Yung Wun v. Kum Shing (K.F.) Construction Co Ltd and Another

HCPI 679/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 679 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Muttrie in Court

Dates of Trial: 17-18, 20 April and 3 May 2007

Date of Judgment: 27 June 2007

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J U D G M E N T

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1.The plaintiff, Madam Yung Wun, who sues by her daughter and next friend Ms Jiang Siao Wen met with an accident on 1 September 2001.  Madam Yung was employed as a labourer by the 2^nd defendant at the 1^st defendant’s building site.  She was working in a trench for underground cable installation.  Cables were slung over wooden beams laid across the trench.  One of the beams broke.  The beam and cables fell and the beam struck the plaintiff so that she suffered injuries.  She now claims damages for personal injuries against both defendants.

2.There is no dispute as to liability; the dispute is on quantum, and specifically as to the extent of the injuries caused by the accident.  In brief, the plaintiff claims that as a result of the accident she has suffered, as well as some orthopaedic injuries, a conversion disorder which renders her hemiplegic and wheelchair-bound.  The defendants however say that she is malingering; she suffered only minor injuries and she should have been able to return to work within 12 months.  

Issues

3.On the first day of the trial Madam Yung was brought into the courtroom in a wheelchair, wearing a hat pulled low over her eyes.  I was told that she was unable to give evidence.  She made incoherent sounds from time to time and had to be kept quiet by her son, but when her daughter, Ms Kong Siu Man (Jiang Siao Wen) gave evidence, Madam Yung was quieter.  She appeared to be in a pitiful state; to the layman’s eye, she appeared to be suffering from some kind of dementia as well as from the hemiplegia complained of.  However, as I remarked to counsel, I do not have the expertise to make any assessment of her condition and must decide the case on the evidence and in particular on the expert evidence.

4.Madam Yung’s psychiatric expert, Dr Chan says that she has a conversion disorder, which is a psychiatric disorder not intentionally produced or feigned and which causes symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition.  It is what I think used to be called “hysterical paralysis”.

5.The defendants’ psychiatric expert, Dr Singer says however that Madam Yung is simply malingering.  She has grossly exaggerated her symptoms and she is not suffering from any diagnosable psychiatric disorder in direct consequence of the accident.

6.The primary issue for decision is therefore whether Madam Yung really suffers from a conversion disorder, and if so whether it was caused by the accident.  If she does damages will have to be assessed on that basis; if she does not, then damages will have to be assessed on the basis that she suffered relatively minor orthopaedic injuries.

7.Oral evidence was taken from Ms Kong, the plaintiff’s expert psychiatrist Dr Chan Sai Yin and the defendant’s expert psychiatrist Dr Karam Singer.  However, before dealing with the oral evidence it is best to refer to the other medical reports in the bundle for background.

Hospital Reports

8.A medical report dated 29 April 2002, by a Dr Shih of the Princess Margaret Hospital shows that the plaintiff was seen by him at the Accident and Emergency Department on the day of the accident.  She had a history of head injury due to contusion by a falling wooden block.  She also sustained neck and right shoulder injury, and she “had a fit” and lost consciousness.

9.On arrival the plaintiff’s vital signs were stable.  She was conscious and oriented.  She local tenderness over the occipital area and right shoulder.  Passive neck movement was full and slightly tender.  She had erythema and tiny abrasions on the right shoulder.  Other examination was described as “quite unremarkable”.

10.Madam Yung was X-rayed; nothing abnormal was found.  She was then admitted to the neurosurgical ward.  A report by a Dr Wong Yuk Wing of that department dated 17 June 2002 shows that on admission Madam Yung was fully conscious without neurological deficit.  X-rays of the skull, neck and chest were normal.  She was treated conservatively.

11.Then on 2 September 2001 Madam Yung was found to have right sided weakness from the right L1 dermatome downwards.  Neurological scans and other tests were done and conservative treatment given.  An MRI scan dated 7 September 2001 shows her as having a clinically minor stroke after head injury.  She is shown as having improved with physiotherapy and as having been discharged home on 7 September 2001.

