned above, JV contended in the trial that So only suffered a simple neck sprain, which could not have caused all the symptoms and disabilities as claimed by So, in particular her left arm pain and numbness and left hand tremor.  JV ran a positive case that So was a malingerer who had at all material times exaggerated her injuries and symptoms[16].

28.In support of this defence of malingering and/or exaggeration, JV relied in particular on (a)  various pieces of evidence showing that So was effectively able to engage in her body building trainings and competition not too long after the injury and had been withholding these facts from the medical experts during their examination of her, and (b)  the respective opinions of Dr Chun (orthopaedic)  and Dr Yu (psychiatric)  that So had exaggerated her symptoms and disabilities out of proportion.

29.At the end, the Judge rejected JV’s contentions that So had faked and/or exaggerated her symptoms and disabilities.

(1)  In relation to the case of malingering: the Judge found at [48] of the Judgment that So had not faked her symptoms, as So’s complaints about the numbness and weakness over her left upper limb were documented in some of the relevant medical notes and records of the treating doctors two to three months after the injury, while her left hand tremor complaint was also recorded in the medical records since early 2013 and the relevant nerve conduction test.

(2)  In relation to the case of exaggeration, the Judge after discussing extensively the two psychiatric experts’ views and preferring Dr Tsang’s opinion to Dr Yu’s, found that So had not exaggerated her symptoms[17].

30.Mr Ho submitted that the Judge’s conclusions on the issues of malingering and exaggerations are plainly wrong.

31.Under Ground 1, Mr Ho contended that the Judge was plainly wrong because he had failed to take into account various matters as set out in paragraphs 1(1) - (5)  of the NOA[18] (collectively “the NOA Matters”), which showed that So’s complaints of left hand tremor, left upper limb numbness and weakness were clearly faked or exaggerated (Ground 1).

32.We do not agree.

33.First, it is noted that all the NOA Matters are all points of evidence which had been submitted in detail by JV to the Judge in its closing submissions.[19] Thus in this respect, Mr Ho is effectively re-running the same arguments in this court, hoping that we would come to a different view from the Judge as to whether So had faked and/or exaggerated her signs and symptoms and disabilities.  This per se is not a valid ground of appeal as this court has stressed repeatedly: see China Gold Finance Ltd v CIL Holdings Ltd (supra)  at [14].

34.However, Mr Ho argued that in the present case, it was plain that the Judge had failed to take into account the NOA Matters as this was consistent with (and thus supported by)  the fact that the Judge had also plainly failed (as the Judge has now acknowledged)  to take into account both parties’ submissions that So’s loss of earnings should be subject to a cap of HK$1,500 for MPF contribution and tax deduction (see [19] above and Ground 3 below).

35.As we indicated at the hearing, this contention can be dismissed shortly.  Simply as a matter of logic and common sense, the mere fact that the Judge had failed to take into account certain submissions in dealing with one of the issues argued before him by itself and without more should not and cannot be regarded as any clear basis to show that he must have also failed to take into account other submissions or evidence in relation to another separate and unrelated issue in the Judgment.  There is therefore nothing in this argument.

36.Second and in any event, we note that the Judge had in fact considered most of the NOA Matters at [38] - [47] of the Judgment and, after accepting the evidence of So and Wong and taking into account the relevant parts of the Joint Orthopaedic Expert Report, he concluded that these matters on balance did “not contradict or negative the existence and extent of injury alleged by So as a matter of fact”. 

37.There is therefore nothing in Ground 1.

38.Under Ground 2, Mr Ho contended that the Judge was plainly wrong as he had failed to make a ruling on which of the two orthopaedic opinions he preferred and why.

39.In this respect, Mr Ho emphasized that although the Judge had set out in great detail and at length at [51] - [74] of the Judgment the reasons why he accepted Dr Tsang’s opinion and rejected Dr Yu’s, he had singularly failed to state in any clear or express terms as to whether he accepted Dr Chun or Dr Lee’s opinion, and if so, why.

