Cheung Oi Yan Ruby v. Wong Hoi Sum

HCPI 981/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 981 OF 2007

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BETWEEN

Coram : Master de Souza in Court

Dates of Hearing : 24 & 25 March, 25 July and 5 August 2011

Date of Handing Down Judgment : 1 November 2011

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JUDGMENT

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I. INTRODUCTION

1.An accident befell the Plaintiff on 22 November 2004 as she was travelling on the offside rear passenger seat of a 7-seater private car along Sheung Yuet Road towards Wang Kwong Road.  A taxi driven by the Defendant suddenly emerged attempting to make a right turn into Sheung Yuet Road and in the process collided with the nearside of the private car causing injuries to the Plaintiff.  Then aged 27 (and now 34), the Plaintiff sustained injuries. Judgment on liability was entered against the Defendant with damages to be assessed pursuant to a consent order dated 21 December 2007.

II. THE PLAINTIFF’S INJURIES AND TREATMENT

2.The Plaintiff attended the Accident and Emergency Department (A & E Department) of United Christian Hospital (UCH) on the day of the accident.  The report of Dr. Lai Kin Bon dated 17 August 2007 noted that the Plaintiff’s right parietal area of the head came into contact with the window and her right shoulder and neck were injured by the seat belt.  There was contusion over her lower back leading to pain over the respective area.  Physical examination revealed localized tenderness over her right shoulder, neck and lower back. Radiographs of her neck and back were normal.  As observed, “the rest of physical examination was unremarkable”.  There was no loss of consciousness, nausea or vomiting, but transient dizziness and headache were noted.  The Plaintiff was treated with dologesic and analgesic balm and discharged on the same day.  The diagnosis would suggest that the Plaintiff had suffered relatively minor contusions in the accident.

3.Following discharge, the Plaintiff came under the care of Dr. Wai Pui Sze of St. Theresa Hospital.  The clinical notes contain similar findings but make no reference to any complaint of back pain.  However, on 26 November 2004, the Plaintiff was seen again at the A & E Department of UCH for right shoulder sprain and back pain.

4.On 9 December 2004, the Plaintiff attended the A & E Department of Tseung Kwan O (TKO) Hospital complaining only of persistent low back pain.  She made no mention of headaches, persistent or otherwise, neck or shoulder pain or numbness or weakness in her limbs as she would as time progressed.  The ensuing report noted that she did not experience any limb weakness or numbness, her general condition was good and the neurological examination was unremarkable. The diagnosis was low back pain for which oral painkillers were prescribed. Sick leave was granted from 9 through 11 December 2004.  Again, it would seem that her complaint was of a minor nature.

5.Some 6 months later on 21 June 2005, the Plaintiff visited the A & E Department of Queen Elizabeth Hospital (QEH) complaining of “right sided headache since 18:00 hours that day”.  She was examined by Dr. Wong Tat-Ming, Ronald who noted that her general condition was satisfactory.  She was given an analgesic injection that relieved her headache.  The neurological examination was normal and the clinical diagnosis was headache.

6.On 1 February 2007, the Plaintiff attended the A & E Department of Prince of Wales Hospital (PWH).  Her general condition was said to be satisfactory with weakness of both arms and legs according to Dr. Ng Wai Hung.

7.The Plaintiff was examined again at the same hospital on 26 March 2007. The findings noted by Dr. Tai Chun Kuen were:

1) Collapse with loss of consciousness for few seconds.

2) Low back pain all along after traffic accident 2 years ago.

3) Right leg numbness and weakness all along.

4) Tenderness over lumbar spine.

5) Decrease in power of right leg.

6) Positive straight leg raising test over right side.