12.A physiotherapist’s report shows that Madam Yung attended his department from 17 October 2001 and had 10 sessions of physiotherapy.  She was discharged on 30 January 2002, by which time the range of motions of the neck were full.  No neurological deficit was detected.  No specific muscle spasm was found over the neck region.  The subjective improvement of neck pain was 70-80%.  There is no mention of right arm or leg weakness.

13.It would appear from the reports that by the end of January 2002, Madam Yung had pretty well recovered from her injuries.  However the neurologist’s report shows that she was last seen in the outpatient clinic on 26 April 2002, when she had persistent headache and dizziness.  Her right side still showed some weakness on examination.

14.Things changed in June 2002.  A medical report from the North District Hospital dated 23 September 2002 shows that she was admitted as an emergency case on 24 June 2002 because of ischaemic stroke, presented with transient loss of consciousness and right-sided weakness.  Various tests were done but no signs of stroke were found.  All was normal.  She underwent stroke rehabilitation in Tai Po hospital where she was assessed by a psychiatrist and there was no suggestion of conversion or dissociation disorder.  Neuropsychological assessment showed mild grade mental deterioration in intellectual functioning, moderate to severe antegrade memory impairment and borderline to impaired mental set shifting and abstract reasoning.  She had a further MRI which showed no significant change.  She was last seen at the neurovascular clinic on 2 September 2002 with stable clinical condition in terms of memory and mobility.

15.In fact a referral letter dated 7 August from the Tai Po Hospital to the radiological, neurosurgical and psychiatric clinics at Princess Margaret Hospital appears to show that the doctors there did not know what was wrong with Madam Yung.  Nine differential diagnoses were considered, including malingering.  A similar letter dated 11 September 2002 shows that she was discharged home, able to walk with a frame.  She was referred for follow up at the neurological and psychiatric clinics.

16.A report Madam Yung obtained from the People’s Hospital of the Beijing University dated 27 September 2002 also shows no abnormality in the head CT scan.

17.There is also an orthopaedic report dated 16 January 2003, but the extent of the orthopaedic injuries was not great.  The diagnosis was of sprained neck injury, which was treated conservatively and gradually approved with physiotherapy.  Madam Yung was last seen in the orthopaedic clinic in February 2002 when she was complaining of residual headache and dull ache over the neck and shoulders.

18.Madam Yung was referred to the psychiatric department at the North District Hospital in August 2003.  A report dated 19 April 2004 shows that she had memory and behaviour problems, feelings of guilt and episodes of self-harm by cutting her wrists.  She was differentially diagnosed as having organic mood disorder and organic personality disorder, and was treated with antidepressants and mood stabilisers, but her drug compliance was not satisfactory.

Orthopaedic Reports

19.The orthopaedic injuries are relatively unimportant in comparison with the rest of Madam Yung’s condition, whatever caused that.  However I will set out briefly the opinion evidence.  Madam Yung was seen by her own expert, Dr Chan Kow Tak, and by the defendants’ expert, Dr Chun Siu Yeung.  I will refer to these as necessary elsewhere, for the clinical picture they saw at the dates of their respective examinations.

20.Dr Chan said that the trauma resulted in left shoulder stiffness and pain, left lower neck pain and right clavicle pain.  The left shoulder lesion was probably post-traumatic frozen shoulder with impaired rotation and abduction.  The right shoulder injury did not cause too much disability compared with the right upper limb weakness resulting from the brain lesion.  Reasonable sick leave for the orthopaedic injuries was 12 to 15 months.

21.Dr Chun diagnosed a minor contusion of the cervical spine and left shoulder.  He did not agree that the frozen shoulder, if such there was, would be post-traumatic; he said that that would not be related to the injury.  She should have recovered from her minor contusions by February 2002; sick leave given up to that time was reasonable.  Purely considering the minor orthopaedic injuries, there was no significant permanent impairment.

Joint Neurologists’ Report

22.Madam Yung was seen by Dr Wai S Poon, instructed by the plaintiff, and Dr Edmund K W Woo, instructed by the defendants.  They saw her on 14 May 2003 in the presence of her daughter.

23.The neurologists agreed that while Madam Yung was complaining of residual headache, giddiness, impaired memory and right hemiplegia, her neurological examination demonstrated many unusual features.

24.In brief, these two experts agreed that although Madam Yung had only suffered a mild head injury, she was presenting with severe cognitive dysfunction such as would be expected after a severe head injury with significant parenchymal brain damage and frontal lobe dysfunction.  Likewise, she had memory loss which was inconsistent with mild head injury.

25.She had demonstrated progressive deterioration in neurological function after the mild head injury but this was inconsistent with traumatic or vascular disease of the brain.

26.She had profound weakness in her right extremities, but this was characterised by equal involvement of the agonist and antagonist muscles.  She demonstrated head full head turning to the left, but was unable to turn her head to the right; this was non-physiological and could indicate malingering.

27.As to ischaemic stroke, which had been assumed in June 2002, the neurologists agreed that there was no evidence that she had had a stroke or that it had been caused by the head injury.  Cerebral angiography in September 2001 had excluded the possibility of ischaemic stroke.  The anatomical distribution and temporal profile of the alleged deficits were inconsistent with vascular disease as with head trauma.

28.As to the genuineness of the complaints, Dr Poon and Dr Chan disagreed.  Dr Poon thought that persistent headache, giddiness and proneness to vasovagal attacks complained of were likely to be genuine.  However, the global cognitive deficits and right hemiplegia were unexplained.  Dr Woo went further.  He considered that all the discrepancies and inconsistencies indicated defied neurological principles and indicated that the deficits were feigned.

29.At that stage Dr Poon considered that Madam Yung would not be able to return to construction site work but she could work as a caretaker in residential block, if her unexplained deficits resolved with time.  Dr Woo thought she would be able to go back to site work, but her performance might be limited by headache and giddiness.

Rehabilitation consultant’s report

30.Madam Yung was examined by Mrs Tsang Lau Kit-ping, Alice, on the joint instructions of both sides.  This was done in August 2005.  Mrs Tsang was instructed to provide rehabilitation evaluation and evaluation on whether Madam Yung should be wheelchair bound.  If the answer was yes, she was to give the supporting reason for and duration of such need, and to consider what other aids than the wheelchair would be needed, and the cost thereof.

31.Mrs Tsang did not give evidence.  The Master’s order was that her report should be adduced without oral evidence.  Mr Sakhrani applied to call her but after hearing argument I declined to allow that.

32.Mrs Tsang saw Madam Yung for two evaluation sessions, one at her office and one at the family home, and on both occasions with family members and in particular the daughter.  She said that Madam Yung and her family demonstrated that she had shown problems in orientation and not being aware of what went on around her; a psychosocial problem of irritability and mood change; inability to actively control her right limbs; that she needed a wheel chair because of that; incontinence; and inability to take care of herself, so needing full time care.

33.Mrs Tsang went on to note certain discrepancies.  I will refer to them in more detail below.  In effect what she says is that there are no physical reasons for Madam Yung to be wheelchair-bound.  However, it is possible that due to a psychological condition such as conversion disorder, she might believe in her mind that she cannot use her right side, and needs to be wheelchair-bound.  In that case, Madam Yung needs psychiatric or psychological treatment, and might also benefit from some rehabilitation for functional training.

34.Mrs Tsang also noted that the arrangement, or lack of re-arrangement of furniture in the family home suggested that Madam Yung did not need heavy assistance of two persons in walking there.  Despite Madam Yung’s report of lack of active movement in her right leg, she could nevertheless retain the posture of it, which indicated that active control was possible, whether conscious or not.  She also noted that despite the report of Madam Yung’s mental state being disoriented and inert, she followed all the conversations and performed appropriate activities at appropriate times.