40.This is of critical importance, said Mr Ho, as Dr Tsang’s opinion on So’s psychiatric conditions (which the Judge accepted)  is that the underlying physical problems acted as precipitating and perpetuating factors for So’s depression.  Thus, counsel submitted, if the physical problems are faked or exaggerated as explained in detail by Dr Chun (for JV), the psychiatric problems would also either be faked or exaggerated, or not caused by the Accident.  To say that So’s psychiatric complaints are genuine and therefore her orthopaedic complaints are genuine is to “put the cart before the horse”.

41.In this respect, it is also JV’s case that had the Judge properly assessed the two orthopaedic reports, he ought to have preferred Dr Chun’s and found that So had exaggerated her symptoms and disabilities (in particular the severe pain and tremor of the left hand), and that So’s sick leave should only last four weeks and she could resume her pre-accident job.

42.We are also not persuaded by Mr Ho in this Ground.

43.We agree that the Judge could and ought to have expressed himself in a more direct and clear way as to his finding, but we are satisfied that, when the Judgment is read properly in the way as explained below, the Judge had accepted Dr Lee’s opinion and rejected Dr Chun’s with reasons.

44.Under the section headed “ORTHOPAEDIC EXPERT EVIDENCE” at [24] - [30] of the Judgment, the Judge first set out the respective opinions of Dr Lee (for So)  and Dr Chun (for JV)  as follows:

(1)  Dr Lee was of the view that, although the pain and tremor in So’s left hand could not be explained by the MRI findings, he could not exclude the possibility that some mild form of complex regional pain syndrome (“CRPS”)  had delayed her recovery, and certain psychosomatic factor might have perpetuated her pain symptoms.  As to her hand tremor, Dr  Lee was further of the view that this was common in persons with anxiety, and therefore did not necessarily connote exaggeration.  He therefore recommended psychiatric assessment for So.[20]

(2)  On the other hand, it is Dr Chun’s view that, after studying So’s past medical records and having physically examined her, he “found no objective evidence that the severe pain and tremor of the left hand [of So] had organic basis.  Nor was there clinical and neurological evidence to support the suspected CRPS” (emphasis added).  Dr Chun therefore maintained his view that So had expanded her symptoms.[21]

45.The Judge then went on at [32] - [37] of the Judgment (under the heading of “PSYCHIATRIC EXPERT OPINION”)  to set out and summarize the respective views of the psychiatrists Dr Yu (for JV)  and Dr Tsang (for So).

46.Thereafter, under the Section “Discussion”:

(1)  As mentioned above[22], the Judge at [38] - [47] of the Judgment considered the various matters relied on by JV (including the NOA Matters)  to contend that So was a malingerer but concluded effectively at [48] that she did not fake her symptoms as her symptoms were well documented by the relevant medical records of her treating doctors not long after the Accident.

(2)  The Judge at [49] then highlighted the material differences between the respective opinions of Dr Chun and Dr Lee in relation to the issue of So’s exaggeration of symptoms:

(a)  Dr Lee was of the view that (i)  he could not rule out CRPS as an explanation for So’s pain symptoms and, (ii) despite the lack of other clinical explanation, the hand tremor could be a feature of common anxiety instead of exaggeration.  He therefore recommended psychiatric assessment.

(b)  Dr Chun opined that So had 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.

47.After highlighting these material differences in the orthopaedic experts’ respective views as to whether there were possible explanations for So’s symptoms, in particular the left upper arm pain and hand tremor based on CRPS and anxiety, the Judge then moved on to deal with the issue of exaggeration.  He first set out what he regarded as the meaning and concept of exaggeration in this context at [50] as below:

“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.”

48.In other words, the Judge explained that if the amplification of symptoms and pain was explicable by psychological conditions consequent to the injury, this was not exaggeration.  But if they could not be explained by such psychological conditions, they would then be sheer exaggeration by the patient.  Mr Ho confirmed at the hearing that there was no appeal against the Judge’s said formulation relating to the meaning of exaggeration.

