SO LOY HING v. THE KOWLOON MOTOR BUS CO (1933) LTD

HCPI 910/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 910 OF 2011

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is an assessment of damages for personal injuries.

2.  The plaintiff was employed by the defendant as a bus captain.  On 7 February 2009, just a few days after the plaintiff had commenced his employment with the defendant, he met an accident at work.  He slipped and fell whilst he was walking to a “duty-assignment” room in a bus depot in Tuen Mun (“the subject accident”).  As a result of the subject accident, the plaintiff sustained low back injury and was ambulanced to Tuen Mun Hospital (“TMH”) for treatments.

3.  Medical examination of the plaintiff showed that he had tenderness over the right hip.  X-rays of his pelvis, right hip, chest and lumbosacral spine revealed no abnormality.  Because of complaints of low back pain, he was referred to the Orthopaedic and Traumatology Department (“O&T Department”) for management of his back pain.  He was hospitalized for 6 days from 7 February 2009 to 13 February 2009.  He was also referred to the physiotherapy and occupational therapy department of TMH for treatments.  The plaintiff had also consulted private doctor for treatment of his low back pain.  He was granted sick leave for over 2 years.

4.  It is not disputed that the plaintiff had sustained injuries in the course of his employment.  As such and by consent of the parties, interlocutory judgment on liability was entered against the defendant with damages to be assessed.

5.  It is the plaintiff’s case that because of his persistent low back pain and the numbness to his legs, he could not return to his pre-accident job as a bus captain.  The plaintiff is considered to be more suitable to take up jobs such as security guard or petrol station attendant.

6.  Mr Ng, counsel for the plaintiff, referred the court to the Certificate of Permanent Unfitness (ie Form 1), the Orthopaedic and Traumatology Rehabilitation Outcome Reports, the Occupational Therapy Report and the expert opinion of Dr Peter M K Tio (“Dr Tio”) in support of the contention that the plaintiff cannot return to his pre-accident job.  Dr Tio is the orthopaedic expert for the plaintiff.  He had compiled a joint expert report with Dr Wong Kwok Shing Patrick (“Dr Wong”), orthopaedic expert for the defendant.

7.  The defendant disagreed with the plaintiff’s case.  It is submitted on behalf of the defendant that the plaintiff is a malingering claimant.  He has exaggerated his pain and disabilities with a view to inflating his claim for damages.  The defendant contended that the alleged pain and disabilities are all subjective complaints of the plaintiff which are not supported by any objective medical evidence or pathology.

8.  Ms Loh, counsel for the defendant, also attacked the credibility of the plaintiff.  She submitted that the plaintiff is not a credible and truthful witness at all.  She referred the court to another injury at work that the plaintiff had had on 10 March 2004 (“the 1^st accident”).  She submitted that both accidents, ie the 1^st accident and the subject accident have a lot of similarities namely: -

(a) both accidents occurred shortly after the plaintiff had commenced a new employment;

(b) the plaintiff suffered back injuries in both accidents but the alleged pain and injuries are not supported by objective medical evidence; and

(c) the plaintiff went on extended sick leave after both minor accidents.  He did not resume any work but had sought and received substantial sick leave payments and compensations.

9.  It is submitted on behalf of the defendant that the plaintiff has only sustained soft tissue contusion to his buttocks and that he should be able to return to his pre-accident job.  The defendant relied on the expert opinion of Dr Wong in support of such contention.

10.  Thus, the main issues to be decided by the court are: -

(a) What injuries and disabilities that the plaintiff had sustained as a result of the “slip and fall” accident, and

(b) Whether the injuries and disabilities suffered by the plaintiff have prevented him from returning to his pre-accident job as a bus captain.

BACKGROUND

(a)  Personal particulars

11.  The plaintiff is aged 44 at the time of the hearing.  He was born in Hong Kong and married with 2 children.  He received education up to Form 5 level.  It is said that prior to his employment with the defendant as a bus captain, he had worked as a light goods vehicle driver.  According to the plaintiff, he used to go swimming, cycling and playing basketball before the subject accident.  He claimed that after the subject accident, he could no longer engage in such sports and activities which he had formerly enjoyed during leisure time.

12.  The plaintiff resides in a flat in Tin Shui Wai, New Territories with his wife and 2 children.  Both his children are studying in the same school in Tuen Mun.  The elder daughter aged 10 is studying primary 5.  The younger son aged 8 is studying primary 3.

13.  The plaintiff’s mother, who is aged 77, lives in Kwai Chung.  It is said that the mother travels nearly everyday from her home in Kwai Chung to Tin Shui Wai to take care of the plaintiff’s children.

(b)  The 1^st accident

14.  It is not disputed that on 10 March 2004, the plaintff had a sprained back injury at work.  This was less than a month after he had commenced his employment with the Hospital Authority as a health care assistant.  The plaintiff claimed that he twisted his back when he was pushing a hospital bed with a co-worker.

15.  Medical examination showed pain over his back but x-ray revealed no bony lesion.  At first, sick leave was granted to the plaintiff intermittently.  Later and because of his complaints of increased and persistent low back pain, he was granted continuous sick leave.

16.  On 15 February 2005, due to complaints of aggravation of symptoms, the plaintiff was admitted to TMH for investigation and treatment.  He was hospitalized for 10 days until 25 February 2005.

17.  In about mid-2005, the plaintiff was diagnosed as suffering from moderate depressive episode.  He was referred to psychiatric and psychotherapy treatments.  Because of his depression, further sick leave was granted until 2 June 2006.

18.  For the 1^st accident, and according to the hospital records and sick leave certificates, the plaintiff was granted sick leave for a total period of about 2 years ie from 5 April 2004 to 8 April 2004, from 17 May 2004 to 20 May 2004, from 20 July 2004 to 23 July 2004, from 3 October 2004 to 6 October 2004, from 8 October 2004 to 10 October 2004, from 20 January 2005 to 20 January 2006, and from 20 January 2006 to 2 June 2006.

19.  Under cross-examination, the plaintiff confirmed that his 2-year contract with the Hospital Authority was not renewed after its expiry.  He stated that he had not returned to work for the Hospital Authority since October 2004 and during the whole sick leave period.  He had received full payment for the sick leave period and a net sum of $360,000 in settlement of his claim against the Hospital Authority.  After his employment with the Hospital Authority was terminated, the plaintiff started to receive Comprehensive Social Security Assistant (“CSSA”) from about mid 2006 until about May 2009 ie a few months after he had commenced his employment with the defendant.

20.  The plaintiff confirmed under cross-examination that his wife had also sustained back injuries at work whilst under employment with the Hospital Authority. This was in 2010.  They both had received full pay from the Hospital Authority during their sick leave.  They were also granted legal aid to sue the Hospital Authority for compensation in respect of their injuries sustained at work.  He also confirmed that after his wife had sustained injury at work, she has not been working apart from giving private tuitions occasionally.

21.  The parties do not dispute that the plaintiff had recovered from his injuries caused by the 1^st accident and that the injuries sustained by him in the 1^st accident had not rendered him incapable of working as a bus captain.  The plaintiff was physically fit to undertake the job.

22.  It is also not disputed that before the plaintiff commenced his employment with the defendant, he had undergone and passed a 18-day training program organized by the defendant’s training school.  He was certified fit to be a bus captain by the defendant’s doctor.  He had also passed the driving test conducted by the Transport Department and obtained a bus driving licence.

(c)  The plaintiff’s terms of employment

23.  The plaintiff signed a written contract of employment with the defendant on 29 January 2009.  The employment was for a period of 2 years commencing from 31 January 2009 to 30 January 2011.  Upon expiry, the contract could be renewed at the discretion of the defendant.

24.  The plaintiff’s employment was also subject to a 6-month probation period.  It could be extended by the defendant in accordance with the work performance of the plaintiff.

25.  As a bus captain, the plaintiff was entitled to a basic monthly salary of $7,250.  Upon satisfying the prescribed requirements, he was also entitled to claim for “safe-driving” bonus and “good service” bonus up to a maximum of $1,517 per month for each bonus.  He was not entitled to “year-end” bonus nor “lunar new year” bonus.

26.  As a bus captain, the plaintiff was required to work 8 hours a day.  He may also be required to work morning shift, night shift (夜更), special shift (特別更) or overnight shift (通宵更).  If he was required to work overnight shift, he would be paid a monthly allowance of $1,974 on a pro-rata basis depending on the number of overnight shift that the plaintiff had done.  The plaintiff would also be entitled to overtime pay if he was required to work overtime.

27.  According to the Service Handbook for Outdoor Bus Operation Staff (車務外勤員工服務手冊) (the “Service Handbook”), the plaintiff was also entitled to free bus travel benefit for himself and his family.  Upon retirement, he would also be entitled to long service payment, farewell money, a gold medal and death gratuity (帛金) to be collected by the defendant on behalf of the plaintiff.

28.  According to the Service Handbook, the normal retirement age for bus captain is set at 60.  However, the defendant may allow an employee to work beyond aged 60 if he could pass the medical examination.

29.  It is to be noted that although the plaintiff commenced his employment with the defendant on 31 January 2009, he was absent on his first day of work due to sick leave.  He only began his employment with the defendant on 1 February 2009.  The plaintiff had returned to work on 2, 4 and 5 February 2009 but reported sick again on 6 February (3 February was his rest day).  When he returned to work in the morning on 7 February 2009, he met the subject accident.  Since then, the plaintiff had not resumed work for the defendant nor has he engaged in other employment as at the date of the assessment hearing ie for a period of over 5 years.  For the 4 days of work, the plaintiff was paid a sum of $2,097.47 as his wages.

(d)  Summary dismissal

30.  On 9 November 2010, the plaintiff was summarily dismissed by the defendant due to unexplained absence from work.  It is the defendant’s case that during the period from 21 September 2010 to 5 November 2010, the plaintiff had without reason failed to report duty nor had he submitted any sick leave certificate.  The defendant described the situation as “不假不到”.  After his dismissal, the plaintiff lodged a claim for wrongful dismissal against the defendant in the Labour Tribunal (“the Tribunal”).  He sought compensation in the total sum of $7,669,467.00.  This includes a claim for loss of free bus travel benefit for himself and his family members in the sum of $1,888,000.00.

31.  The plaintiff’s claim was dismissed by the Tribunal save that the Tribunal made an award that the plaintiff was entitled to a sum of $1,677.96 which represents his annual leave pay and unpaid sickness allowance.  Such sum was to be set off against the costs payable by the plaintiff to the defendant in the total sum of $10,500.  According to the defendant, the plaintiff has not paid the outstanding costs of $8,822.04 after the set off.

32.  According to Mr Huen Yun Kong (“Mr Huen”) the witness called by the defendant, the plaintiff’s claim was dismissed because the Tribunal did not accept his assertion that he had submitted all the relevant sick leave certificates to the defendant by post in about September and/or October 2010.  The Tribunal rejected his assertion as one of the sick leave certificates was issued on 1 November 2010.  It was therefore not possible for the plaintiff to have sent that sick leave certificate issued on 1 November 2012 in September or October 2010.

33.  The plaintiff applied for a review of the decision of the Tribunal but his application was rejected.  He applied to the High Court for leave to appeal against the decision of the Tribunal, his application was also dismissed by Madam Justice Au-Yeung on 23 November 2012.