Psychiatric Reports

35.Dr Chan Sai Yin, a psychiatrist, was called by the plaintiff.  He had examined Madam Yung on 10 September 2004 and had written a total of four reports.  Dr Karam Singer was called by the defendants.  He had examined Madam Yung on 17 March 2005.  He wrote a total of three reports.

36.Both psychiatrists used the definition of “Conversion Disorder” set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4^th Edition, commonly known as the DSM-IV).  The criteria are:

A.     One of more symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition.

B.     Psychological factors are judged to be associated with the symptom or deficit because the initiation or exacerbation of the symptom or deficit is preceded by conflicts or other stressors.

C.     The symptom or deficit is not intentionally produced or feigned (as in Factitious Disorder or Malingering).

D.     The symptom or deficit cannot, after appropriate investigation, be fully explained by a general medical condition, or by the direct the effects of a substance, or as a culturally sanctioned behaviour for experience.

E.      The symptom or deficit causes clinically significant distress or impermanent in social, occupational, or other important areas of functioning or warrants medical evaluation.

F.      The symptom or deficit is not limited to pain or sexual dysfunction, does not occur exclusively during the course of Somatisation Disorder and is not better accounted for by another mental disorder.

37.In brief, Dr Chan said that he agreed with the neurologists that the hemiplegia and severe global cognitive dysfunction were nonphysiological.  That left two explanations for the symptoms, namely conversion disorder and malingering.  Dr Chan said that there was only one factor that favoured malingering, namely the medicolegal context of presentation, whereas there were many factors, which he enumerated, favouring conversion disorder.  In particular it seems that he relied on Madam Yung’s presentation of ankle oedema as showing that the leg had been unused for a long time; and he also put considerable stress, particularly in his supplemental reports on the difficulty which Madam Yung would have had both in producing and maintaining the symptoms complained of over a long period.

38.Dr Chan considered that it was overwhelmingly probable that Madam Yung was suffering from the latter and that it was caused by her injury on 1 September 2001.  In fact he said that it was directly caused by the injury “as evidenced by its time of onset and nature of symptoms.”

39.This he amplified, particularly in his last report where he took issue with Dr Singer’s views that there was a lack of adequate psychological causation, to say that although symptoms were minor at the outset they could produce psychological stress which was not minor.  That Madam Yung produced symptoms resembling stroke 9 months post-accident, in circumstances where she was not getting better, was burdening her daughter, had a son to look after, while her husband had deserted her, supported his argument that the original accident caused all the subsequent problems.

40.Dr Chan said that Madam Yung probably also had a postconcussional syndrome, and she might be suffering from depression.  Prognosis was unfavourable and the conversion disorder would last for several years.  She would not be able to have any meaningful employment for at least two years, expanded in a later report to two to five years.

41.Dr Singer took the opposite view.  He came down firmly on the side of malingering.  Having noted that Madam Yong presented with head injury followed apparently by a progressive right-sided paralysis and numbers, and double in confidence, profound cognitive impairment, severe disturbance of behaviour and mood, and almost total dependence in activities of daily living, he considered the various possible diagnoses and rejected them all.

42.In the first place Dr Singer considered dementia due to head trauma but rejected that diagnosis because of gross inconsistencies which suggested significant exaggeration.  He likewise considered and rejected psychosis due to head trauma.  As to conversion disorder, psychological causation was suggested by the lack of physical pathology.  However, such a diagnosis, while it might explain the hemiparesis and numbness would not explain the mental symptoms.  He further considered post-concussion syndrome but that too he ruled out, for the reasons given.

43.Dr Singer pointed to various inconsistencies as highly suggestive of exaggeration in which there was a conscious intent to deceive.  He pointed in particular to inability on the part of Madam Yung to recognise her daughter, at the interview, while at the same time she was capable of speaking coherently, complaining about her symptoms, conversing and holding a logical sequence of thought.  He also pointed to evasiveness and refusal to answer questions, and he considered that the production and smearing of faeces, which Madam Yung did at the interview, was evasive.  He also pointed to self-serving behaviour; in effect, the ability to answer when it suited her, and to keep quiet when her daughter was being interviewed, rather than herself.

44.In a nutshell, he noted that Madam Yung sometimes acted and responded in a silly and childish manner, but sometimes acted and responded intelligently, during his examination of her; and as he put it in his oral examination-in-chief,

“You can fake being stupid but not being intelligent.  If you manifest as intelligent that is your true state.”  (My note)

45.Dr Singer also commented at length on and took issue with the factors relied on by Dr Chan as indicating conversion disorder.  There followed the series of reports in which the two psychiatrists each took issue with the other’s views.  The original and supplementary reports and the oral evidence were necessarily lengthy but in the interests of brevity I do not propose to rehearse them in any more detail though I will refer to particular points later if necessary.  However it is necessary to note at this stage that although Dr Singer at first said that the presence of the symptoms of dementia ruled out the application of Criterion A in the DSM – IV list, later he accepted that such symptoms could be present along with conversion disorder.  At the same time, he said, because such symptoms are not included in the Criteria, it is necessary to explain them; and this, in his view, Dr Chan had not done. 

46.Suffice it to say that the psychiatrists are quite certain in their views; either Madam Yung has conversion disorder, according to Dr Chan, or else she is malingering, according to Dr Singer.

Evidence of the Daughter

47.As I have indicated, Madam Yung appeared to be in no fit state to give evidence, and nor did she.  The only lay evidence came from the daughter, Ms Jiang.  It appears that she was brought up on the Mainland, as indeed was Madam Yung, who only came to Hong Kong in 1997.  Ms Jiang came here in October 2001; it is her evidence that she came to look after her mother, when she heard about the accident.

48.In her first witness statement (two statements were adopted) Ms Jiang simply said that her mother was physically and mentally unable to work after the accident.  She then noted that on 24 June 2002, Madam Yung had suddenly gone into a coma at home and had been admitted to hospital.  She then returned to the situation since the accident; she said that after her mother came out of hospital on 7 September 2001 she had often complained of dizziness, headache and pain over the whole body.  There were circumstances of vomiting, coma and incontinence.  Madam Yung was put on medication at that time.  Her memory and concentration deteriorated, her appetite decreased and she lost her temper from time to time.  In the beginning she had numbness and weakness on the right side, but this got worse, and the episodes of dizziness, vomiting and coma became longer.  There were also spasms in the right fingers and toes during the coma episodes.

49.Ms Jiang was not very clear in the statements about the progress of her mother’s condition.  This was revisited in cross-examination but the picture did not become much clearer.  It appears from cross-examination that the episodes of whole body pain, loss of consciousness and incontinence had all started by the time Ms Jiang arrived in October 2001 but everything become progressively worse from then on.  When Ms Jiang arrived, Madam Yung was using an umbrella to support herself when she walked, and would hold on to furniture when moving about inside the family home; and even then she tended to fall down, but again this got worse as time went on.

50.Ms Jiang was, however, quite unclear about when the incontinence started and when she had to start buying adult diapers for her mother.  One would have thought that something as unpleasant as the beginning of one’s own mother’s incontinence would have been firmly fixed in any normal person’s memory.

51.Curiously enough, none of this appears in the hospital medical reports.  There is no mention of memory loss before 11 November 2002 when it appears in the report of Dr Chan Kow Tak, to whose consulting room Madam Yung was brought in a wheelchair.  There is no mention of episodes of “coma” or loss of consciousness, or of spasm in the right extremities, or indeed of any kind of psychiatric symptoms in the hospital medical reports.  Incontinence does not appear, so far as I can see, before the joint neurological examination in May 2003.  Ms Jiang’s explanation, at any rate for the absence of such complaints in the earlier hospital reports, is that she told the doctors about these complaints but the doctors just told her not to worry, and did not make a note of them.  That is not credible.

52.There is also a degree of uncertainty in the evidence of when Madam Yung’s husband left her.  This appears to range from a few months after the accident, which is what Ms Jiang told her psychiatric expert, to about September 2002 after the visit to the hospital in Beijing.  This matter comes into the picture in the psychiatric reports; Dr Chan appears to have taken it into account in his 3^rd report dated 28 June 2005 as a stressor involved along with the accident as the cause of the conversion disorder which he diagnosed.

53.There were various other unsatisfactory aspects to Ms Jiang’s evidence relating to her mother’s loss of earnings and her visits to the Mainland (when she would not have been working), location of witnesses of the accident itself and the like, which were touched on by Mr Sakhrani in cross-examination and relied on by him in argument.

54.These matters are of course important insofar as they relate to Ms Jiang’s credibility, because not only is she the only lay witness for the plaintiff’s side, but also, it appears, all the histories taken by all the specialists came predominantly from her.

Discussion

55.Madam Yung is entitled in any event to compensation for the minor head and orthopaedic injuries caused by the accident.  In order for me to award compensation on the basis of conversion disorder it is necessary for her to prove on the balance of probabilities that she suffers from conversion disorder and that she contracted it as a result of the accident.  She does not, of course, have to prove that she is not malingering, nor do the defendants have to prove that she is malingering, but the point is that the onus is on her to prove the existence and causation of the medical condition she relies on.

56.In the beginning, apparently, Madam Yung had no neurological symptoms except the right side weakness recorded on 2 September 2001.  As I have noted the MRI showed a clinically minor stroke.  There is but a brief mention of right side weakness; it does not appear in the physiotherapy reports and nothing further is seen of it in any medical report in the early stages.  This suggests that Madam Yung recovered from it.

57.It seems that there was little objectively wrong with Ms Yung between the time she left hospital on 7 September 2001 and the time when she presented with the suspected, but totally unverifiable stroke in June 2002.  The first time we see any further medical evidence of right limb weakness as well as of neuropsychological impairment with mild deterioration of intellectual functioning, moderate to severe memory impairment and borderline to impaired mental set shifting and abstract reasoning is in the reports from the Tai Po Hospital in August to September 2002.

58.By the time the specialist examinations started, Madam Yung was presenting with symptoms of memory loss in November 2002, and symptoms of memory loss and severe global cognitive dysfunction in May 2003.  All this information came from Ms Jiang to the authors of the various medical reports.

59.Ms Jiang gave the same kind of history to Dr Chan and she said her mother was having vomiting and fainting attacks from the outset.  Dr Singer was given a similar history, including double incontinence “from the beginning” but he was also told that “about two and a half years ago”, i.e. before the date of his first report dated 24 March 2005, or in about September 2002, the memory and cognitive symptoms started to manifest themselves.  

60.Dr Chan has clearly relied very heavily on what Ms Jiang has told him, in arriving at his diagnosis of conversion disorder, and he has accepted what she said as being entirely true.  He dealt with the apparent truthfulness of Ms Jiang at some length in his 3^rd report and it seems that he relied on this particularly in his evaluation of the difficulty which Madam Yung would have had in producing and maintaining the distressing symptoms complained of, over a three-year period.

61.Dr Singer however took a much less sympathetic view.  He obviously did not entirely believe what the daughter was telling him.  He said that a high index of suspicion is required in evaluating information about symptoms when compensation is involved, and of course this must be right.  As he noted, there is no objective evidence of the very distressful symptoms of which Madam Yung complains.

62.I think perhaps Dr Singer went too far in his suggestion that the ankle oedema which Dr Chan found could easily have been produced by using a tourniquet; the impression is that he was very keen to pick holes in the medical history, as well as in Dr Chan’s opinion, and that he was not being entirely objective.  Dr Chan considered that Dr Singer had an “everything-points-to-malingering mindset”, and that is a possible comment; although it has to be said that from the terms of his later opinions Dr Chan’s own objectivity appeared to be wearing somewhat thin.

63.In fact, Dr Singer found right hand oedema and no ankle oedema in March 2005; he noted in re-examination that if there was really a conversion disorder producing right side paralysis, there should have been oedema in both right limbs.  There was also the absence of limb wasting on the right side; while both specialists agreed that the degree of wasting might be less in conversion disorder than in paralysis with a neurological origin, Dr Singer relied on this as another inconsistency pointing to malingering rather than to conversion disorder.

64.In fact the report of the jointly instructed rehabilitation consultant, Ms Tsang, tends to agree with Dr Singer’s views both on inconsistencies as to the apparent mental state of Madam Yung and as to her real physical state.  I have mentioned these points above.  They are set out in full at pages 20-21 of her report.  There is also the fact of Ms Tsang’s view on the lack of re-arrangement of furniture within the home as suggesting that heavy assistance for the distressing symptoms such as paralysis and being wheelchair-bound, as well as incontinence, was not really required.

65.I have some difficulty with the evidence of Ms Jiang, because of the inconsistencies between what she has told the court and earlier told the doctors and the objective evidence as it appeared in the earlier medical reports, as well as because of the other matters in her evidence to which I have pointed.

66.I accept that, as Dr Chan has said, and as Mr Tang argued in his final submissions, it would be very difficult to feign all the symptoms of which Madam Yung complains, and to feign them over the long period between the accident and the trial.  Also, Ms Jiang gave up her work on the Mainland and came to Hong Kong, where the family now lives on CSSA benefits.  It can be argued with some force that such malingering is unlikely.

67.The difficulty with this argument is first, that the reports of the distressing symptoms such as paralysis and dementia with concomitant incontinence, smearing of faeces and so on come primarily from Ms Jiang, who is not, in my view, reliable.  Second, there is no way to tell whether or not these symptoms really exist, when no one outside the immediate family is watching, particularly in the light of the evidence of Mrs Tsang.  Third, if Madam Yung is, as Dr Singer thinks – and I cannot see any other explanation for the discrepancies to which he refers – inconsistently feigning her symptoms of cognitive and memory disorders, then this points to feigning the neurological disorders as well.  Fourth, Dr Chan has not really explained the cognitive and memory symptoms if they are genuine.  Granted that such symptoms can exist along with conversion disorder, why they should exist along with it here is not explained.  Finally, while it may be argued that the claim, though large, is not worth so many years of malingering, it may be so in the eyes of people who would be in a position to live cheaply in Mainland China, particularly whose the condition need not be feigned full-time.

68.Then we have causation.  If all the symptoms complained of are genuine, which I doubt, they seem to have come on after the apparent ischaemic stroke, 9 months post-accident.  This is what the medical reports seem to indicate and I do not think Ms Jiang’s evidence to the contrary, where it contradicts them, can be accepted.

69.Dr Chan seems to have taken the accident plus an assumed poor marital relationship and the responsibility of having a child of 15 to raise as psychological stressors for the purposes of Criterion B of the DSM-IV list.  He also refers to psychological distress after the accident, as reported by the hospital psychiatrist Dr C K Lum in April 2004; but most of the excerpt which he quotes is medical history “according to her daughter” and findings of irritability and anger in April 2004 do not assist much with the question of what stressors there were in 2001-2002.  In his report dated 19 April 2006 Dr Chan appears to relate these factors to the exacerbation of symptoms 9 months post-accident.

70.The difficulty here is that there is no evidence of a poor marital relationship pre-accident.  Granted that the husband left later, Ms Jiang’s evidence of her father’s departure, and when it happened, is vague and contradictory.  The most definite point is that he moved out towards the end of 2002; but this seems to have been after the Beijing visit and after the exacerbation of symptoms in June 2002.

71.Dr Singer says that no psychological causation could be elicited for conversion disorder; the original accident was not enough, in psychological terms, to cause it and no psychological causation could be found for the later exacerbation of Madam Yung’s condition.  It seems to me that this view is more probably right than that expressed by Dr Chan.