49.Bearing this meaning in mind, the Judge turned to consider the Joint Psychiatric Expert Report, where (as summarized by the Judge at [33] - [37] of the Judgment)  Dr Tsang was of the view that So suffered from a major depressive episode of a moderate degree and PTSD as a result of the injury, while Dr Yu was of the view that the injury did not qualify as a traumatic event of PTSD and found So to be incredible and her complaints were likely to be the result of overacting.  Dr Yu also referred to Dr Chun’s report and considered that where the physical symptoms have been exaggerated, the reported subsequent resultant mental stress would likewise have been exaggerated.  Dr Yu was further of the view that So’s psychiatric complaints were the result of her alcohol abuse which pre-existed and was not attributable to the Accident.

50.After having carefully considered the respective views of the psychiatrists against various relevant evidence (including the relevant medical and factual evidence)  at length at [51] - [77], the Judge accepted Dr Tsang’s opinion and rejected Dr Yu’s.

51.Upon reaching that conclusion, the Judge then moved on to consider the various heads of claims based on So’s case of her disabilities as claimed.  In so doing, the Judge must have also rejected JV’s case on exaggeration.

52.Once these relevant parts of the Judgment are so considered as a whole in the way explained above, we are satisfied that the Judge had accepted Dr Lee’s view that So’s symptoms, in particular in relation to the left upper arm pain and left hand tremor, could be explained by the psychiatric conditions of a major depressive episode of a moderate degree and PTSD which were consequent to the injury as supported by Dr Tsang’s opinion (which the Judge accepted).  This can be the only logical basis for the Judge to conclude that So’s symptoms and disabilities as claimed were not exaggerated.

53.In this respect, it is pertinent to note that Mr Ho rightly does not seek to challenge the Judge’s acceptance of Dr Tsang’s report over Dr Yu’s for the reasons he had set out in detail in the Judgment.

54.Mr Ho however submitted the acceptance of Dr Tsang’s opinion could not be regarded as an indication that the Judge had also impliedly accepted Dr Lee’s report.  This is because Dr Tsang’s opinion was premised upon the actual presence of the relevant underlying physical conditions, which conditions were then amplified by the psychiatric conditions, but not the other way round, as expressed in paragraphs 81 - 87 of the Joint Psychiatric Expert Report as follows:

“Causation

81. Mr. [sic] So did not have any depression before the injury. Depressive symptoms appeared sometime after the injury. The injury on 7 August 2012, the persisting pain and weakness of left upper limb acted as precipitating and perpetuating factor for her depression.

82. The injuries on 7 August 2012 was a traumatic events [sic] she experienced as a threat to the physical integrity of self and brought intense helpless [sic]. She became hypervigilant shortly afterwards. The traumatic event is persistently re-experienced in intrusive recollection of the evens [sic] and recurrent distressing nightmares. She felt intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. She avoided stimuli associated with the trauma, like avoiding going to crowded situation as she was afraid of walking fast towards her and she avoided looking at fit ball at occasions that she needed to face it.

83. The index accident led to some of her present physical complaints. It has also acted as psychosocial events that precipitate the onset of PTSD and Major Depressive Disorder in her. The issue of alcohol abuse was likely to be part of the depression as she tried to do away the depression via drinking. When her mood improved, she managed to cut down her drinking. Therefore, alcohol abuse was just a problem indirectly related to the index injury.

84. The pain on neck, weakness of left upper limb and resulted in related dysfunction might act as maintaining factor for her depression. Her depressed mood made her lost confidence, motivation and had a negative evaluation towards her future might also exaggerate her physical symptoms. In early 2015, her mood improved and she managed to work as vet assistant yet she was not confident enough to return to work as fitness trainer. Such lack of confidence might both due to depressed mood and physical problems.

85. Her mood deteriorated a few months before the joint psychiatric assessment is likely to be caused by other psychosocial stressors she experienced. The recent recurrence of her depression is not directly caused by the index incident.

86. On the other hand, recurrence of depression as a result of psychosocial stressors implied she might be of higher vulnerability to develop mood problem. Major Depressive Disorder is an illness with a strong genetic predisposition and the onset or recurrence might be precipitated by significant life events. The index injury serves as the trigger and the persistent physical complaints and other various psychosocial factors contribute as perpetuating factors.

87. It is difficult to have a precise estimation of how much the index injury contributes to her present mental morbidity. I would estimate that the index incident contributes 50% in the causation.”