(e)  The various heads of claim by the plaintiff

34.  In the Re-Revised Statement of Damages filed by the solicitors for the plaintiff dated 8 April 2013, the plaintiff sought damages in the total sum of $6,523,119.89.  The damages sought are basically a repetition of most of his claims in the Tribunal.  These include the following heads: -

(a)	Special Damages
	(i) medical expenses	$32,484.97
	(ii) travelling expenses	$12,000.00
	(iii) expenses for walking aids	$316.00
	(iv) tonic food, pain relief plaster and ointment	$32,114.00
	(v) unclaimed salary	$5,026.80	$81,941.77
(b)	Past Loss of Earnings		$876,332.43
(c)	Past Loss of MPF Contribution		$43,816.62
(d)	Future Loss of Earnings		$2,204,838.14
(e)	Loss of Future MPF Contributions		$110,241.91
(f)	Loss of Earning Capacity		$39,000.00
(g)	Loss of Free Bus Travel Benefit (Pre-Loss and Post trial Loss)		$1,659,826.09
(h)	Loss of Death Gratuity		$30,000.00
(i)	Loss of Farewell Money		$20,000.00
(j)	Loss of Value of Gold Medal		$16,000.00
(k)	Loss of Lunch Allowance for bus captain receiving training		$3,000.00
(l)	Loss of Night Shift (ie Overnight Shift) Allowance and Employer’s MPF contribution thereon		$637,479.61
(m)	Loss of Long Service Payment		$300,643.32
(n)	Pain, Suffering and Loss of Amenities		$500,000.00
	Total:		$6,523,119.89 (plus interest)

35.  In the opening submissions of Mr Ng, he confirmed that the plaintiff would abandon the claim for long service payment.

36.  For the special damages claim in the sum of $81,941.77, the plaintiff accepted a sum of $23,000 proposed by the defendant in its Answer to the plaintiff’s Re-Revised Statement of Damages.

37.  The plaintiff also agreed to give credit for the Employee’s Compensation he received in the sum of $595,263.26.

THE CREDIBILITY OF THE PLAINTIFF

38.  At the hearing, the plaintiff adopted his witness statement dated 6 June 2012 as his evidence-in-chief.  He was cross-examined at length on the various aspects of his evidence as well as on the various heads of claim by him. Having heard and evaluated the plaintiff’s testimony in the context of all evidence.  I have no hesitation in finding the plaintiff as an evasive, untruthful and unreliable witness.

39.  His evidence is tainted with gross exaggeration especially on his injuries and disabilities (for which I shall deal with it in more detail in the latter part of this decision).  I find that some of his evidence are not only unconvincing but also contrary to contemporaneous documentations.  I find that if the plaintiff was unwilling to give direct answer to straightforward questions asked, he would say that he could not remember.  He simply pleaded forgetfulness.

40.  I do not find the plaintiff as an honest witness at all.  He was discredited under cross-examination.  This can be demonstrated by the evidence and answers he gave under cross examination.  The following are some of the examples.

(a) alleged urinary incontinence

41.  After the accident on 7 February 2009, the plaintiff had undergone various treatments at TMH.  He had attended inter alia physiotherapy and occupational therapy treatments.  Because of complaints of persistent low back pain, he was granted continuous sick leave for over 18 months which ended on 20 September 2010 (ie the day on which the plaintiff had a review of assessment by the Employees’ Compensation (Ordinary Assessment Board) (“Medical Assessment Board”).  However, on the same day, the plaintiff went to consult Dr Lau Sing Ki Kenric (“Dr Lau”), a private doctor for treatment of his low back pain.  He also for the first time and some 18 months after the subject accident, complained to Dr Lau that he had urinary incontinence.

42.  On 18 May 2011, when the plaintiff attended the joint medical examination by Dr Tio and Dr Wong (collectively “the experts”), he also told the experts that he had urinary incontinence 3 months after the subject accident.

43.  As pointed out by Ms Loh, the alleged urinary incontinence by the plaintiff is totally inconsistent with the medical records.  She submitted that there is no mention of urinary incontinence in any of the hospital reports or records from the date of the accident up to 20 September 2010 ie the date that he first consulted Dr Lau.  In fact, it was Dr Lau who had referred the plaintiff back to TMH for investigation of his alleged urinary incontinence as per Dr Lau’s letter to TMH dated 4 October 2010.

44.  Ms Loh further referred the court to a subsequent referral letter by a Dr Sha Wai Leung (“Dr Sha”) to the Urology Department of TMH dated 17 November 2010.  The letter stated: -

“He now complain of urge incontinence for which unlikely caused by previous injury (ie the subject accident).” – words in bracket added

45.  Dr Sha is a doctor of the O&T Department of TMH.  He had been the plaintiff’s treating doctor even before the subject accident.  It is to be noted that in Dr Sha’s referral letter, he describied that the plaintiff “now complain of urge incontinence”.  This means that prior to the writing of his referral letter, there was no complaint of urinary incontinence by the plaintiff.  Dr Sha’s referral letter was written on 17 November 2010 which was more than 18 months after the plaintiff had his subject accident on 7 February 2009.

46.  When the plaintiff was cross-examined as to when he told the government doctors that he had urinary incontinence.  He replied that he could not recall.  When Ms Loh further pursued on the subject.  He said that he thought he did tell the Tuen Mun doctors.  But as mentioned above, this is not supported by any contemporaneous medical records.

47.  Ms Loh submitted that the alleged urinary incontinence was a new invention by the plaintiff when he first consulted Dr Lau on 20 September 2010.  He fabricated and exaggerated his symptoms and disabilities in order to obtain extended sick leave as well as higher compensation.

48.  Mr Ng disagreed with the submissions of Ms Loh.  He argued that the plaintiff went to see Dr Lau because his condition had deteriorated.  He stated that if the objective of the plaintiff in seeing Dr Lau was to obtain further sick leave, the plaintiff could have opted for a cheaper course by visiting the O&T Department of TMH.  Mr Ng submitted that there is nothing to suggest that if the plaintiff had visited the O&T Department on 20 September 2010, no sick leave would have been granted to him.

49.  With respect, I do not agree with the submissions of Mr Ng.  In my view, if the condition of the plaintiff did deteriorate on the date that he went for the review of assessment of his injuries and disabilities by the Medical Assessment Board, one would expect him to have informed the doctors at the Medical Assessment Board of the deterioration or worsening of his medical condition. This is because his medical condition would directly affect the re-assessment and findings by the Medical Assessment Board regarding his injuries and disabilities; the loss of his earning capacity as well as the necessary period of sick leave to be granted to him.  One may even expect the plaintiff to request for a postponement of his re-assessment.  But this is not the case.

50.  Indeed, if the plaintiff condition had worsen, one would reasonably expect him to immediately go and consult the doctor at the O&T Department of TMH as Mr Ng had suggested bearing in mind that all along the plaintiff had been receiving treatment there.  But the plaintiff had not done that nor had he offered any explanation as to why he did not do so.  Rather, he chose to seek and pay for private consultation and then told Dr Lau for the first time that he had urinary incontinence.

51.  In my view, and before the plaintiff went for the review assessment, he knew full well that his sick leave certificate was granted up to 20 September 2010 only.  This is because the sick leave certificate issued to him by the O&T Department of TMH on 18 August 2010 stated clearly that the sick leave was for a period from 18 August 2010 to 20 September 2010.  As the plaintiff was not granted further sick leave before or at the review assessment on 20 September 2010, he must know that his sick leave would expire on that date.  If he wanted to obtain further sick leave, he must either consult the government doctor again or go and see private doctor.  For the plaintiff, he chose to consult Dr Lau and complained to Dr Lau that he had low back pain and for the first time urinary incontinence.  And because of these complaints, Dr Lau granted him sick leave from 21 September 2010 (which was upon the expiry of the sick leave certificate granted by the O&T Department) up to 4 October 2010. Further sick leave was granted by Dr Lau until 14 February 2011.  A total period of about 5 months

52.  In my opinion, the probabilities point to that the plaintiff went to consult Dr Lau was for the purpose of obtaining further sick leave, otherwise there is no good reason why he had for the first time complained to Dr Lau that he had urinary incontinence which is not substantiated by medical evidence.  In fact, the review assessment done on the same date that the plaintiff went to consult Dr Lau had no record of any complaint of urinary incontinence by the plaintiff.  If the plaintiff did genuinely suffer from urinary incontinence, he must have informed the Medical Assessment Board as this would be one of the important factors to be taken into the account in the re-assessment of his injuries and disabilities.  But it seems that the plaintiff only chose to complain to Dr Lau about it and not the Medical Assessment Board.  I do not believe the plaintiff.

53.  Further, and as pointed out by Ms Loh, the allegation by the plaintiff that he had urinary incontinence 3 months after the accident is contrary to all contemporaneous medical records.  For a period of about 18 months, that is from the date of the subject accident on 7 February 2009 up to the date that the plaintiff first consulted Dr Lau on 20 September 2010, there is no reference in all the medical reports or records that the plaintiff had made a complaint of urinary incontinence.  If he did make the complaint, there is no reason why the treating doctors in TMH would not have referred him to urology specialist for investigation and treatment as what Dr Sha had done.  As further submitted by Ms Loh, no evidence has been adduced to support that the plaintiff had suffered any urological problem despite that the plaintiff had attended 3 follow-up sessions at the Urology Department of TMH since end of 2011.

54.  I do not accept that the plaintiff has urinary incontinence.  This is not substantiated by medical evidence.  In any event, even if he is suffering from urinary incontinence, it has nothing to do with the subject accident as Dr Sha had stated in his referral letter (see paragraph 45 above).

(b) Magnetic Resonance Imaging (“MRI”)

55.  MRI was arranged by TMH for the plaintiff on 30 May 2009.  However, the plaintiff declined to have MRI at TMH.  Instead, he had his own private MRI in PRC on 6 May 2009 (“PRC MRI”) just about 3 weeks before the original scheduled MRI at TMH.

56.  The plaintiff was cross-examined as to why he had chosen to have private MRI in PRC despite that MRI was arranged for him at TMH.  He replied that he was told that the MRI conducted in PRC was better.

57.  When further pursued by Ms Loh that at that time, he still had low back pain and had to walk with the aid of a walking frame, why he still chose to take all the trouble to travel to PRC and pay for private MRI for which he could have it done in TMH without charges.  He replied that the technology in PRC was more reliable.  He also confirmed that at that time, he had to walk with the aid of a crutch not walking frame.

58.  In my view, the answers given by the plaintiff are unconvincing and not reasonable.  As pointed out by Ms Loh, free MRI had already been arranged for him at TMH on 30 May 2009, there was no good reason why he preferred to have paid MRI done in PRC despite that he was still suffering from pain and had to walk with a crutch.  It should be noted that the plaintiff had MRI done at TMH for his 1^st accident.  This was in March 2005.  On that occasion, the MRI revealed no abnormality and there was no complaint from the plaintiff that the MRI done at TMH in 2005 was unreliable.

59.  If the purpose of the plaintiff to have MRI done in PRC was to obtain a report in his favour, he had achieved his objective.  The rather brief PRC MRI report (written in Chinese) stated that the plaintiff had “dural sac compression …… cord disc changes …… L4/5 bulging ……” (硬膜囊前緣受壓……腰椎間盤變性……腰4/5椎間盤膨隆……).

60.  But such findings are not shared by the Hong Kong orthopaedic specialists.  Dr Sha, of the O&T Department of TMH had reviewed the PRC MRI report and considered that there was “no significant abnormality”.  In his referral letters dated 17 November 2010 and 17 March 2011, he further confirmed that there was no dural sac compression nor cord disc changes.

61.  Dr Lau had also reviewed the PRC MRI report and only noted minimal prolapsed disc at L4/5.

62.  The orthopaedic experts Dr Tio and Dr Wong also found no significant abnormality from their reading of the PRC MRI report.