72.Overall, it seems to me that the plaintiff’s case on conversion disorder depends heavily on the truth, not only of what Ms Jiang tells the court, but even more on the truth of the medical histories she has given to the various doctors.  However, I do not find her a reliable witness for the reasons mentioned.  Further, the case is seriously undermined by the factual observations of Mrs Tsang at the family home, as well as by the discrepancies which Dr Singer has referred to but Dr Chan has not adequately explained.

Conclusion

73.Looking at the case overall, I am not satisfied on the balance of probabilities that Madam Yung is suffering from conversion disorder caused by the accident.

74.I turn to consider quantum on that basis.

PSLA

75.The plaintiff’s expert orthopaedic surgeon said that a reasonable period of sick leave for the left shoulder and neck injuries would be 12 to 15 months.  He also said that a course of physiotherapy was necessary.  The defendants’ expert said that sick leave to the end of February 2002, i.e. 6 months was reasonable but did not mention physiotherapy.

76.In their Amended Answer to the Amended Revised Statement of Damages the defendants plead that a reasonable sick leave period would be 12 months and that the award for the mild head injury and mild contusion of the neck and shoulder should not exceed $120,000.  However Mr Sakhrani relied on the cases of Chan Siu Youn v Ng Kam Man & Ors HCPI 533 of 1999 and Leung Siu Ping v Mak Sin Yee & Anr, HCPI 831 of 2000, to argue for an award of $80,000.

77.I will accept a period of 12 months as appropriate for sick leave for the minor injuries and will award $120,000 for PSLA for those injuries.

Loss of Earnings

78.Madam Yung earned $480 per day.  In July 2001 she earned $13,580, which means that she worked for 28 days.  In August 2001 she earned $5,560 which means that she worked for 11½ days.  Those are the only figures available.

79.Ms Jiang explains that in August Madam Yung spent a lot of time on the Mainland in connection with her son’s imminent departure to study in California.  Normally she would go there every 20 days or so for a couple of days and sometimes up to a week.  The impression is that she went quite often to see her children there.

80.The plaintiffs argue that she should normally have worked about 20 days per month given her trips home, statutory holidays, rain days and so forth so that her monthly earnings should be taken as $9,600.  I think this is on the low side and would calculate earnings on the basis of 24 days, i.e. at $11,520.  Applying Mr Sakhrani’s formula the loss for one year would be $11,520 x 12 x 105% (the 5% to allow for loss of MPF benefits) or $145,152.

81.On my finding that I am not satisfied on the matter of conversion disorder, there can be no further award for loss of earnings pre- or post-trial.

Special Damages

82.There is no dispute as to the claims for medical expenses set out at items (a) (d) and (g) of the list in the plaintiff’s Amended Revised Statement of Damages and these come to $1,320.  Mr Sakhrani says that item (n), the claim for disposable diapers is allowable in principle but with respect, I do not see that this can be right if the award is only for the orthopaedic injuries.  As to the claim for tonic food there is nothing to support it and I will allow $5,000 for that.  The rest of the claims are, it appears, related to the conversion disorder and must be disallowed.  The award for special damages is therefore $6,320.

Award

83.The award will therefore be:

PSLA	$120,000.00
Loss of earnings including MPF	$145,152.00
Special damages	$6,320.00
Total	$271,472.00
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Judgment

84.There will be judgment for the plaintiff against the defendants for $271,472.00 with interest on the PSLA at 2% p.a. from the date of the Writ and on the loss of earnings and special damages at half the judgment rate from the date of the accident, both until the date of the judgment and thereafter at the judgment rate until payment.

85.In view of the paucity of the award, instead of making a costs order nisi I direct the parties to make an appointment to be heard on costs as soon as possible.

Mr Ronald Tang, instructed by Messrs Lau & Chan, assigned by Director of Legal Aid, for the Plaintiff

Mr A Sakhrani, instructed by Messrs Y C Lee, Pang & Kwok, for the 1^st and 2^nd Defendants