55.In this respect, although Mr Ho accepted that one could not eliminate the possibility that for certain types of psychiatric illness there would be imaginable pain on certain areas, he submitted that such a situation needed to be supported by evidence.  However, in the present case, submitted Mr Ho, it was not Dr Tsang’s opinion that the psychiatric conditions were the cause of the symptoms (such as the left upper arm pain and the left hand tremor)  in the absence of the relevant underlying physical conditions.  Mr Ho further emphasized that it is pertinent to note that both orthopaedic experts were of the view that there appeared to be no orthopaedic or organic basis to explain for the existence of So’s left arm symptoms of numbness and tremor.

56.We do not accept Mr Ho’s submissions.  As this court pointed out at the hearing, in rejecting the JV’s case that So had faked her symptoms, the Judge, based on the relevant historical medical records of So’s attending doctors, had found as matter of fact that So’s physical symptoms of left arm weakness, numbness and left hand tremor were already present not long after the injury as these symptoms were well documented in various medical records.  He explained this at [48] of the Judgment as follows:

“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.”

57.Mr Ho again fairly accepted that the Judge was fully entitled to consider the evidence of historical medical records of the treating doctors[23] to decide whether and when the symptoms existed and he was not challenging the Judge’s said conclusion at [48] of the Judgment.

58.Once it is (rightly)  accepted that it was reasonably open to the Judge to find as he did that So’s physical symptoms of her left arm pain and numbness and left hand tremor were not faked as they were well documented in her treating doctors’ relevant medical notes and records not long after the injury, Mr Ho’s contention at [54] above can no longer be supported and is therefore invalid. 

59.For all the above reasons, we dismiss Grounds 1 and 2.

D2.2  Ground 3

60.Ground 3 challenges the Judge’s ruling on So’s loss of earnings.  As set out at paragraph 3 of the NOA, it is contended that, having found that So’s notional monthly earnings was HK$70,000 (at [86] of the Judgment), the Judge erred in the computation of loss of earnings in [109] - [111] (for pre-trial loss of earnings)  and [115] (for future loss of earnings)  of the Judgment as:

(1)  It was plainly wrong for the Judge to disregard So’s liability to pay tax in the notional monthly earnings of HK$70,000.  The Judge ought to have found that So should pay no less than 10% of her earnings as income tax based on the unchallenged evidence.

(2)  It is plainly wrong for the Judge to compute MPF on the basis of 5% of the monthly earnings.  The Judge ought to have found that MPF contribution should be capped at HK$1,500 per month.

61.As submitted by Mr Ho, the Judge himself has acknowledged that his ruling on MPF “must be wrong”[24] and So also accepted that the loss of MPF benefits should be subject to the cap of HK$1,500 per month.

62.The issue of tax liability in the computation of the loss of earnings was also clearly before the Judge[25].  The Judge apparently held that no tax should be deducted from So’s earnings.  See [109] of the Judgment.

63.By a letter dated 9 December 2024 (“the December Letter”), So’s legal representatives now accepted that the Judge was also wrong in not taking into account So’s tax liability in the computation of loss of earnings.  This must be right as it is well established that So is only entitled to claim income loss net of tax[26].  They also accepted in the December Letter JV’s contention that the Judge should apply a 10% tax deduction on So’s pre-trial and post-trial loss of earnings.

64.It is not satisfactory that the Judge has made these obvious errors in relation to the question of MPF and tax calculations in his ruling on So’s loss of income.

65.In these circumstances, there is therefore no dispute before us that Ground 3 should be allowed.

66.The parties have also now agreed that the correct total loss of MPF that should be taken into account in the computation of the loss of earnings is HK$180,212.50.  See: the joint Revised Tax Deduction and MPF Calculation (Re Ground 3 of the NOA)  dated 15 January 2025[27] (“the Joint Submissions”)  lodged pursuant to the court’s direction made at the hearing.

67.However, the parties still disputed on how the tax deductions should be calculated.  The dispute relates only to the question of whether and how, in calculating the relevant tax deductions for the purpose of computing So’s loss of earnings, the personal disability allowance that So was entitled to claim in her tax return should be taken into account[28].