(c) Claim for loss of free bus travel benefit

63.  The plaintiff has lodged a substantial claim for loss of free bus travel benefit for himself, his wife, his 77 years old aged mother and the 2 children in the total sum of $1,553,539.00.  He claims for loss of such benefit from the date of his employment was terminated by the defendant on 9 November 2010 up to his alleged retirement age at 65.  For his 2 children, he claims for loss of free bus travel benefit until they reach the age of 25.

64.  In the plaintiff’s witness statement, he has attached a full breakdown of his claim for past and future loss of free bus travel benefit for the whole family including his aged mother (“the breakdown”).  The court was informed that the breakdown was prepared by the plaintiff and not by his solicitors.

65.  Ms Loh submitted that the claim for loss of free bus travel benefit by the plaintiff is highly inflated, unreasonable and unimaginable.  I agree with Ms Loh having considered the breakdown prepared by the plaintiff and his evidence given under cross-examination.

66.  In the breakdown prepared by the plaintiff, he claimed that he has to incur travelling expenses (which represent the loss of free bus travel benefit) in the sum of $915.20 per month.  This is the bus fare he has to pay to and from work on 26 days a month.  He also claimed bus fare incurred for taking his two children to and from school every day, in the sum of $305.80 per month. One would then question why the plaintiff could claim travelling expenses for taking his children to school every morning whilst according to the plaintiff, he was required to work morning shift from about 5 o’clock in the morning until 3 to 4 o’clock in the afternoon.

67.  It is also noted that the plaintiff had made a similar claim for his wife.  He claimed that the wife has to incur travelling expenses (ie the bus fare) to and from work every day, 26 days a month in the sum of $1,011.40 per month.  At the same time, he also claimed travelling expenses for his wife for taking the 2 children to and from school also on a daily basis, 24 days a month in the sum of $333.60 per month.

68.  It should also be noted that the plaintiff and his wife claimed for loss of free bus travel from home to work every day ie for taking the bus at Tin Hang bus station (天恆巴士站) Tin Shui Wai to their workplace.  But, interestingly, they also claimed for loss of free bus travel for taking the children to school also from home at the same Tin Hang bus station.  Does that mean that every morning, the plaintiff and his wife would take the children to school first.  After taking the children to school, they would return home and start their journey to their workplace from home again from the same bus station at Tin Hang.  This seems to me to be against common sense and not credible.  Indeed, in the breakdown, the plaintiff had not explained why it is necessary for him and his wife to accompany the children to school together when it is claimed that both are required to work every day.

69.  Further, it should be observed that according to the plaintiff, he has been out of work since the date of the subject accident (ie 7 February 2009).  He has remained unemployed as at the date of the hearing namely for a period of over 5 years.  The plaintiff also confirmed that his wife had an accident at work in about 2010.  She had been on sick leave and has not returned to full time work apart from doing some private tuitions occasionally.  In such circumstances, there is simply no basis to justify a claim for loss of free bus travel by the plaintiff and his wife for travelling to and from work when both have not been in gainful employment for a lengthy period of time.  It is however noted that at the hearing, the plaintiff confirmed that he would not pursue his claim for loss of free bus travel for accompanying his children to and from school.  But the above shows that his claim is unreliable and unconvincing.

70.  The same can also be said of the claim by the wife and the 2 children.  In the breakdown, the plaintiff claimed that the wife and the 2 children go to Causeway Bay for shopping 3 times a month.  He claimed bus fare in the sum of $154.80 per month for the wife (with a multiplier of 16.97 for calculating future loss).  For each child, he claimed a sum of $77.4 per month (and with a multiplier of 14.15 for the elder daughter and a multiplier of 16.18 for the younger son for calculating future loss).  In my view, this claim is also unreasonable and unjustified.

71.  I do not see any justification for the claim that the wife and his 2 children would travel all the way from Tin Shui Wai to Causeway Bay, Hong Kong side to do shopping 3 times a month until the wife’s entitlement for free bus travel benefit terminates when the plaintiff retires at 65 and until the 2 children reach the age of 25.  One would question why the wife and his children would choose the longest bus route from Tin Shui Wai to Causeway Bay to do shopping 3 times a month, repeating this every month and every year.  Why they do not choose somewhere near home to do the shopping or even to Tsimshatsui for instance.  I think the answer is obvious.  The plaintiff would like to seek for more compensation otherwise this claim would not run up to $1,553,539.00.

72.  In respect of the claim by the aged mother.  The plaintiff claimed that his 77 years old mother travels by bus from her home in Lai Yiu (麗瑤), Kwai Chung to his flat in Tin Shui Wai to take care of his 2 children on all weekdays 26 days a month.  He stated that the bus fare for her is $5 per trip.  Round trip would be $10.  He therefore claimed a sum of $260 per month as loss of free bus travel benefit for the aged mother ($5 x 2 trips x 26 days = $260).

73.  The plaintiff also claimed that on all weekdays, his aged mother would take lunch for his 2 children at school in Tin Fu (天富).  He stated that the aged mother would take bus from the plaintiff’s home in Tin Shui Wai to the children’s school in Tin Fu, 24 days a month and in the sum of $6.90 per single trip.  The amount claimed is $331.20 ($6.90 x 2 trips x 24 days = $331.20).

74.  In my view, the above claims for the mother are not only unreasonable but also not probable.  According to the breakdown, the plaintiff claimed that he and his wife have to take the children to and from school 24 days a month, If that is the case, why it is necessary for the aged mother to travel to the plaintiff’s home in Tin Shui Wai to take care of the 2 children on a daily basis.  The 2 children would be at school the whole day otherwise the mother need not have to take lunch for them 24 days a month.  This is not to mention that the plaintiff and his wife have been out of work for about 5 years.  I fail to see why it still requires the mother to take care of the 2 children every day whilst the plaintiff and his wife are out of work and the 2 children are at school full time.

75.  More importantly, the plaintiff was cross-examined as to why he had claimed for full bus fare for his aged mother whilst she is entitled, as a senior citizen over 65 years of age, to a concessionary rate of $2 per travel. The plaintiff was evasive in his answer.  He claimed that the government might change the $2 concessionary scheme in future.  This is totally unacceptable.

76.  In my view, it is also unreasonable for the plaintiff to claim for full bus fare for himself and the whole family for visiting the aged mother every weekend in Kwai Chung.  According to the plaintiff, the aged mother goes to his home in Tin Shui Wai to take care of the 2 children on all weekdays.  This means that the plaintiff, the wife and the 2 children would be seeing the aged mother from Monday to Friday already.  I fail to see why there is a need for the whole family to go and visit the aged mother again for every weekend.

77.  The above are only some of the examples which serve to illustrate how unreasonable the claim for loss of free bus travel benefit by the plaintiff.  There are other items of claim made by the plaintiff in the breakdown but I do not think it is necessary to refer to each and every one of them here.  Suffice it to say that the claim by him is unreasonable, unreliable and untrue.  I also find that some of the claims are fabricated by the plaintiff and I have serious doubt regarding the genuineness of his claim.

78.  However, the plaintiff had admitted under cross-examination that some of his claims were unreasonable but maintained that he should be entitled to half of what he had claimed.  He also admitted that he had not returned the bus passes issued to him and his family despite requests by the defendant.  When asked as to whether he had used the bus pass.  His answer was also evasive.  He said he could not remember nor was he sure that his family members had continued to use the bus passes.

(d)  questions relating to the subject accident

79.  The plaintiff was cross-examined regarding the subject accident.  He stated that he slipped and fell because of the wet and oily ground.  When questioned as to why on such a cold and wet morning, he had chosen to lie and remain on the wet and dirty ground and refused to be helped up by other colleagues.  He changed his evidence and denied that the ground he was lying on was wet and dirty.

80.  The plaintiff also denied that he used to do regular exercises.

81.  According to the plaintiff, when he fell onto the ground, he landed on his right buttock with his both hands.  He suffered no injury to his hands nor wrists.  He admitted that it was a fall from a walking position and not from height.  When asked about how such a minor fall could have caused him the alleged serious injuries when before the subject accident, he claimed to be a sporty person and used to go swimming and cycling.  He shifted his evidence and denied that he used to doing regular exercises.  He told the court that he rarely played basketball and only went to swim about 3 to 4 times a year.  This is indeed contrary to his own witness statement where he said that he used to go swimming, cycling and playing basketball during leisure.  This also contradicts what he had told the experts that he used to go swimming and cycling once a week before the subject accident (see paragraph 28 of the joint report).

(e) questions relating to the 1^st accident

82.  The plaintiff had the 1^st accident on 10 March 2004.  He was granted sick leave for about 2 years until 2 June 2006.  He was cross-examined as to why in the joint examination, he had told the experts that the injuries suffered by him in the 1^st accident was mild and trivial and that he had sick leave for a few months only.  He answered that he could not recall what he had told the doctors.  He also denied to have lied to the experts.

83.  In my view, the plaintiff was evasive in his answers.  One can see from page 8 of the joint expert report that the plaintiff had not even told the experts that his injury from the 1^st accident was mild and trivial, but also he had been healthy all along.  It states at page 8 of the report: -

“E. Past Health

47. Mr. So had injury on duty in 2004 while working in PMH as a general labour. He had back sprain injury, which he says was mild/trivial and he believes that it had no relationship with his current condition. He had sick leaves for a few months and physiotherapy for 1-2 months ……

48. He has no other serious bodily injury before.

49. He has been healthy all along.”

84.  Ms Loh submitted that the plaintiff had lied to the experts and had tried to play down the severity of his injuries in the 1^st accident. I agree.  In my view, there is no basis for him to have told the experts that the injuries suffered by him in the 1^st accident were mild and trivial when according to the plaintiff’s assertions, he had persistent low back pain after the 1^st accident.  He was even hospitalized for 10 days in February 2005 due to his complaints of aggravation of symptoms.  Further, he had also failed to disclose to the experts that he was diagnosed to have moderate depressive mood and that he had to receive psychiatric treatments.  For the 1^st accident, he was granted sick leave for a total period of about 2 years not just a few months.  I fail to see how he could have informed the experts that he had suffered only mild/trivial injuries with a few months sick leave granted.  In my view, he had lied to the experts.  I do not accept the submissions of Mr Ng that the plaintiff might have got the details wrong due to the lapse of time.

85.  Further, according to the joint expert report, the plaintiff was asked whether Medical Assessment Board had been held for his 1^st accident, he refused to give a direct answer to the question.  Paragraph 47 of the joint report states: -

“…… When he was asked whether MAB was conducted, he says he had to go to toilet immediately due to urinary urgency and refused to answer (not even yes or no) before going out of the consultation room. After coming back from toilet, he says he had MAB done once for that episode of injury and around 1-2% LOEC was granted.”

86.  In my opinion, the plaintiff had not been forthcoming when the experts tried to obtain more information from him about the 1^st accident.  He had also failed to give frank answers to them which necessitated the experts to obtain all medical notes and records from the instructing solicitors after the interview with the plaintiff.  Indeed, on page 14 of the joint expert report, Dr Wong commented that the plaintiff: -

“was unable (? unwilling) to recall his “history of back injury” correctly during the joint assessment.”

(f) past employment of the plaintiff

87.  The plaintiff gave evidence that after 2006 and before he commenced his employment with the defendant in January 2009, he had worked as a part-time van driver earning about $3,000 to $5,000 a month.  However, when he was confronted with a letter from the Inland Revenue Department which showed that the plaintiff had reported no income from April 2006 up to March 2012 (save payments received from the defendant), he changed his evidence and admitted that he had not been working from mid 2006 to March 2009 save the 4 days’ work with the defendant.  He stated that occasionally he had worked as a van driver for which he had received $200 to $300 a month.  He admitted that he was on CASS from mid 2006 up to about May 2009.