8.Dr. Luk On Yan, Andrea of PWH noted in her report of 14 August 2008 that the Plaintiff was a patient of the hospital since June 2007 for episodic loss of consciousness.  She was last seen there on 20 December 2007.  It was further noted that she had a history of congenital emphysema of left lower lobe, alpha thalassaemia trait (both of which conditions appear unrelated to the accident in my view) and of road traffic accident resulting in lower back injury.  The physician recorded that the Plaintiff was admitted to the Orthopaedic Ward following a sudden loss of consciousness and that she had admitted to episodic loss of consciousness usually preceded by dizziness and lower back pain.  No seizures were witnessed.

9.It can be discerned from the aforementioned public and private sector medical reports prior to February 2007 that the Plaintiff’s injuries were not especially serious although she clearly experienced inconvenience, pain and discomfort for which treatment and sick leave were appropriately prescribed.  Then came a new development.

10.On 29 March 2007, the Plaintiff underwent an MRI scan of her lumbar spine at PWH.  The examination revealed that there was moderate disc degeneration present at L4/5 with the remainder of the lumber intervertebral discs being quite well preserved.  The disc degeneration was associated with a large central posterior annular tear.  Noted also was a small central to left para-central disc protrusion that was encroaching upon but not compressing the left L5 nerve root.  The discs at L5/S1 were contained with neither disc prolapse nor nerve root compression.  The diagnosis was moderate disc degeneration at L4/5 with posterior annular tear and non-compressive central to left para-central disc protrusion.  These fresh findings raised the question of causation, a matter of some controversy in the case.  I shall revert to it later when the medical expert evidence falls to be assessed.

iii. THE PLAINTIFF’S EVIDENCE

11.At the time of the accident, the Plaintiff was working as a second hand car sales agent with Golden Century Motors Company Ltd (Golden Century).  Her employment with Golden Century began on 6 October 2003 and ended on 23 August 2006 when she resigned of her own accord.  Within two weeks of the accident on 2 November 2004, the Plaintiff was back at work full time.  Her job entailed servicing customers by driving vehicles to them for test drives.  She was also responsible for the paper work for cars sold.

12.She received a basic salary of $3,000 per month plus commission.  It is clear that the major portion of her earnings was derived from commissions through sales she successfully handled.  Her tax return for 1 April 2004 to 31 March 2005 showed income of $113,605.00 or an average of less than $10,000.00 a month for the period.  In the following tax year (April 2005 to end March 2006), her monthly income was averaging $18,448.08, a substantial increment over the preceding period.  Between 1 April 2006 and 23 August 2006 when she suddenly resigned, her average monthly remuneration was just under $20,000.00. It can therefore be seen that her income was on the rise since the accident, a matter the Plaintiff conceded.  It is equally clear that not only was she earning greater commissions from selling used cars than before the accident but that she had continued to apparently perform well and successfully in that role for over 1 ½ years after the accident.  When she left, Golden Century issued her a glowing reference letter.  So why did the Plaintiff choose to terminate her employment abruptly in August 2006?

13.It is the Plaintiff’s claim that the sequelae of the injury sustained in the accident have effectively made it difficult if not impossible for her to cope at work.  She claimed to be under severe disability and barely functioning.  She said “When I quitted this job, my mood was getting worse.  I hid myself at home.  I did not want to see anyone and I did not look normal.  I was only in my 20s, and I did not look normal when I walk”.

14.Her extensive complaints run to 14 symptoms, not all of which were manifested or present at the same time.  They were said to trouble her in different combinations and at different times.  What seems clear is that she had just several of these symptoms in the immediate aftermath of the accident. As time progressed, other problems surfaced adding to her woes.  If anything, her condition allegedly markedly deteriorated over time.

15.The list of her symptoms are :-  a) pain in the lower back aggravated by sitting, standing or walking for some ten minutes; b) numbness in the lower limbs particularly the right leg; c) pain in the neck; d) upper limb numbness especially in right arm; e) frequent urination; f) headaches when nervous or during concentration; g) dizziness with fainting spells many times at work; h) insomnia; i) nervousness; j) inability to stay focused; k) emotional and given to loss of temper; l) lack of proactivity; m) feeling depressed; and uncomfortable feelings in many areas of the body.