68.The loss of earnings is computed by looking at the difference between So’s post-tax earnings in (a)  the hypothetical scenario where the Accident did not happen and she would be earning the notional sum of HK$70,000 a month (as held by the Judge), and (b)  So’s actual earnings.

69.In relation to this, it is JV’s contention[29] that when computing So’s notional post-tax earnings, So should not be entitled to take into account the personal disability allowance.  On the other hand, when computing So’s actual post-tax earnings, she has to give credit for personal disability allowance (“D’s Approach”).  This is so as, said Mr Ho, in the hypothetical scenario which the Accident did not happen, So would be without disabilities and would not be entitled to claim personal disability allowance when paying tax.

70.On the other hand, Mr Lin for So submitted that she should be entitled to have her disability allowance taken into account in calculating her notional post-tax earnings (“P’s Approach”).  This is so as, Mr Lin said, So is awarded only partial loss of earnings for the relevant period but not full loss of earnings.  Hence, there remains a portion of actual or notional earnings which she has actually earned or is supposed to have earned.  As regards that portion of earnings, she should be entitled to claim personal disability allowance.  In the premises, in computing her partial loss of earnings, her personal disability allowance should be taken into account[30].

71.We agree with Mr Ho.  The notional post-tax earnings is premised on the assumption that the Accident had not happened and So was thus without any material disability.  In the premises, there is no reason as to why So would be entitled to claim personal disability allowance in her tax return in relation her notional monthly earnings of HK$70,000.  In the premises, D’s Approach should be adopted and P’s Approach be rejected.

72.The parties have further agreed that, if D’s Approach is adopted, the correct assessment of So’s loss of earnings should be HK$5,905,417.19 (pre-trial post tax loss)  + HK$5,100,948.00 (post-trial post tax loss)  + HK$180,212.5 (loss of MPF)  = HK$11,186.577.69[31].

73.In the premises, and for the above reasons, JV succeeds under Ground 3.

D2.3 Ground 4

74.Under this ground, Mr Ho submitted that, as the Judge found that So should only be entitled to sick leave until early 2014[32], and that So worked as a fitness club manager beginning May 2020 earning HK$30,000 per month at the time of the assessment, he ought to have further found that So should have been able to resume work as a fitness centre manager shortly after the expiry of sick leave in early 2014 (eg, 1 April 2014)  earning no less than HK$30,000 a month.  In the premises, the Judge ought to have found that So could have earned HK$30,000 a month from 1 April 2014 to 30 November 2022[33].

75.We disagree.

76.It is pertinent to note that JV’s case in the court below in relation to the question of pre-trial loss of earning was solely based on the contention that So was able to resume her work as a fitness instructor a few months after the Accident[34]. Accordingly, JV did not advance any alternative case that So could have started her career as a fitness centre manager in early 2014.  In our view, there is no basis for this court to allow JV to advance this fact-sensitive new case in the appeal.  Ground 4 should be dismissed on this basis alone.

77.In any event, for the reasons below, we also do not see any merit in Mr Ho’s submissions.

78.As we pointed out to Mr Ho during the hearing, JV made the following submissions in its closing submissions under the section of “D3. Future Loss of Earnings and MPF” (not under pre-trial loss of earnings):

“88. Further, the Plaintiff could have started her career as a fitness centre manager long ago. She belatedly took it up in May 2020 [A2/254/18,19].

89. Incidentally, the fact that she could work in a fitness centre show that she did not have any psychological problem of visiting a gym. In any event, the photo [C/322] shows that as early as on 7 April 2013, she had been going to the gym already.” (Emphasis added)

79.In this respect, So was questioned during the cross examination by counsel for JV as follows:

“問： 咁其實妳係--當其時叫妳去做番文職呢，2014年2月18號，其實妳就可以做番健身呢個行業嘅工種，好似頭先我哋睇到嗰兩種喎，做助理經理，就唔使去做咩嘢獸醫助理呀，或者其他嘅工作喇。

答： 第一，喺嗰段時間，我自己未接受得到去番嗰個場地喇，因為健身室嘅場地有我相關受傷嘅時候嗰啲嘅fitball，咁而我哋健身行業嘅工作時間相對下較長嘅，咁而我喺嗰個身體狀況同埋精神狀況呢，係做唔到咁長時間嘅工作，所以我係接納咗醫生話做文職嗰個建議，係嘗試喺唔同嘅工種去apply工作喇。

問： 妳係因為見到--驚見到fit ball，咁所以就唔去做喇，係咪？

答： 你可以咁講喇。

問： 我向妳指出，呢個係一個大話嚟嘅，同唔同意？

答： 唔同意。” (Emphasis added)

80.It was therefore So’s evidence that she did not and could not go to work at fitness centres earlier in 2014 because of the presence of fit balls there as she was still psychologically apprehensive of the recollection of the Accident.  This evidence was supported by Dr Tsang’s observations stated at paragraph 101 of the Joint Psychiatric Expert Report as follows:

“101. The Major Depressive Disorder Ms. So has been suffering from is moderate in severity and recurrent and chronic in nature. She is unlikely to be able to return to previous job as fitness instructor. She might be able to take up a job with light duty if her mood and confidence improve further. If she managed to overcome her fear towards [scenes] related to the injury, she might be able to design fitness program and verbally instruct clients on fitness skills. Yet she might not be able to demonstrate how to use [various] fitness machines and this might hinder her to get a job in the trade.” (Emphases added)

81.On the basis of the above factual and medical evidence, which was not materially challenged, it is simply not open to Mr Ho to now contend that the Judge had plainly erred in not finding that So should have been able to return to work as a fitness centre manager soon after the expiry of her sick leave in April 2014.

82.Ground 4 fails.

D2.4 Ground 5

83.Under Ground 5, Mr Ho argued that the Judge erred in his finding at [88] of the Judgment that the closure of JV per se would not have brought So’s reduction in income:

“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.” (Emphases added)

84.In support of this ground, Mr Ho pointed out that it was So’s own evidence that it had taken her one year to build up her earnings as a fitness trainer to around HK$60,000 a month by building up her client base.  In the premises, it would only be reasonable that So would require a transitional period (say at least six months)  to rebuild her own client base if she was to start a new employment or go freelance as a fitness instructor after JV’s closure.  It was thus wrong for the Judge to effectively say that no time would be required for So to rebuild her client base (and hence So’s earnings would not be reduced by the closure of JV)  as this was contradicted by So’s own evidence.

85.We see no merit in Mr Ho’s submissions.

86.So’s own evidence that it had taken her one year to build up her earnings to around HK$60,000 a month was in relation to the time when she first started her career as a fitness instructor in August 2011[35]. By 2014, So had already built up her clientele and experience.  It must thus be reasonably open to the Judge to accept that with her background, she would have been able to start off with the client base which she had already built when she started a new employment or went freelance as an instructor.  On that basis, it must also be reasonably open to the Judge to find that no transitional period was required and her income would not be reduced by reason of JV’s closure.

87.For the above reasons, Ground 5 must also be dismissed.

E.  CONCLUSION

88.For the above reasons, we allow the appeal only on Ground 3 but dismiss the other grounds of appeal. Accordingly, we set aside the Order only in relation to the award of loss of earnings (pre-trial and future)  and substitute that part with an award of HK$11,186,577.69[36].

89.As to costs, we see no reason to depart from the usual principle of costs following the event.  JV has failed on all grounds of appeal except Ground 3.  On the other hand, despite the December Letter, we do not think JV should be deprived of its costs relating to Ground 3 since, as explained in [60] - [72] above, there were still a number of matters arising from Ground 3 which were not resolved or consented to by So by the December Letter and it was thus reasonable for JV to continue to pursue this ground at the hearing.  In all the circumstances, we consider it just and fair to make an order nisi that JV do pay 80% of So’s costs of the appeal.  We further order So’s own costs be taxed in accordance with Legal Aid Regulations.  The costs order nisi shall become absolute 14 days from today unless any of the parties applies by summons to vary it.

Mr Leon Ho, instructed by Au & Associates, for the Defendant

Mr Kenny Lin, instructed by Cedric & Co, assigned by the Director of Legal Aid, for the Plaintiff