88.  The plaintiff was also cross-examined on whether he had worked for a company called Wing Fat Shipping (永發船運) from April 2006 to February 2008 as he had stated in his “Employment Application Form” submitted to the defendant.  The plaintiff answered that he could not remember.  When further asked whether he had received any income from his employment with Wing Fat.  He said that he was not clear.  He was evasive in his reply.

(g)  overnight shift duty (通宵更)

89.  The plaintiff claimed for overnight shift allowance in the monthly sum of $1,974.  He claimed that immediately after the commencement of his employment with the defendant, he had submitted his application for overnight shift duty (通宵更).  He stated that if not for the accident, he would be engaged in full time overnight shift duty throughout his employment with the defendant until the age of 65.  He therefore claimed a sum of $517,000 as loss of his overnight shift allowance.

90.  However, when it was put to him that only bus drivers who had completed 2 years of service with the defendant would be eligible to apply to work overnight shift.  The plaintiff conceded and admitted that the application he submitted to the defendant was not for overnight shift duty but for night shift duty (夜更)/special duty (特別更)).

(h) tonic food

91.  The plaintiff claimed for tonic food expenses in the sum of $32,000.  Under cross-examination, he disclosed that he had spent $16,000 on tonic soups which were consumed by him and his family.  He also admitted that the said sum of $16,000 had included the gas charges for “cooking” the soups.

92.  The plaintiff was also cross-examined on the sum of $15,000 spent on infant milk powder.  He stated that the milk powder was for his consumption as he was told by other patients that milk powder was good for his bone.

93.  When he was further asked why he could have consumed 9 cans of milk powder a month when those milk powder were only suitable for person between ages 3 to 6.  He admitted that they were consumed by him and his son.

94.  I have to say that I do have serious doubt regarding the plaintiff’s claim for tonic food.  It came no surprise to me that before the hearing Mr Ng accepted the sum of $23,000 offered by the defendant as special damages.

95.  From the lengthy cross-examination of the plaintiff in respect of the above matters, I come to the view that the plaintiff is not an honest witness at all.  I find him to be untruthful, unreliable and not believable.  His evidence is contrived and unconvincing.  As pointed out by Ms Loh, Mr Ng had not in his submissions attempted to deal with the issue of creditability raised against the plaintiff nor had he attempted to argue that the plaintiff is in any way a credible witness.  As I see it, may be there is not much that can be said on behalf of the plaintiff when it comes to his credibility.  In my view, the plaintiff is simply not a credible witness at all.

THE DEFENDANT’S WITNESSES

96.  At the hearing, 2 witnesses were called by the defendant namely Mr Yeung Mo Pun (“Mr Yeung”) and Mr Huen.  Both are Assistant Manager of the defendant and they had adopted their witness statement as their evidence.

97.  I have considered their evidence, I find them as truthful and honest witness.  They gave clear and frank answers to questions asked and were not discredited under cross-examination.  I accept their evidence.  When their evidence are at variance with those of the plaintiff, I prefer their evidence to those of the plaintiff.

98.  I accept for instance, the evidence of Mr Yeung that the retirement age of bus captain is at 60 not 65 as contended by the plaintiff.

99.  I also accept his evidence that only very few bus captains would be re-employed after 60.  If they are, they have to pass the required medical examinations. They would also be re-employed on a part-time basis and be paid on an hourly basis.  Whether the bus captain would be re-employed after aged 60 would depend on his past performance, driving skill and experience.  Mr Yeung confirmed that less than 1% of the bus captains employed by the defendant are above the age of 60.

100.  I also accept the evidence of Mr Huen.  I accept for example his evidence that only bus captain who has worked for the defendant for over 2 years would be eligible to apply for overnight shift duty.

THE INJURIES/DISABILITIES OF THE PLAINTIFF

101.  In order to better understand the plaintiff’s complaint of persistent low back pain, I shall give a summary of the medical reports relied on by the parties as well as the treatments received by the plaintiff.

(a) Medical reports and treatments

102.  After the accident, the plaintiff was ambulanced to the Accident and Emergency Department (“A&E Department”) of TMH for treatment.  According to the medical report prepared by Dr Lui Chun Tat (“Dr Lui”) dated 23 May 2010, the plaintiff was brought to the A&E Department of TMH at 06:35 hours on 7 February 2009.  The chief complaint by the plaintiff was right hip pain after a “slip and fall” accident in the work place.  He landed on his buttock.  On examination, tenderness was noted over his right hip.  X-rays of pelvis, right hip, chest and lumbosacral spine were unremarkable.  He was admitted to the Emergency Medicine Ward and was subsequently transferred to the Orthopaedic Ward for further management due to complaint of persistent pain.  Analgesics were prescribed.  It is stated in the report that the mode of injury could not be determined.  The plaintiff was hospitalized for 6 days and he was discharged on 13 February 2009.

103.  In the Discharge Summary prepared by Dr Sha, it is recorded that upon discharge, the plaintiff still had buttock pain and right lateral thigh numbness with local tender at ischial tuberosity.  Straight leg raising test was conducted.  For the left leg it was 60˚ and on the right it was 20˚.  The plaintiff was also found to have limping gait.  He was referred to the physiotherapy and occupational therapy department of TMH for treatments.

104.  In the Physiotherapy Report prepared by Ms Sammi Chau dated 27 May 2010, it is stated that the plaintiff had attended 50 physiotherapy treatments with the last session ending on 19 October 2009.  It is recorded that by 19 October 2009, the plaintiff still complained of right buttock pain and that the maximal walking tolerance (unaided) and sitting tolerance was 20 minutes.  It is reported that the plaintiff was able to climb one flight of stairs but with pain.  The overall subjective improvement was 40 to 50%.

105.  In the Occupational Therapy Report prepared by Mr Jonathan Chow (“Mr Chow”), he stated that the plaintiff underwent 20 sessions of occupational therapy treatment with the last one ending on 3 November 2009.  Initial assessment showed that he had good back range of motions, but had muscle weakness over both lower limbs.  He also complained of pain over his low back, right buttock and numbness over right lower limb.

106.  Initial work assessment result showed that plaintiff had pain complaint after 20 minutes sitting.  He performed foot paddle control simulation for 15 minutes and showed steady output in power.  However he required frequent breaks.  Work hardening program was assigned to the plaintiff but no significant improvement was shown.  It is reported that at the time of discharge, the plaintiff had sitting tolerance for about 15-20 minutes.  He performed foot paddle control simulation for 15 minutes but had lower limb numbness complaint.  His walking tolerance was about 15-20 minutes.

107.  In another medical report prepared by Dr Sha dated 11 June 2010, it is recorded that the plaintiff had a “slip and fall” accident.  He had back pain but x-ray revealed no abnormality.  Physical examination also showed no neurological deficit.  The PRC MRI was revealed but again no significant abnormality was found.

108.  On 19 May 2010, the plaintiff attended an assessment by the Employee’s Compensation (Ordinary Assessment) Board.  In the Certificate of Assessment issued by the Board (Form 7), it is certified that the plaintiff had low back injury resulting in residual low back pain.  It was also certified that he had 1% loss of earning capacity.  Sick leave period from 7 February 2009 to 19 May 2010 was certified to be necessary as a result of the injury.

109.  On 20 September 2010, the plaintiff had a review of assessment.  According to the Certificate of Review of Assessment by Employees’ Compensation (Ordinary Assessment) Board (Form 9), the plaintiff was certified to have low back, right buttock, right leg injuries resulting in low back pain.  He was assessed to have 5% loss of earning capacity.  Sick leave period from 7 February 2009 to 20 September 2010 was certified to be necessary as a result of the injury.

110.  In the medical report prepared by Dr Lau dated 8 April 2011, he stated that the plaintiff consulted him every fortnight.  When the plaintiff first went to see him on 20 September 2010, he complained to have persistent low back pain with occasional urinary incontinence.  He could only walk for 15 minutes and required the support of stair railing when climbing stairs.  He told Dr Lau that he had occasional night pain which woke him up.

111.  On first physical examination of the plaintiff, Dr Lau found that there was local tenderness and swelling of paraspinal muscle of lumbar spine region, especially on the right side.  He had 0 degree extension and 40 degree forward flexion of low back due to severe pain.  Side bending was 20 degree each.  Straight leg raising on sitting was full but with increased low back pain.  Dr Lau found that the plaintiff had clumsy legs on walking unaided and could not achieve tiptoe walking or heel walking.

112.  In the subsequent consultations by the plaintiff, Dr Lau found that the plaintiff had deteriorated limping gait, especially on the right side.  The low back was still stiff and painful.  He had poor sitting or walking tolerance. He was also found to have clumsy gait on tiptoe and heel walking.  Dr Lau recommended the plaintiff to have epidural injection but it was declined.  The plaintiff was also recommended to have another MRI conducted in Hong Kong but again the plaintiff declined the suggestion.  He preferred to continue physiotherapy treatment.

113.  The plaintiff was diagnosed by Dr Lau as suffering from low back contusion which resulted in minimal prolapsed intervertebral disc at L4/5 level.  Dr Lau believed that the subject accident was the cause of his injury.

(b) Joint examination by experts

114.  On 18 May 2011, the plaintiff had a joint examination and assessment by the experts.  According to the report of the experts dated 24 November 2011, the plaintiff still complained of low back pain despite the subject accident had occurred for more than 2 years.  At page 7 of the joint expert report, it recorded that the plaintiff still complained to have: -

“…… right side low back pain shooting to his buttock, with pain severity grade 1-2/10 all the time. The pain increases with walking for 20 mins to grade 5-6/10, and with using stairs, bending, squatting, carrying heavy object (he cannot carry one pack of rice), stepping onto brake. The pain disturbs his sleep on average 2 times a week and he can sit at most 20 mins, then he has to change his posture. After standing for 20 mins, he has to move around and walk less fast.”

115.  Physical examination conducted by the experts showed that the plaintiff could stand on single leg on the left side only.  Standing on the right side elicited low back pain.  In the joint examination, the plaintiff also told the experts that he could not walk on heels and could only squat half-way down.  He complained of low back pain when he was required to walk on tiptoes.

116.  Examination of the lumbar spine revealed that the plaintiff had restricted range of motion.  He complained of back pain during extension and flexion of his spine.

117.  The plaintiff also complained of low back pain during the simulations tests.  He had pain in the arms raising test and pain for trunk and pelvis rotation.  He also elicited pain for axial compression over vertex and shoulders.

118.  In the straight leg raising test, he complained of right side low back pain (at 60 degrees supine position).  He had right low back pain when bilateral hips were flexed 90 degrees and knees flexed at 90 degrees in supine position.

119.  In the sensation test conducted on him, the plaintiff complained that he had 50% reduced sensation over the whole right lower limb.  Motor power also elicited low back pain inhibiting exertion of power of both lower limbs to grade 4/5.

120.  The plaintiff told the experts that he had urinary incontinence 3 months after accident and that lately he wet his underpants on average 2 times a week.

(c)  Assessment by the court

121.  According to the plaintiff, he had persistent low back pain since the subject accident on 7 February 2009.  The pain never subsides nor goes away.  He had shooting pain from right side low back to his buttock. It is so serious that the pain radiated to the lower limbs with right thigh numbness.  The plaintiff said that initially he had to walk with the aid of a walking frame.  Currently he had to walk with a limp.  He had difficulty in climbing stairs, bending, squatting. He could not walk, stand or sit for more than 20 minutes.  The pain also disturbed his sleep on average 2 times a week.