16.The public and private sector reports which I have briefly summarized earlier paint a very different picture.  For instance, when the Plaintiff attended the TKO Hospital on 9 December 2004, low back pain aside, she made no recorded complaints of headaches, shoulder or neck problems or numbness, weakness or other symptoms in any of her limbs.  These same hospital notes also do not begin to corroborate her assertion that she had, post accident, suffered persistent severe headaches and fainting spells.  The QEH notes of her visit on 21 June 2005 noted what seemed no more than a transient headache.  No dizziness was noted on that occasion.  The first recorded complaint of weakness in all four limbs occurred in February 2007, well over 2 years after the accident.  In the following month, on 26 March 2007 a new complaint of loss of consciousness was introduced.

17.It is her case that she suffered from low back pain and right leg numbness and weakness “all along” after the accident, an assertion at odds with the hospital notes referred to.  Such complaints are also inconsistent with her failure to regularly seek medical treatment.  When taxed, she maintained that it was difficult to get time off work in 2005 and 2006 although she did consult two family doctors and did incur heavy expenses of between RMB 20,000.00 to 30,000.00 monthly on visits to Shenzhen for acupuncture treatment.  She has not pursued a claim for these expensive cross-border treatments.

18.The Plaintiff maintained under cross-examination that she did inform the treating doctors of her various complaints and symptoms which for some reason went  unrecorded.   This I do not accept as likely to have happened.

19.From the analysis to follow of the expert orthopaedic and neurological assessments and the video surveillance it will be readily apparent that I find her evidence wanting.

IV. THE ORTHOPAEDIC EXPERTS

20.The joint report of Dr. Johnson Lam for the Plaintiff (Dr. Lam) and Dr. Lee Po Chin for the Defendant (Dr. Lee) indicates a consensus that the Plaintiff had suffered soft tissue injuries in the accident.  There was disagreement on the back symptoms and in particular on the cause of the large annular tear, the disc protrusion and moderate disc degeneration at L4/5 revealed for the first time by the MRI examination on 29 March 2007, 3 days after the Plaintiff’s fainting episode and fall in the toilet.

21.Dr. Lam opined that considering the Plaintiff’s relatively young age, the natural degenerative process was the unlikely cause of the new clinical findings.  The fall in the syncope attack shortly before the MRI examination in his view could also be ruled out as the culprit.  He concluded that it was likely that the accident had caused injury to the L4/5 discs, resulting in a large annular tear and hastened disc degeneration and that but for the back injury, the Plaintiff would have continued to enjoy satisfactory and painless function in her back.  Dr. Lam also found that the Plaintiff tested positive in a number of Waddell’s tests that suggested “a probable element of symptom magnification”.  In my view, it is therefore important to scrutinize the Plaintiff’s multitude of complaints to determine whether they were justified, exaggerated or merely feigned.

22.Dr. Lee agreed that there was low back pain immediately following the injury.  He fairly conceded that there was no history of such pain prior to the accident.  In his view, the accident could have caused soft tissue injury to the back.  However, having reviewed the medical notes, he noted that there was no evidence the Plaintiff did suffer from persistent back pain.  He further observed that on 24 July 2005 she consulted QEH for right side weakness and right sided trunk pain but did not seek treatment for low back pain again until October 2005.  In his view, since back pain was a common condition affecting persons of similar age to the Plaintiff’s, it was possible that the back pain in October 2005 was due to reasons other than the alleged injury.

23.He also noted that her major complaint of back pain occurred after the syncope attack on 27 March 2007 when she fell in the toilet, so there was likely to be an additional injury to the low back that contributed to the current back problem.

24.As regards the annular tear, he fairly admitted that it was impossible to say when it had occurred.  However, as the Plaintiff had an additional injury on 27 March 2007, he opined that it was possible that the new injury had caused the annular tear.

25.The Plaintiff’s own expert agreed that the Plaintiff should be able to return to her pre-accident job as car salesperson or be employed in jobs of similar nature.

26.Dr. Lee noted that the Plaintiff was complaining at the time of the joint examination of severe pain with numbness of lower limb.  The examination revealed an absence of muscle spasm but positive Waddell’s indication.  In his opinion, the joint examination did not support a finding of significant back pain.

27.As for the soft tissue injury to the neck, Dr. Lee considered that the resulting pain would probably have subsided and left no residual significant deficit.  He noted that the medical notes and reports showed that apart from the early consultations, there was no further report on management of the neck pain.  Both Dr. Lam and Dr. Lee agreed that any residual neck pain would be mild at worst.

28.Both experts agreed that significant residual impairment and disability in the right shoulder were not expected.

29.On a fair and objective assessment of the findings of the orthopaedic experts, in light of the Plaintiff’s noted propensity to exaggerate her symptoms at the joint examination, I am not satisfied on a balance of probabilities that the lower back condition revealed by the MRI was causally connected with the accident.

V. THE NEUROLOGICAL EXPERTS

30.The neurologists were Dr. Robert TK Ho for the Plaintiff (Dr. Ho) and Dr. Edmund KW Woo for the Defendant (Dr. Woo).

31.Dr. Ho opined that the Plaintiff had suffered a mild traumatic brain injury in the accident.  This was very likely caused by a whiplash type injury.  In his view, the Plaintiff now has symptoms of persistent post concussion syndrome manifesting itself as headaches and psychiatric morbidity. Her episodic sensory and motor symptoms with loss of consciousness were almost certainly due to hyperventilation or panic attacks triggered off by the head injury.  Her depression has shown some improvement with changed medication and her headaches have also improved, becoming less frequent and occurring but once or twice a week.

32.He considered that it was highly unlikely that she could resume work as a second hand car salesperson, a mentally and physically demanding profession that could well trigger off more severe symptoms of hyperventilation, depression and headaches.  In his view, she was fit for simple clerical work.

33.Dr. Woo opined that the Plaintiff had at most a very mild head injury with only soft tissue injury to the head and face unaccompanied by any cerebral injury or intracranial pathology.  Her neurological examination revealed many unusual features.

34.The plaintiff demonstrated diffuse weakness in the right upper extremity.  A neck injury with a cervical radiculopathy (lesion in the nerve root) would account for her weakness in the right upper extremity.  If this was genuine, it would indicate an extensive lesion spanning from C5 down to T1 nerve roots.  Yet there was no muscle wasting or sensory loss while all the deep tendon reflexes were preserved.  The head turning and leg raising tests showed up discrepancies and inconsistencies defying neurophysiological principles.  In his opinion they strongly suggested that her deficits were either feigned or grossly exaggerated.

35.As for her complaint of constant headache since the accident, there was no corroborative material to support it.  Constant unremitting headaches lasting for years were most inconsistent with the mild nature of her head injury (soft tissue injury without cerebral damage).

36.Regarding the Plaintiff’s attacks of loss of consciousness, Dr. Woo opined that the clinical characteristics of these attacks strongly indicated that they were syncopal in nature and as such not neurological in nature and not caused by the accident.  On the clinical data available to him that included the hospital records, Dr Woo firmly concluded that there was no cerebral injury and no residual neurological disability.  There was no impediment preventing the Plaintiff from resuming her pre-accident occupation.

37.I prefer the assessment offered by Dr. Woo.  Of the two experts, he has rendered a more carefully reasoned and detailed assessment that took into account not only his own findings and observations during the examination but also the detailed medical history of the Plaintiff as recorded in the medical notes.  His analysis displayed objectivity that was clearly absent from Dr. Ho’s.  Dr. Ho appeared to have relied heavily on the assertions of and account given by the Plaintiff without undertaking a forensic analysis with reference to the documented medical history.  As regards the Plaintiff’s allegation of attempted suicide at work in January 2006 of which no mention was made in her witness statements, Dr. Ho referred to a scar on the Plaintiff’s wrist but he singularly failed to take into account the total absence of any medical treatment or records in that regard.

VI. THE SURVEILLANCE EVIDENCE

38.The video captures were made over two periods, namely between April and May 2009 and between 12 and 14 August 2010.

39.As noted, the Plaintiff’s evidence is that following injury to her neck, shoulder, lower back and head, she was left with significant residual disability affecting her daily life and ability to work.

40.When the Plaintiff gave evidence in court, she appeared subdued, almost sullen.  She would shift her position in the chair from time to time, giving an impression that she was not physically comfortable or was experiencing discomfort or pain.  I do however accept that the process of testifying can indeed be a daunting and uncomfortable experience.  That accepted, a very different presentation is offered in the surveillance recordings.

41.The Plaintiff was secretly followed and videotaped on a number of occasions as she went about her daily affairs.  She appeared no different from any other normal individual.  There were no signs of pain, discomfort, impaired mobility or hyperventilation as asserted.  She was able to negotiate steps and escalators and get on and off trains and vehicles with no difficulty.

42.The Plaintiff was able to walk normally and even briskly at times. Despite her complaint of serious back pain and numbness in her limbs, she managed to go about her daily routine wearing platform heels.  She was seen wholly absorbed texting on her cell phone on the bus and train whilst standing without holding on to the handrail for support despite her claim of lack of concentration and other difficulties.  Her posture and balance were good and as to be expected of a normal person.

43.She was able to carry bags on her shoulders and squat with ease to unlock the door of Crystal de Beaute.  In the restaurant segment, she was thoroughly enjoying herself in the company of two friends, talking animatedly, smiling, laughing and eating and gesticulating with her hands.  These unguarded moments render her complaints most unreliable and suspect in my view.

44.I am persuaded on the evidence to find that the Plaintiff has grossly exaggerated the nature and extent of her injuries.

VII. THE MITALIAN COLLECTION

45.The Plaintiff and a friend set up a business called Mitalian Collection and opened a bank account from which payments were made to both of them.  It is her case that no business was ever conducted since registration of the business at a time when her condition was said to be worsening.  She admitted to being a partner from 27 October 2006 to 31 January 2007.  It will be recalled she quit Golden Century on 23 August 2006.  If she had serious disability as she averred and had to leave her agent’s job, why did she register a business venture shortly thereafter?  She endeavored to explain that the idea came from her parents who wanted her to have something to occupy her time and energy instead of moping at home.

46.In her answers to requests for further and better particulars of her answers to interrogatories, she was asked to explain various cheque payments for odd amounts to her.  She said they were payments from her father to cover her living and credit card expenses.  If indeed the payments were parental contributions, one would expect them to me in whole amounts rather than in sums with odd cents.

47.I find her evidence concerning Mitalian Collection suspicious to say the least.

VIII. SALE OF THE NK6681 NISSAN CAR

48.The Plaintiff was clearly involved as seller in the sale of this Nissan Elgrand vehicle to Mandarin Films Ltd for $238,000.00 plus transfer and registration fees.  On 5 August 2008, a sum of $239,000.00 was paid into her account by the purchaser.  She said it was a sale by her husband who had simply used her name to avoid his employer being apprised of his breach of trust.  She said it was not her own transaction and she had simply acted as conduit to facilitate the sale.  There is no other evidence that she was involved in any other car sales apart from this isolated transaction since her resignation from Golden Century.  The veracity of her explanation must be assessed against the PWH record dated 27 March 2007 which recorded her occupation as “Car Sales”. The record was made some months after she left Golden Century.  She said it was her husband who had provided this information to the hospital.  I find her explanation quite unsatisfactory.

IX. PAIN, SUFFERING AND LOSS OF AMENITIES

49.On my assessment of the evidence, I conclude that the Plaintiff did not suffer the extensive injuries and serious and persistent disability that she attempted to present.  She sustained no more than soft tissue injury that responded well to treatment as can be seen in the hospital notes and from the assessment of Dr. Lee and Dr. Woo whose findings I have preferred and accepted.  The Plaintiff has plainly failed to establish that the MRI findings were related to the accident.  The chain of causation was not proved on a balance of probabilities.  The accident did not leave any significant effect on her well-being, nor did it prevent her returning to work productively within two weeks of the accident as indeed was the case.

50.Counsel submitted a number of decisions on quantum.  These I have read. Two decisions cited by the defence are particularly apt.  They are Tam Yuen Hoi v Chan Muk Sing & Ors [2003] HKLRD K16 and Limbu Saram Kumar v Cheng Man Chung [2006] 3 HKLRD G10.  I consider that an award of $100,000.00 appropriate under this head of claim.  I so order.

X. PRE-TRIAL LOSS OF EARNING AND LOSS OF MPF

51.There is evidence, which I accept, that sick leave of 3 to 4 months following the date of the accident would have sufficed for the injury that I found the Plaintiff to have suffered.  The reality is of course that the Plaintiff returned to work within two weeks of the accident and on the evidence suffered no loss of earnings.  She remained in employment with Golden Century until 23 August 2006 after which she resigned for reasons best known to herself and unconnected in my judgment with the accident or her injury.  Accordingly, the claim for past earning and MPF losses has not been made out.  There will be no award under this head.

52.If I were wrong in assessing the nature and extent of the Plaintiff’s injury and impediment, pre-trial losses must follow.  Her counsel submitted that she would have been able to earn $20,000.00 a month from September 2006 to date plus MPF of 5% on her earnings.  This I accept.

XI. POST-TRIAL LOSS OF EARNINGS AND LOSS OF MPF

53.For obvious reasons, no award is warranted under this head of claim.

54.If an award is appropriate, I would adopt a multiplier of 13 to a multiplicand of $12,000.00, it being conceded that the Plaintiff should be able to command a minimum wage of $8,000.00 a month.  The MPF loss will simply be an additional 5% on that award.

XII. LOSS OF EARNING CAPACITY

55.An award is only justified if there is evidence that the Plaintiff has been exposed to an added risk of longer periods of unemployment between jobs in the future as a result of her injuries.  There is no evidence in this case in light of my findings to warrant compensation under this head.

XIII. SPECIAL DAMAGES

56.The Plaintiff claims $15,000.00 for medical expenses, $20,000.00 for herbalist and bonesetter treatment, and $10,000.00 each for travelling expenses and tonics.  I am prepared to allow no more than $25,000.00 under this head. Future treatment costs claimed at $20,000.00 are unwarranted and accordingly refused.

XIV. SUMMARY OF AWARDS

57.Summary of Awards:

XV. CONCLUSIONS

58.There shall be judgment in the sum of $125,000.00 with interest at 2% p.a. on the award for PSLA from the date of the service of the writ until the date of judgment and interest at half the judgment rate from the date of the accident until the date of judgment on special damages.

59.The Plaintiff shall have her costs of the assessment including any costs reserved in respect thereof with certificate for counsel, taxed if not agreed. There shall also be legal aid taxation of the Plaintiff’s own costs.

60.In my judgment, as there appears no reasonable prospect of claiming quantum in excess of the District Court jurisdiction on the evidence of this case, I further order that the costs ordered be on the District Court Scale. The cost order is nisi with 14 days to apply.

Mr. Patrick D. LIM instructed by Messrs. Ambrose Ng & Co. for the Plaintiff.

Mr. Ashok Sakhrani instructed by Messrs. Y.T. Chan & Co. for the Defendant.

Please refer to CACV259/2011 for the relevant appeal(s) to the Court of Appeal.