122.  When the plaintiff consulted Dr Lau at the end of 2010, it is said that his conditions had worsen.  Apart from his complaint of persistent low back pain, Dr Lau observed that he had deteriorated limping gait especially on the right side.  The low back was stiff and painful with poor sitting and walking tolerance.  He had clumsy gait on tiptoe and heel walking.  He was recommended to have epidural injection but was declined by the plaintiff.  He was recommended to have another MRI done in Hong Kong.  He again declined it.  Due of his complaints of persistent low back pain, he was referred by Dr Lau to the Pain Management Clinic of Pok Oi Hospital for treatment and assessment.  And because of his complaint of urinary incontinence, he was also referred by Dr Lau to the Urology department of TMH for investigation.

123.  The plaintiff gave evidence at the hearing.  He repeated his complaints about his low back pain and numbness to his legs despite 5 years have elapsed since the subject accident.  I also observed that he had to walk quite slowly to and from the witness box.  He was walking with a limp.  He told the court that he had to wear diapers because of his urinary incontinence.

124.  I have considered all the evidence, I do not accept that the plaintiff is suffering from such a severe back pain and disabilities as he has tried to portray.  In my view, his various complaints and alleged functional disabilities are not supported by objective medical findings.  They are inconsistent with the objective assessments by the experts.

125.  For instance, the plaintiff complained that he could not walk, stand and sit for more than 20 minutes.  He had to walk with a limping gait.  However, at the interview, the experts observed that he could stand and walk normally.  He could sit for 30 minutes for the interview until he requested to use the toilet.  There was no mention of any complaint of back pain because of prolonged sitting.

126.  The plaintiff complained to have weak lower limbs and that he had 50% reduced sensation over the whole right lower limb, but the experts found that the reflexes were all normal.  Inspection of the back of the plaintiff also showed no deformity or swelling.  Alignment was also found to be normal.  There was no muscle spasm.

127.  Despite complaint of persistent pain in the low back and restricted movement in the lumbar spine, x-ray of the lumbar spine taken on the day of joint assessment also showed normal lumbar lordosis, with no bony lesion or disc space abnormality. X-ray of the pelvis taken on the same day also showed no abnormality. The experts also found no significant abnormality from their reading of the PRC MRI report.

128.  In view of the objective findings and assessments by the experts, they concluded at paragraph 77 of the joint expert report as follows:-

“77. Present Condition: In this joint assessment performed >2 years after the captioned accident, Mr So complains of residual right side low back pain shooting to his buttock. His ambulatory capacity is limited by his back pain. He also stated that he had episodes of urinary incontinence.

Physical examination shows reported tenderness over his lumbar spine with a slight reduction in the ranges of movement. There was also subjective reduction in sensation over his whole right lower limb which was not of dermatomal distribution and is medically inexplicable with the MRI findings of no nerve compression. There was reduced in motor power over his lower limbs which he attributed to the back pain elicited but there was no muscle wasting or reflex abnormality detected. There were inappropriate physical signs suggesting there was elements of non-organic nature within his symptoms and disabilities.

Updated x-rays of the lumbar spine and pelvis are normal.

 We agree that the above objective physical and radiological examination findings are compatible with Mr So’s back in reasonably satisfactory condition.”

129.  In a gist, upon physical and x-ray examinations of the back and lower limbs of the plaintiff, the experts do not find anything abnormal about the plaintiff.  They found no deformity of the back nor swelling or muscle spasm.  There were no abnormal alignment or abnormal reflexes.  There was also no muscle wasting.

130.  In the joint expert report, the experts agreed that the plaintiff only sustained soft tissue contusion injury over his buttocks and possibly some soft tissue back sprain injury during the subject accident.  I agree and accept the diagnosis and findings of the experts.

131.  The experts also agreed that the conservative treatments by the attending doctors such as occupational therapy and physiotherapy treatments were appropriate.

132.  They also agreed that the plaintiff had attained maximal medical improvement (“MMI”) for his injury sustained in the subject accident.  There is no further treatment to assist recovery.  His condition is static enough for assessment.  The experts took the view that the plaintiff did not require any ongoing symptomatic relief treatment in the future.  There was no indication for surgical treatment.

133.  As far as residual impairment and prognosis are concerned, the experts stated that all the objective findings suggested good prognosis for the plaintiff’s back injury sustained in the subject accident.  The plaintiff may have mild/very mild residual back pain from time to time upon exertion. Functional impairment of his lower limbs is not expected.

134.  Dr Wong is of the opinion that the plaintiff should be capable of managing activities of daily living.  His employment of life and ability to cope socially will only be minimally affected by the accident.  He assessed that the plaintiff had about 1% whole person impairment for possible residual back pain as a result of the subject accident.  He also estimated that the plaintiff to have 1% loss of earning capacity.

135.  Dr Tio viewed that the plaintiff should be able to manage most of his daily activities except upon prolonged sitting or standing and upon heavy object lifting or carrying.  He assessed that the plaintiff had 7% whole person impairment but 2% should be deducted to take into account of his injury in the 1st accident.  He also assessed the plaintiff to have 5% loss of earning capacity, again after allowing a discount of 2% for the 1st accident.

136.  In my view, and in light of the objective assessments by the experts, the plaintiff’s alleged persistent low back pain and functional disabilities are not simply a subjective complaints by the plaintiff, but they are feigned by the plaintiff.  It is difficult envisage how such a soft tissue contusion injury over his buttocks and possibly some soft tissue back sprain injury would have caused such a severe and persistent low back pain and functional disabilities to the plaintiff as he alleged.  According to the plaintiff, these alleged pain and disabilities are still continuing despite 5 years have elapsed since the subject accident in February 2009.

137.  It is to be observed that the plaintiff had a slip and fall accident not from height but from a walking position.  But most importantly, and as pointed out by Ms Loh, when the plaintiff fell, he had landed on his right buttocks with his both hands.  This means that it would not be a hard impact when his right buttocks landed on the ground as part of the force would have been absorbed by both hands.  The evidence that the plaintiff had not sustained any injury to his hands and wrists would lend support that the impact would not be great at all when he landed on his buttocks otherwise he would also sustain injury to his hands and/or wrists.

138.  The plaintiff was ambulanced to the A&E Department of the TMH immediately after the accident.  The examination by the doctor also lends support to the contention that the injury sustained by the plaintiff cannot be said or categorized as serious at all.  According to the medical report by Dr Lui, upon admission to TMH, the plaintiff was found to have tenderness over right hip only.  No redness, swelling or bruises were revealed. X-rays of pelvis, right hip, chest and limbosacral spine were normal and unremarkable.  However, for some reasons and which may be best known to the plaintiff, he complained to have buttock pain and right thigh numbness upon his discharge from hospital.  He had to walk with a limp.  It is also reported that he had to walk with frame despite that no swelling on buttock or back was noted and despite that there was no muscle spasm.

139.  Indeed, if the alleged persistent low back pain and functional disabilities of the plaintiff are genuine, one would expect the plaintiff to take more pro-active steps to seek treatments of his pain and disabilities, so that he could return to work and live a normal life. But this does not appear to be the case of the plaintiff.

140.  According to the medical reports, the plaintiff received out-patient physiotherapy treatment until 19 October 2009.  His occupational therapy treatment also ended on 3 November 2009.  After that, it seems that the plaintiff had not received any other treatments apart from the prescriptions of analgesics.  It was not until the sick leave granted by the government doctors expired on 20 September 2010 that the plaintiff went to consult Dr Lau and had private physiotherapy treatment again.  But strangely the plaintiff refused recommendation by Dr Lau to have another MRI performed in Hong Kong again to find out the true cause of his alleged persistent pain and disabilities.  This is to be borne in mind that at that time, the condition of the plaintiff was deteriorating according to Dr Lau.  He was suffering from rather serious functional disabilities and with urinary incontinence.  He has been out of work since the subject accident and with a family and 2 young children to support.  If one is in the same position as the plaintiff, one would be very concerned and worried about his own medical condition.  In my view, there is no good reason why the plaintiff had declined to have another MRI to be done so that the doctor could have a more thorough investigation of his serious complaints and functional disabilities if they are genuine.

141.  In my judgment, the plaintiff is a malingerer.  As stated above, he is not a credible and truthful witness in the first place.  Also, his alleged complaints of persistent low back pain and other functional disabilities are not supported by any objective medical evidence at all.  The experts concluded that “there were inappropriate physical signs suggesting there was elements of non-organic nature within his symptoms and disabilities”.  The experts also took the view that the persistent low back pain of the plaintiff was simply “out of proportion” and which may have to be explained with regard to his previous psychiatric condition if that is to be the case.  The experts stated at paragraph 84 of their report that: -

“84. We agree that, in view of his history of psychiatric condition, and that he did not volunteer any information of such to us during the joint assessment, it is helpful to obtain an updated report from his psychiatrist from CPH (Castle Peak Hospital) to see if there’s any possibility of his psychiatric condition being an element within the captioned accident and his out-of-proportion persistent back pain. If the report indicates that he still has psychiatric problem, a separate assessment by a psychiatrist will be indicated” – words in bracket added.

142.  Possibly for the same reason, Dr Tio attempted to explain why the plaintiff had on and off pain.  At paragraph 72 of the expert report, Dr Tio stated: -

“Dr Tio: it is not uncommon for patients to have soft tissue injury to present with on and off pain for the first few years but the condition should be gradually improving. The duration and course of the illness can be adversely affected by that he had history of depression as depressive patients usually fare less well for injuries sustained.”

143.  However, and despite the above observations by the experts regarding the possible psychiatric condition of the plaintiff, no medical evidence whatever has been adduced before the court to prove that the alleged injuries and complaints by the plaintiff are related to his psychiatric condition or that the plaintiff has suffered any psychiatric illness as a result of the subject accident.  Nor is there any evidence adduced to show that the plaintiff has urinary incontinence which is again related to the subject accident.

CAN THE PLAINTIFF RETURN TO PRE-ACCIDENT JOB

(a)  Occupational Therapy Reports and Form 1

144.  Both counsel Mr Ng and Ms Loh took a different view on this issue.  Mr Ng argued that the plaintiff cannot return to his pre-accident job as a bus captain.  He relied on the O&T Rehabilitation Outcome Reports and the Occupational Therapy Report by Mr Chow (collectively “the OT Reports”). He also relied on the Certificate of Permanent Unfitness by Dr Sha dated 26 November 2009, ie Form 1 and the expert opinion of Dr Tio.

145.  Ms Loh contended that the plaintiff should be able to return to work as bus captain.  She relied on the expert opinion of Dr Wong.  I shall first deal with the OT Reports & the Form 1 relied on by Mr Ng.

146.  Mr Ng relied on the OT Reports (see paragraphs 105 and 106 above) which stated that the plaintiff had significant degree of limitations in the upper limbs and lower limbs.  The OT Reports concluded that the plaintiff’s capacity did not match the job demands of his pre-accident job as a bus driver and that he should consider changing job type.

147.  In the Occupational Therapy Report, Mr Chow found that the plaintiff had complaint of pain after 20 minutes sitting.  He also had lower limb numbness. As such, he took the view that the pre-accident job of the plaintiff which required working with prolonged sitting posture, use of foot paddle control and steering wheel control with upper limbs would not be suitable for him.

148.  In respect of the Form 1 issued by Dr Sha, he certified that the plaintiff was permanently unfit for his pre-accident job as a bus driver.  He wrote on Form 1: -

“patient had history of back injury March 2004 and referred to our clinic since 14 February 2005.

He had history of second episode of injury 7 February 2009.

low back pain with fair general physical work capacity endurance in relation to prolonged driving as a bus driver.”

149.  The plaintiff admitted that Form 1 was prepared and signed by Dr Sha on his request.  Mr Ng contended that despite the Form 1 was prepared on the plaintiff’s request, it was nevertheless compiled by Dr Sha after reviewing the medical records concerning the plaintiff.

150.  Ms Loh submitted that the court should not rely on the OT Reports prepared by the occupational therapists.  She contended that they were paramedics and not doctors.  Their conclusions were primarily based on the examination results as demonstrated by the plaintiff in the physical tests conducted on him.  They were not based on medical findings.  These test results would depend on the plaintiff’s motivation and willingness to have full exertion in the tests.  In this connection, Ms Loh referred the court to certain remark in one of the OT Reports which stated that the plaintiff was noted to be “selfguarding in movement, apprehensive …… deconditioned in general ……”.

151.  Based on the above, Ms Loh submitted that there was every indication that the plaintiff had exaggerated his pain and disabilities and would not exert to his fullest in the physical tests.  These test results were unreliable rendering the conclusions of the OT Reports also unreliable.  She stated that the experts’ conclusions based on medical findings should prevail.

152.  Ms Loh further submitted that the court should not rely on the Form 1 signed by Dr Sha.  She argued that there was no medical basis for Dr Sha to conclude that the plaintiff was permanently unfit to be a bus captain.  There was no evidence which showed that the conclusion of Dr Sha was based on any examination or test conducted on the plaintiff.  It was simply a form issued by Dr Sha on the request of the plaintiff.

153.  Ms Loh pointed out that the findings in Form 1 were in fact inconsistent with Dr Sha’s own subsequent medical findings.

154.  Ms Loh submitted that it was unclear in Form 1 as to whether the unfitness was due to the subject accident or it was a sequel of the 1st accident. In the Form 1, Dr Sha had made reference to the 1st accident for which the plaintiff was diagnosed to have depression.  She said that Dr Sha might have taken into account of his psychiatric condition when he issued Form 1.

155.  Mr Ng disagreed with the above submissions.  He stated that the remarks of the occupational therapists were only neutral remarks.  There was no suggestion in their reports that the plaintiff had exaggerated his conditions in the physical tests conducted on him.

156.  Mr Ng contended that it is pure peradventure for Ms Loh to suggest that Dr Sha had taken into account of plaintiff’s psychiatric treatment when he issued Form 1.  He stated that Dr Sha had been the plaintiff’s treating doctor even before the subject accident.  There was no such a need for him to conduct any examination or test before he issued Form 1 and which related to the subject accident only.  He stated that the reference to the 1st accident in Form 1 was only historical.

157.  I have considered the above arguments by Mr Ng and Ms Loh.  With respect to Mr Ng, I do not agree with him.  I accept the submissions by Ms Loh.

158.  I agree with Ms Loh that it is unclear as to whether Dr Sha had taken into account of the injuries sustained by the plaintiff in the 1st accident including his psychiatric condition.  If he had not, one would ask why in Form 1, he had made reference to the “history of back injury” sustained by the plaintiff in the 1st accident.

159.  Furthermore, we do not know nor had Dr Sha explained that on what medical basis or evidence that he came to his conclusion that the plaintiff is not suitable to return to his pre-accident job.  We have no information as to whether he had taken into account of the findings of the OT Reports; whether he had based his conclusion on his previous treatments of the plaintiff in the 1st accident.  There is also no evidence that the Dr Sha had examined or conducted any test on the plaintiff before he issued the Form 1.

160.  More importantly, and in my view, Dr Sha’s conclusion in Form 1 does not seem to sit well with his own findings in the subsequent medical reports.  In his medical report dated 11 June 2010, he found that the plaintiff had no neurological deficit. X-ray and PRC MRI of his lumbar spine also revealed no abnormality.  He also confirmed in his referral letter to the Urology Department dated 17 November 2010 and the Pain Management Clinic dated 17 March 2011 that the plaintiff had no dural sac compression nor cord disc changes.  In such circumstances, it seems that there is no medical basis for Dr Sha to conclude that the low back pain of the plaintiff has prevented him from returning to work as a bus driver.  For the above reasons, I will not place weight on Form 1.  Indeed, the conclusion in Form 1 is also inconsistent with the objective findings of the experts.

161.  I will also not place weight on the OT Reports relied on by Mr Ng.  I am not saying for one moment that the OT Reports are unreliable or serve no useful purpose at all.  In fact, I have no doubt regarding the professionalism of the occupational therapists.  What I am saying is that, I have serious doubts regarding the genuineness of the alleged complaints made by the plaintiff to the occupational therapists.  As I have mentioned above, the plaintiff is not an honest and truthful witness at all.  What he had told the occupational therapists or the treating doctors would directly affect their assessments of the plaintiff’s medical conditions.  As submitted by Ms Loh, the reliability of the test results would depend on whether the plaintiff has exaggerated his pain or symptoms.

162.  As I find that the plaintiff is not a credible witness.  I do not think I could derive much assistance from the test results of the OT Reports nor the opinion of Dr Sha (as per Form 1) when it comes to assessing whether the plaintiff could return to his pre-accident job.  The test results and the opinion are based on the alleged pain, symptoms and disabilities of the plaintiff which I find to be unsubstantiated as per the agreed findings and assessment of the experts.

163.  In my view, the test results in the OT Reports and the opinion of Dr Sha are basically a record of the subjective complaints of the plaintiff.  They may be regarded as therapeutic evidence of the plaintiff’s subjective complaints.  As explained by Deputy District Judge H Leong (as he then was) in Gurung Kamala v Hong Wei Limited, DCPI 1660/2010 dated 26 March 2012, he states at paragraphs 78 to 81 that: -

“ 78. However, when reading medical documents like records and reports, the court must be aware that it is not the usual duty of the attending doctors (and therapists) to judge whether a patient’s subjective complaints (eg pain and tenderness) are truthful or not.  A doctor is bound by “doctor-patient trust” and it is not a doctor’s role to “test” the evidence or to “cross-examine” the patient, so as to say, to ascertain their truthfulness.

  79.     Of course, one would expect a doctor to document such if there were glaringly obvious inconsistencies of complaints which could not be explained by any known scientific medical knowledge.  However, most of the time, in the absence of such inconsistencies, a doctor would most likely record what he or she was told by the patient as the “medical history”.

  80.     Thus, the “medical history” of a patient is essentially subjective and may be treated, under the proper circumstances, as no more than hearsay evidence as what the patient has informed the doctor at the time of consultation.

  81.     The court may often be in a better position to assess the truthfulness of any subjective medical history in that it can, amongst others, review all available evidence and hear the opposing Counsels “testing” the evidence.”

164.  Similar observations are made by Deputy High Court Judge Marlene Ng in Bai Siba Kumar v Nishimatsu Construction Company Limited and Another, HCPI 883/2012, dated 8 October 2013.  The observations are made in the context of whether psychiatric expert evidence should be adduced at trial.  The learned Judge draws a distinction between therapeutic factual evidence and forensic psychiatric expert evidence. She explains at paragraphs 62 to 65 that: -

“ 62. Ms Wai reiterated Master Leong’s observations that the forensic psychiatrist and the treatment psychiatrist would perform the same exercise by taking the plaintiff’s medical history and account of his problems, arrive at a diagnosis of his psychiatric condition, and consider the appropriate psychotherapy and/or pharmacological intervention. It was further suggested that since the forensic psychiatrist would not question the plaintiff’s subjective account of his symptoms, a psychiatric expert report would be unnecessary and updated treatment records/reports alone would be sufficient.

63. In my view, such arguments failed to recognize the difference between therapeutic psychiatric factual evidence and forensic psychiatric expert evidence which distinction was succinctly summarised by Bharwaney J in Hung Sau Fung v Lai Ping Wai as follows:

“46.   A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person.  These are all matters of fact.  Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact.  However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from the court……”

64. Such difference has been further explained in paragraphs 148-152 of my decision in Lau Mei Wa. Whilst it is correct to say that psychotherapists normally adopt a non-judgmental attitude within a doctor-patient relationship in respect of the patient’s account of his/her medical history, complaints and symptoms, the same cannot be said for the psycho-legal expert who is obliged to carry out an impartial evaluation in a forensic context for the purpose of litigation. Such expert is ultimately answerable to the court and not to the patient, and is therefore bound to make an objective and dispassionate assessment of the psycho-legal issues relevant to the litigation by testing rival diagnostic hypotheses to ascertain the psychiatric fallout as a result of the index incident and by subjecting the information from and/or about the claimant to critical scrutiny, eg by seeking verification or corroboration from (a) historical/ updated treatment notes/records and reports, (b) forensically-focused mental state examinations conducted by the expert, (c) collateral interviews with family members and/or (d) witness statement. The object is to see whether the claimant’s assertions can be supported or should be refuted, and to consider whether the claimant is dissembling or not. Hence, as explained in Ngai Ping Kwan, it is not unusual for therapeutic and forensic decision-making to differ, and it is not a rarity to come across psychiatric expert reports that conclude that the claimant is malingerer with no diagnosable psychiatric illness. For example, critical evaluation by the defendant’s psychiatric expert in Ho Man Fong v Sime Darby Motor Services Limited led her to the opinion that the plaintiff in that case had exaggerated her symptoms such that her complaints could not be relied upon for a useful diagnosis. In that case, the trial judge preferred the opinion of the defendant’s expert that there was no psychiatric disorder, especially post-traumatic stress disorder.

65. The aforesaid distinction between treatment and forensic psychiatric expert evidence should allay concerns that knowing claimants might “invent” subjective symptoms to fit in with the clinical presentation of recognizable psychiatric illnesses. Whilst I accept that cross-examination of a claimant on his professed complaints/ symptoms might to some extent expose any such “inventions” or alternatively affirm the veracity of such complaints, it is still often necessary to have the benefit of critical evaluation from a medical perspective to assist the trial judge in forming a view as to whether the criteria for a recognizable psychiatric condition have been satisfied.”

165.  In the particular circumstances of the present case and in light of the view taken by me with regard to the credibility of the plaintiff, I am of the opinion that OT Reports and the conclusion of Dr Sha in Form 1 may be treated as the therapeutic evidence of the plaintiff’s subjective complaints and which are shown to be medically inexplicable by the experts.  The agreed findings and the assessment in the joint expert report are the forensic expert evidence of the injuries sustained by the plaintiff in the subject accident.  The joint expert report is an exposition of the plaintiff’s alleged subjective complaints.  I prefer the agreed findings and assessment of the experts to those of the OT Reports and Form 1.

166.  I shall now deal with the opinion of the experts on this issue of whether the plaintiff can return to work as bus captain.

(b)  opinion of the experts

167.  Dr Tio considered that the plaintiff would be marginally able to resume his pre-accident job as bus driver.  At paragraph 82 of the joint expert report, he stated: -

“Dr Tio: he should be considered as marginally able to resume his duty as a bus driver taken into consideration that his duty involves the lives of hundreds of passengers. However, he is considered more fit for other lighter duties such as a security guard or a petrol station attendant etc.”

168.  Dr Wong took the view that the plaintiff could return to work as bus captain.  In the same paragraph, he stated: -

“82. Return to Work:

Dr Wong: From the orthopaedic perspective, Mr So should be capable of returning to work on his pre-accident job as a bus driver or other previous jobs he performed.  His work efficiency and capacity should only be mild/very mildly affected by the accident.”

169.  Ms Loh disagreed that the plaintiff should only be considered as marginally able to resume his duty as a bus driver.  She submitted that the opinion of Dr Tio lacks medical basis.  He had failed to explain the physical limitations or restrictions that had prevented the plaintiff from returning to his pre-accident job.  He had failed to explain why the plaintiff could not resume the driving work.

170.  Ms Loh submitted that in the joint expert report, Dr Tio shared the opinion of Dr Wong that the plaintiff’s back is in a reasonably satisfactory condition.  This is confirmed by the objective physical and radiological examinations.  They both agreed that the plaintiff had a good prognosis.  The plaintiff had reached the MMI and would not require any further treatment, not even symptomatic relief treatment.  They also found that the plaintiff’s severe pain and weakness in the back and lower limbs were not supported by medical findings and were inexplicable.  As such, Ms Loh submitted that there was no reason or justification for Dr Tio to conclude that the plaintiff was only marginally able to resume his duty as bus driver.

171.  Ms Loh contended that the major consideration of Dr Tio seemed to be “the lives of hundreds of passengers” and not because of certain physical disabilities that had incapacitated the plaintiff from driving.  She argued that Dr Tio seemed to have taken into account of the previous psychiatric illness of the plaintiff which was inappropriate for the present case.  Ms Loh repeated that there was no evidence to support that the plaintiff had suffered psychiatric illness as a result of the subject accident.

172.  Ms Loh also expressed doubts regarding the alternative jobs suggested by Dr Tio.  She submitted that the work of a security guard or petrol station worker would also require constant standing and walking.  These jobs would also not be suitable for the plaintiff if the plaintiff had persistent low back pain and weakness in the lower limbs.

173.  Ms Loh submitted that the court should adopt the opinion of Dr Wong which was more reasonable and logical and having considered the objective medical findings as stated in the joint expert report.  In any event, she submitted that according to Dr Tio, the plaintiff was considered marginally able, as opposed to not able, to resume the work of a bus driver.

174.  Mr Ng disagreed with Ms Loh. He explained that Dr Tio was of the view that the plaintiff was only marginally able to resume his pre-accident job because the plaintiff’s work efficiency and capacity were affected.  He referred the court to the comment of Dr Wong above and argued that since Dr Wong was of the opinion that the plaintiff’s work efficiency and capacity should be mildly/very mildly affected by the subject accident, this tantamounts to saying that it would be difficult for the plaintiff to return to work as a bus driver.  He submitted that the plaintiff should not be able to return to the full duties as a bus driver.  In support of his argument, Mr Ng referred the court to the case of Khan Amar v Cheung Ying Construction Engineering & Another, CACV 153/2006 (unreported) dated 5 June 2007.

175.  In the Khan Amar case, the agreed medical report suggested that the plaintiff should be able to return to his pre-accident job as a construction site worker but with reduced efficiency at work.  Alternatively, the plaintiff could elect to work on other light to moderate manual work such as security guard.  On the basis of the agreed medical report, the trial judge held that it would be difficult for the plaintiff to return to work on a construction site.  On appeal, the holding of the judge was upheld.  At paragraph 53 of the judgment, Stone J, giving judgment for the Court of Appeal states: -

“53. For our part we did not read this passage as evincing the proposition that in spite of his injuries Mr Khan would be able to revert to the level of physicality of his previous construction site work. We consider that that which was being suggested within the rubric ‘with reduction in efficiency at work’ was that whilst he may be able to work in some capacity on a construction site, he was not in a position to return to the type of more physically demanding work that he had been doing prior to his accident; or, in other words, that he was not as able a worker as before his accident. Dr Wong also was saying that henceforth Mr Khan could reasonably be expected to a perform light to moderate manual work; this was precisely what he did, and it was on this basis that the learned judge assessed loss of earnings.”

176.  Mr Ng further relied on the OT Reports and Form 1 and submitted that because the driving job required working with prolonged sitting posture, the use of foot paddle control and steering wheel control with upper limbs, the plaintiff should not be able to return to work as bus captain.

177.  With respect, I do not agree with the submissions of Mr Ng.  In my view, the Khan Amar case is quite different from the present case.

178.  In the Khan Amar case, Dr Wong (the same Dr Patrick Wong Kwok Shing as in the present case) was of the opinion that Mr Khan could return to work as a construction site worker but subjected to the fact that he would have a reduced work efficiency.  In my view, the opinion of Dr Wong in the Khan Amar case was a qualified one.  It is certainly open to the learned judge in that case, and which was upheld by the Court of Appeal, to conclude that in effect, Mr Khan was not in a position to return to the type of more physically demanding work that he had been doing prior to his accident.

179.  In the present case, I do not read that the opinion of Dr Wong as subjected to a similar qualification.  When one reads the opinion of Dr Wong in context, what he is saying is that, the plaintiff could return to work as a bus driver and that the injuries he sustained in the subject accident should only mildly/very mildly affect his work efficiency and capacity.  This is quite different from asserting as in the Khan Amar case that the plaintiff’s work efficiency would be reduced.

180.  Having considered the above, I accept the submissions of Ms Loh that Dr Tio has not explained the medical basis based on which he found that the plaintiff could only marginally able to return to work as bus driver.  As pointed out by Ms Loh, Dr Tio also found that the subjective complaints of persistent low back pain and weakness to the lower limbs were not supported by any objective medical findings and were inexplicable.  Both Dr Tio and Dr Wong also agreed that the functional impairment of the plaintiff’s lower limbs is not expected (see paragraphs 78 of the joint expert report).  They also recorded that during the interview, the plaintiff could sit for 30 minutes until he requested to use toilet (as opposed to the plaintiff’s complaint that he could not sit for more than 20 minutes).  They both also observed that the plaintiff could stand and walk normally.

181.  It should also be worth repeating that according the findings of the joint expert report, both Dr Tio and Dr Wong found that there was subjective reduction in sensation over the plaintiff’s whole right limb which was not of dermatomal distribution and is medically inexplicable.  There were reduced in motor power over the plaintiff’s lower limbs which he attributed to the back pain elicited but there was no muscle wasting or reflex abnormality detected.  It is also important to note that according to the measurement of muscle bulk done by the experts, they found that the girth of the thigh diameter at 10 cm above patella is the same for both legs namely at 46.5 cm.  The girth on both sides of the maximum calf diameter is also the same at 35.5 cm.  Both Dr Tio and Dr Wong also agreed that there were inappropriate physical signs suggesting these were elements of non-organic nature within the plaintiff’s symptoms and disabilities.  On these objective medical findings and assessments of both Dr Tio and Dr Wong, I do not see any medical evidence which supports the submissions of Mr Ng that the plaintiff could not return to work as bus captain.

182.  As pointed out by Ms Loh, the major consideration of Dr Tio seemed to be the “lives of hundreds of passengers”.  I can fully understand the concern of Dr Tio.  But Dr Tio does not seem to have explained how that relates to the physical ability or inability of the plaintiff in returning to work as a bus captain.  On the contrary, Dr Wong is looking at this issue purely from an orthopaedic perspective as he had clearly stated in paragraph 82 of the joint expert report (see paragraph 168 above) though, at the conclusion of the joint expert report, both himself and Dr Tio had also expressed that if one has to explain the alleged subjective complaints of the plaintiff, one may have to explore them from a psychiatric perspective.  But as mentioned above, there is no evidence before the court which suggests that the plaintiff is suffering from any psychiatric illness and that it is related to the subject accident.  In my judgment, the plaintiff can return to his pre-accident job as a bus captain.  I accept the opinion of Dr Wong.

WHAT IS THE APPROPRIATE SICK LEAVE PERIOD

183.  The plaintiff was granted continuous sick leave for about 19 months by the government doctors of O&T Department of TMH.  This is from the date of the accident on 7 February 2009 to 20 September 2010.  Upon expiry of his sick leave certificate, the plaintiff consulted Dr Lau and obtained further sick leave from 21 September 2010 up to 14 February 2011.  Thereafter, the plaintiff was granted intermittent sick leave.

184.  The Review Certificate (Form 9) issued by the Medical Assessment Board certified that the sick leave period up to 20 September 2010 was necessary.

185.  Dr Tio considered that the sick leave granted by the treating doctors as reasonable and appropriate.

186.  Dr Wong found that sick leave of at most 6 weeks should be adequate in view of the negative objective findings against the plaintiff and that the relatively mild nature of the back injury sustained by the plaintiff.

187.  Mr Ng submitted that the court should allow the sick leave period granted by all the treating doctors ie from 7 February 2009 up to 14 February 2011 as this is reasonable and appropriate as per the view of Dr Tio.  Mr Ng further argued that an extra 3 months from 14 February 2011 should also be allowed as a buffer period for the plaintiff to find alternative employment.

188.  Ms Loh relied on the opinion of Dr Wong and contended that the court should allow sick leave of no more than 6 weeks.  She submitted that it would be more than generous if sick leave was endorsed up to 20 September 2010.

189.  On this issue, it is to be noted that the court is not bound by mere issue of sick leave certificates by the doctors.  As pointed out by Le Pichon JA in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at paragraph 18:

“Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award for pre-trial loss of earnings and no other. Sick leave certificates are no more that a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers V-P observed in: Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep., CACV 172/2004, [2005] HKEC 1077) at para.9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.” – underline provided

190.  For the present case, I am of the view that a sick leave period of 12 months shall be allowed. I believe that this is appropriate and reasonable having considered all the available evidence including the medical evidence before the court. In particularly, I have considered :-

a) the relatively mild injury sustained by the plaintiff as per the opinion of Dr Wong. The plaintiff was found by the experts to have sustained only “soft tissue contusions injury over his buttocks and possibly some soft tissues back sprain injury” (see paragraph 71 of the joint expert report);

b) the complaints by the plaintiff as to his alleged persistent low back pain and weakness in both lower limbs are found by the experts to be medically inexplicable and out of proportion.  His alleged symptoms and disabilities are also found to be of non-organic nature;

c) my finding that the plaintiff’s consultation of Dr Lau is likely to be for the purpose of obtaining further sick leave; and

d) my finding that the plaintiff is a malingerer.

OTHER MATTERS RAISED

191.  For the sake of completeness, I will briefly deal with other matters raised by the parties.

(a) Similarities between the 1^st accident and the subject accident

192.  The plaintiff was cross-examined at some length regarding the 1^st accident.  Having considered his evidence in relation to the 1^st accident, I agree with Ms Loh that there are similarities between the 1^st accident and the subject accident.

193.  Firstly, both accidents occurred shortly after the commencement of the plaintiff’s employment.  The 1^st accident occurred less than a month of his employment with the Hospital Authority whilst the subject accident occurred on the 8^th day when the plaintiff returned to work for the defendant after his sick leave on 6 February 2009.  In both accidents, the plaintiff claimed to have sustained back injuries.

194.  Further, in both accidents, the plaintiff claimed to have persistent back pain and that the pain had aggravated to such an extent that he had to walk with a frame.

195.  According to the medical notes in relation to the 1^st accident, the plaintiff had to walk with a frame.  He also complained to have difficulty in “doing shoeties and putting on socks”.  But examination revealed normal findings.  There was no muscle spasm.  The alignment of his back was found to be normal and with no paraspinal muscle spasm.  MRI taken on 13 March 2005 also showed no evidence of vertebra disc prolapsed.  All neurology was normal.  One of the treating doctors for the 1^st accident also remarked that “the symptoms of Mr So is out of proportion to the physical finding”.  Similar comment was made by the experts in the joint expert report in relation to the subject accident.

196.  It is to be observed that in about mid 2005, the plaintiff was found to have suicidal ideation and was referred to psychiatric treatments.  He was later diagnosed to have moderate depression and further sick leave was granted.

197.  Ms Loh submitted that the plaintiff had made use of his medical conditions to apply for compassionate rehousing.  He applied for rehousing on the medical ground that his living environment was “unsatisfactory and affected rehabilitation of his mental illness”.  Under cross-examination, the plaintiff confirmed that his compassionate rehousing application was subsequently granted in about 2006/2007 and he was relocated.

198.  Ms Loh also referred the court to the comments of the treating doctor at TMH who again casted doubt about the genuineness of the plaintiff’s complaints.  The doctor stated “…… can’t rule out some degree of malingering since social reason”.  Ms Loh submitted that the “social reason” may refer to the plaintiff’s application for compassionate rehousing.

199.  It is to be noted that for the 1^st accident and the subject accident, the plaintiff was granted sick leave for about 2 years each.  After his 1^st accident in October 2004, the plaintiff has not resumed any employment.  He was out of work for a period of over 9 years.  During this period of time, he had sought and received substantial sick leave payments and compensations.  He also relied on CASS from about mid 2006 until about May 2009.

200.  In the present case, it is not for me to make any findings in respect of the plaintiff’s 1^st accident.  But having considered the evidence of the plaintiff under cross examination and the medical notes and records in the 1^st accident, I do agree with Ms Loh that there are quite a lot of similarities between these 2 accidents.  It seems to me that the alleged persistent back pain of the plaintiff in the 1^st accident was also not supported by medical findings.  I also have doubts regarding the genuineness of his alleged persistent back pain in the 1^st accident.

(b)  The plaintiff’s continuous employment with the defendant

201.  The parties are in dispute as to whether the plaintiff could have continued his employment with the defendant if not for the subject accident. Mr Ng submitted that because of the constant demand for bus driver by the defendant and as revealed by the defendant’s recruitment advertisements in the newspapers, it is more probable that if not for the subject accident, the plaintiff would have passed the probation and continued his employment with the defendant until his retirement at 60.

202.  Ms Loh disagreed.  She said that the plaintiff had failed to demonstrate that he had any incentive or motivation to work for the past 9 years.  She submitted that after a minor back injury in the 1^st accident, the plaintiff had not resumed any employment since October 2004.  It was not until 31 January 2009 that the plaintiff commenced employment with the defendant as bus captain.  But then the plaintiff was absent on the first day of work and on 6 February 2009.  When he returned to work in the early morning on 7 February 2009, he met with the subject accident.  This showed that for the past 9 years, he had only worked for 4 days and during which he had been living on sick leave payments, compensations and CSSA.  Ms Loh argued that there is no evidence that the plaintiff had a steady work history or any earning records.  It is doubtful whether the plaintiff could have passed the probation and continued his employment with the defendant even if the plaintiff did not have the subject accident.

203.  In my view, the fact that the defendant has a constant demand for bus captain does not necessary follow that the plaintiff would be continued to be employed by the defendant until aged 60.  Under the contract of employment, the plaintiff was subject to a probation period and that his contract was renewable every 2 years.  According to the defendant’s witnesses, the probation and renewal of the plaintiff’s employment would depend on the work performance and attendance of the plaintiff.  However, in light of the evidence that the plaintiff had been out of work for 9 years and that he does not have a steady work history, I am not convinced that it is more probable that the plaintiff would continue to be employed by the defendant until aged 60.  As submitted by Ms Loh, the plaintiff failed to demonstrate his incentive or motivation to work, at least not for the past 9 years.  It is also observed that for the 8 days of employment with the defendant, the plaintiff was on sick leave on his 1^st day and 7^th day.

QUANTUM

(a) Pain, Suffering and Loss of Amenities (“PSLA”)

204.  In the Re-Revised Statement of Damages, the plaintiff seeks an award of $500,000 under this head. In the opening submissions of Mr Ng, he claimed on behalf of the plaintiff a sum of $300,000 as PSLA.  He relied on 2 cases namely Li Sau Keung v Maxcredit Engineering Ltd & Ors, HCPI 530/2001, DHCJ Carlson (unreported, dated 21 October 2002) and Yeung Tai Hung v Hong Kong Baptist Hospital Au Shue Hung Health Centre, HCPI 686/2004, Suffiad J (unreported, dated 20 July 2006).

205.  In the closing submissions, Mr Ng revised the claim to a sum in the range of $200,000 to $300,000. He further relied on the case of Lau Chi Lam v Caritas-Hong Kong, DCPI 41/2009, HH Judge Leung (as he then was) (unreported, dated 30 March 2010).

206.  Mr Ng submitted that in both the Li Sau Keung case and Yeung Tai Hung case, the court awarded a sum of $300,000 as PSLA for the plaintiff suffering from soft tissue injuries and contusion to the back.

207.  Ms Loh also referred the court to the following authorities :-

a)	Wong Chui Wa v Ng Yuk Chun HCPI 258/1999, Master De Souza (unreported, dated 16 November 2001);
b)	Yip Tung Fung & anor v Pun Chi Leung HCPI 2149/2006, HH Judge M Ng (as she then was) (unreported, dated 23 November 2007);
c)	Wong Kin Hung v Chan Wai Ming DCPI 1223/2006, Deputy District Judge Wahab (unreported, dated 16 February 2007);
d)	Ng Ting Chun v Chung Man Chun Philip DCPI 1070/2007, Deputy District Judge J Ko (unreported, dated 19 June 2008);
e)	Chu Sio Iong v Cheung Ho Yin & anor DCPI 580/2011, HH Judge K Yee (as he then was) (unreported, 7 May 2013);
f)	So Cho Yin v MTR Corporation Ltd HCPI 1069/2006, HH Judge Leung (as he then was) (unreported, 7 April 2008);
g)	Yip Piu v Chung Kam Fei Catherine & anor HCPI 1168/1999, Cheung J (as he then was) (unreported, 27 November 2000);
h)	Shek Kam Ching v Po Kee Construction Engineering Ltd & anor [2002] 3 HKLRD 795, Deputy Judge To (as he then was);
i)	Chair Sai Sui v International Country Club Ltd & anor HCPI 522/1998, Master B Kwan (unreported, dated 26 October 1999); and
j)	Siu Siu King v Wong Chak Wing HCPI 479/2003, Master R Yu (unreported, dated 14 November 2008).

208.  Ms Loh submitted that in the Wong Chiu Wa case, the court also found the plaintiff as a malingerer who had exaggerated her minor buttock and back soft tissue contusion injury.  An award of $30,000 was granted as PSLA.

209.  Ms Loh submitted in the others cases referred to above, the court had awarded PSLA in the sum of $80,000 to $100,000 for genuine soft tissue back contusion without pathological damage or neurological deficit.  In some of the more serious back injuries cases involving prolapses or fracture to the lumbar spine leaving mild to moderate residual pain and disabilities, award of $150,000 was given by the court.

210.  I have considered the above cases. In view of the relatively mild injury sustained by the plaintiff and my comments above in relation to the genuineness of the plaintiff’s claim, I am of the opinion that a sum of $130,000 should be awarded to the plaintiff as PSLA.  In this connection, it is to be noted that the plaintiff had denied that he used to go swimming, cycling and playing basketball before the subject accident.  I further note that the Wong Chiu Wa case relied on by Ms Loh dated back to 2001.

(b)  Pre-trial loss of earnings and MPF

211.  It is not disputed that the plaintiff received a sum of $2,097.47 as his salary before he had the subject accident on 7 February 2009.  On this basis, Mr Ng contended that the average pre-accident monthly earnings of the plaintiff should be $15,731.02.  This is calculated on the basis of 4 days of work by the plaintiff on 1st, 2nd, 4th and 5th February 2009 (ie $2,097.47 ÷ 4 days × 30). Mr Ng had excluded 31 January 2009 and 6 February 2009 as the plaintiff had taken sick leave on these 2 days. 6 February 2009 was also excluded as it was plaintiff’s rest day.

212.  Ms Loh disagreed with the calculation. She submitted that the average monthly earnings of the plaintiff should be calculated on a 5-day basis to take into account of 3 February 2009.  She stated that the average monthly earning of the plaintiff should be $12,366.30 ($2061.05 ÷ 5 days × 30).  She said that this monthly figure is already higher than the average monthly earnings of 2 comparable bus captains (at $12,077.57 and $11,778.52) employed by the defendant one year earlier than the plaintiff.  According to Mr Yeung, these 2 comparable bus captains had similar experience as the plaintiff and that they had not taken a lot of sick leave.

213.  I accept the calculation by Ms Loh, this is because if the court is to adopt the figure proposed by Mr Ng at $15,731.02, it would mean that the average monthly earnings of the plaintiff in year 2009 would be higher than the average monthly earnings of a bus captain advertised by the defendant in late 2012 (which is at $15,000) and in October 2013 (which is at $15,500).  This cannot be right.

214.  I also accept that since about July 2009, the monthly earnings of the plaintiff was increased by 1.51% up to $12,553.04 a month.  The loss of pre-trial earnings from 7 February 2009 up to 6 February 2010 would thus be as follows: -

$12,366.30 × 4 months) + ($12,553.04 × 8 months) = $149,889.52

Plus MPF $7,494.48 ($149,889.52 × 5%)

The claim under this head would be $157,384.00 ($ 149,889.52 + $7,494.48).

(c) Loss of earning capacity

215.  Counsel for both parties had initially agreed that a sum of $39,000 be awarded to the plaintiff as loss of earning capacity.  In Mr Ng’s further written submissions, he adjusted the award to $59,688 on the ground that the base figure for calculating the plaintiff’s loss of future earnings has increased from $6,500 per month to $9,948 per month (ie the average monthly salary of security guard).  However, in view of my decision that the plaintiff can return to his pre-accident job, the above submission of Mr Ng no longer applicable.  I will award a sum of $39,000 as plaintiff’s loss of earning capacity.

(d) Special damages

216.  I will allow the sum of $23,000 as agreed.

(e) Lunch allowance

217.  I will allow a sum of $3,000 as claimed.  I take the view that if not for the subject accident, the plaintiff would have satisfied the requirement of working for the defendant as bus captain for 25 days.

(f) Other heads of claim

218.  In light of my decision that the plaintiff could return to his pre-accident job, I will dismiss his claim for loss of future earnings and MPF, loss of future free bus travel benefit, the claims for farewell money, the value of gold medal and death gratuity.  His claim for pre-trial and post-trial loss of overnight shift allowance is also dismissed.  The plaintiff accepted that application for overnight shift would only be allowed after he had completed 2 years of employment with the defendant.  However, had the plaintiff resumed his employment with the defendant on 6 February 2010, he was still not eligible to apply for overnight shift duty.

219.  I will also dismiss his claim for pre-trial loss of free bus travel benefit.  As mentioned above, I find his evidence on this claim as unreliable and untruthful.  He was unwilling to confirm whether he and his family had continued to use the bus passes despite his admission that they had retained the bus passes and not returned to the defendant.

(g) Summary

220.  The amount awarded to the plaintiff may be summarized as follows: -

		$
(i)	PSLA	130,000.00
(ii)	Pre-trial loss of earnings	157,384.00
(iii)	Loss of earning capacity	39,000.00
(iv)	Special damages	23,000.00
(v)	Lunch allowance	3,000.00
		352,384.00
	Less ECC compensation	(595,263.26)
	Balance:	(242,879.26)

(h) Interest

221.  As agreed, interest on general damages would be at the rate of 2% from date of the writ to date of judgment and that interest on special damages would be at half of the judgment rate from the date of the subject accident up to the date of judgment.

COSTS

222.  As the plaintiff has recovered a sum which is less than the employees’ compensation that he had received, I will make an order nisi that the plaintiff do pay the costs of these proceedings as from 9 May 2012 to be taxed if not agreed (see consent order dated 8 May 2012).  The plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulation.