LAI SIN YAN ELSIE v. TATA COMMUNICATIONS (HONG KONG) LTD

HCPI 1092/2015

[2019] HKCFI 2815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1092 OF 2015

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BETWEEN

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J U D G M E N T

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1.  This is an action for damages for personal injuries sustained by the plaintiff in a “teambuilding” event for the Tata Communications Group of companies that was held in Singapore on 18 October 2012 at the Marina Country Club. The plaintiff, who was born on 29 October 1973, was almost 39 years old then. She is now ages 46.

2.  The defendant (“Tata HK”) is a company incorporated in and having its place of business in Hong Kong. Tata HK is part of an international group of companies known as the Tata Communications Group, and is a subsidiary of Tata Communications International Pte Ltd (“Tata Singapore”) which is a company incorporated in Singapore. The Tata Communications Group (“the Group”) consists of subsidiary companies throughout the world. In Asia, there are Tata subsidiary companies in, amongst other places, Australia, Malaysia, Philippines and Thailand, as well as Tata HK in Hong Kong and Tata Singapore in Singapore[1].

3.  Tata Singapore, acts as the Asian regional headquarters of the Asian companies within the Group[2]. The business of the Group is the sale and servicing of high quality network connectivity services. Each of the Group’s companies in the Asian countries listed above employ their own sales personnel and, within the Group, the sales personnel are collectively referred to as Global Enterprise Solutions (“GES”)[3].

4.  By a contract of employment dated 29 March 2012 the plaintiff, who holds a bachelor of arts degree in computer engineering and telecommunications[4], was employed by Tata HK as a Regional Sales Manager commencing on 2 April 2012 with an annual base salary of HK$480,000 plus “on-target commission”[5]. The plaintiff reported to Mr Rajiv Verma (“Verma”) who was a vice-president of sales employed by Tata Singapore and stationed in Singapore. Various of the sales personnel employed by the various Asian companies within the Group also reported to Verma while others reported to Mr. Emmanuel Lapierre (“Lapierre”), another vice-president of sales who was also employed by Tata Singapore.

5.  In late September/early October 2012, Tata Singapore decided to organise and hold a three day “Mercuri Value Selling Programme” workshop/conference and a one day “GES Teambuilding” event (“the Teambuilding”)[6]. The Teambuilding was supervised and run by Playlor Pte Ltd (“Playlor”), who were engaged by Tata Singapore as an external event provider to plan the games, to provide instructors to instruct and manage the teams and the participants, and to run the games[7]. Various members of the GES team employed by various of the Group’s Asian companies were required to attend and participate in both the workshop/conference and the Teambuilding[8].

6.  The plaintiff was one of eight employees of Tata HK who were required to attend the events in Singapore which took place from 15 to 18 October 2012, with the Teambuilding taking place on 18 October 2012 at the Marina Country Club[9]. All the participants were grouped into teams. The plaintiff’s group was led by Verma (“Verma’s Team”) and included Mr Siu Chi Ho (“Siu”)[10].

7.  The Teambuilding consisted of various team games[11]  designed to promote teamwork in coming up with solutions and to encourage active involvement and participation by all team members. The Teambuilding was also meant to be fun. One of the games played was called “Mini-Legs” where the team had to achieve a minimum number of feet on the ground (the number being set by an instructor) and hold that solution for 3 seconds. The game became progressively more difficult as the number of feet in a team of 10 members permitted to be on the ground became lesser and lesser.

8.  That evening, following her return to the hotel, the plaintiff experienced pain in her buttocks and back and was helped by a work colleague, Siu, to go to the Raffles Hospital where an MRI scan was carried out. That scan “showed lumbar spondylosis, most marked at the L5/S1 level where a left posterolateral protrusion possibly impinged on the left S1 nerve root”[12]. The attending doctor recorded that the plaintiff had presented with low back pain and “tenderness over the lower lumbar region of her spine”[13].

9.  The plaintiff returned to Hong Kong on 19 October 2012 and has never returned to work.

10.  The issue of liability turns on how the Mini-Legs game was played by Verma’s team and whether, and how, the plaintiff became injured in the course of playing that game. The plaintiff alleged that Verma and Tata HK were negligent and/or Tata HK was vicariously liable for Verma’s negligence even though he was an employee of Tata Singaore

The Plaintiff’s Evidence

11.  During the course of the plaintiff’s evidence, I formed the impression that the plaintiff was intelligent and articulate. The plaintiff’s evidence[14] about the game of Mini-Legs was that the initial rounds were completed with ease. The game was played in the Marina Club complex as shown in photograph at B/280. The green surface on the ground shown in the photograph was astro turf[15]. The number of feet allowed on the ground kept reducing until the number was reduced to 6 feet. After some discussion, Verma decided to adopt the method of stacking members into a 2-level pyramid: with 6 members at the base forming a circle and each putting their hands on the shoulders of the members next to him/her and then bending their upper bodies slightly forward, while the remaining members would climb on their backs; then each of the 6 base members would lift one of their legs off the ground and keep it off the ground for 3 seconds to complete the challenge.

12.  The plaintiff, one of 2 females on the team, was asked by Verma to be one of the members to climb to the upper level. She strongly opposed the method. However, she followed Verma’s instructions unwillingly and climbed onto the back of Siu. Some of the members at the base level did not have sufficient strength and lost their balance with the result that the human pyramid tilted and fell to one side in less than 2 seconds. The plaintiff fell and landed on her buttocks. Her upper limbs also hit the ground. She felt pain over her buttocks, coccyx and both arms.

13.  After the first failure, Verma decided to adopt a 3-level pyramid method: with either 4 or 5 members at the base and several at the second level. In the course of her cross examination, she confirmed that, as there were only 9 members on the team and not 10 members, there were 4, and not 5, members at the base of the 3-tier pyramid[16]. 3 persons were on the second tier and 2 were on the third tier.  Verma instructed the plaintiff and her female colleague, Ms Ann Koh, to climb to the highest level[17]. The plaintiff once again strongly opposed the method but, upon his insistence, again followed his instructions unwillingly. She did not, at that time, think her injury from the first fall was serious and she bore the pain and climbed up. When the plaintiff had just climbed up to the top level, the base members again lost their balance and the plaintiff fell down again. Her buttocks landed on the ground first, followed by her arms hitting against the ground.

14.  Verma immediately urged the team to try again. Again, when the plaintiff had just climbed up to the top level, the lower levels did not have enough strength and lost balance. She fell to the ground a third time, landing on her buttocks followed by her arms hitting against the ground. At this point in time, the Playlor instructor announced that Verma’s Team had failed and were not required to play Mini-Legs again.

15.  As she was suffering from pain over her buttocks, coccyx and arms, the plaintiff requested a rest from the other games and participated in them only minimally.   At lunch time she took some painkillers. She took the bus with others back to the hotel and arrived at about 4:00 pm. She took a nap. At 6:00 pm, when she woke up, the plaintiff felt numbness over her lower body and pain over multiple sites at her back and upper body. She immediately telephoned Siu for help. Siu contacted the hotel manager who arranged the hotel doctor to see the plaintiff. Upon the recommendation of the hotel doctor, the plaintiff was taken to Raffles Hospital for treatment.

16.  I will return to the plaintiff’s evidence after I have discussed the evidence of Ms Ho Sau Lan (“Ho”) and Siu.

Evidence of Ho Sau Lan

17.  Ho was the human resources director of Tata Singapore with responsibility for Tata HK at the relevant time, being also the human resources director of Tata HK.  She left the employ of Tata Singapore in June 2017 and is now the senior human resources leader in Arthur J Gallagher, insurance brokers. She gave evidence that:

(i) as Tata Singapore did not employ staff specializing in organizing teambuilding events for employees, it was decided by Tata Singapore to engage an external event provider[18];

(ii) three companies were short-listed and Playlor was selected, following face to face meetings with Playlor representatives and a consideration of the games they recommended. Of the other 2 companies pitching for the contract, Ho decided one was not cost effective and the games offered by the other were not suitable as they were too energetic and similar to outward bound type of activities[19];

(iii) Playlor had a proven track record and had organized teambuilding events in Singapore for, amongst others, Western Union Business Solutions, Hoerbiger, Procter and Gamble and SATS Catering[20];

(iv) During her meeting with Playlor, Ho had been taken through a menu of games recommended by Playlor; some she rejected and, on the recommendation of Playlor, chose 6 games including Mini-Legs[21].

18.  I find that the resulting Playlor’s contract did deal with safety. The contract[22] provided that:

(a) Playlor would undertake the planning and organizing, provide instructions and would manage the teams and participants[23];

(b) Playlor would provide game officials so that “[y]our organizing committee can safely leave the competition to us, and be part of the event”[24];

(c) “Safety is our Priority”[25];

(d) “Under Playlor’s involvement, you and your colleagues do not need to lift a finger on your event day. Just turn up ready to play, and enjoy the game”[26]

19.  In the course of her evidence, Ho made the point that the games were to be fun and enjoyable but that safety was a major consideration. She agreed in the course of her cross examination that there was an inherent risk that those being held up during Mini-Legs might fall[27] but she disagreed that a reasonable employer would consider that Mini-Legs was an unsafe game[28].

20.  I find Ho to be a credible witness and I accept her evidence. I find that Playlor was contractually engaged to run the chosen games safely under the supervision of Playlor’s instructors.

The Evidence of Siu Chi Ho

21.  Siu, who was still employed (as Associate Director, Global Account Sales) by Tata HK at the time of trial, gave evidence about what happened when Verma’s Team played “Mini-Legs”. The plaintiff submitted that he was an honest, reliable and credible witness and that I should accept his evidence.

22.  However, I have decided that I cannot place any weight on his evidence.

23.  Siu signed his witness statement on 29 March 2016[29].  Ho signed her supplemental witness statement[30] on 9 January 2017. This exhibited the earlier statement that Siu had made to Tata HK on 25 February 2016[31].  That statement of 25 February 2016, in material respects, was inconsistent with Siu’s witness statement of 29 March 2016.

24.  The circumstances as to the making of Siu’s statement of 25 February 2016 was explained by Ho[32]. In cross-examination, Siu accepted that, in all material respects, what was set out in Ho’s supplemental witness statement was true and correct[33].  After his video teleconference with Mr Sujoy Thakurta (“Sujoy”), senior legal counsel of Tata Singapore and Ho, Sujoy prepared a draft statement for Siu to consider and sign.  Siu accepted that he had been sent a draft, that they corresponded on its contents, and that his comments were reduced to the final version which he agreed and signed[34]. He did make alterations, as a straightforward comparison between the draft[35] and the amended statement he signed on 25 February 2016[36] shows.  These amendments are shown in the document that I have recreated below with tracked changes in red:

“Statement of Siu Chi Ho

Name: Siu Chi Ho

Hong Kong Identification Number: xxxxxxx

Age: 41 45

Designation: Senior Manager Partner Services

Address:

Telephone Number: xxxxxxxx

______________________________________________________

I Siu Chi Ho (HKID No xxxxxxx) have read the Statement of Claim filed by Lai Sin Yan Elsie against Tata Communications (Hong Kong) Limited and comment as follows:

Elsie was on my back during one of the rounds of the Mini Legs game. I did not at any time see or feel Elsie falling when I was trying to balance myself with Elsie on my back. In a subsequent round of the same Mini Legs game, I was on the 2^nd layer on top of Ali Ahmed. I could not see Elsie or anyone as my head was facing the ground. I do not recall her falling or anyone else saying that she had fallen. I am sure that she did not exhibit any signs of injury. There was an instructor at hand at all times and if someone was injured I am sure that they would have stopped the game.

After the Mini-Legs game Elsie went on to play other games, right to the end of all the games for the day. She seemed normal to me. At no time during these games did she complain of any pain or discomfort. After the games I was with Elsie in the bus and she was fine, chatty and in good spirits. We went to the Holiday inn hotel in Cavanagh Road where we were staying and planned to freshen up and meet later for dinner. We reached the hotel before 5 pm and were supposed to attend a company dinner around 7pm. Later when I called Elsie she said that she was in pain. Thereafter I began to call some of my other colleagues like Terence and Sau Lan (our HR director).

Two hotel staff and I then went to Elsie’s room and we asked if we needed to engage a doctor. A doctor came and checked and he advised that we should go to a hospital. The ambulance arrived and I accompanied her. Elsie said that she was experiencing some pain in her back and claimed that she could not move. Therefore I sent her back to the hotel to rest and then I came out to join the group for dinner. The next day my colleague Tiffany Wong and I accompanied Elsie on the same flight back to Hong Kong.

Signed

Siu Chi Ho

19^th 25^th February 2016”

25.  On 29 March 2016, he signed a witness statement prepared by the plaintiff’s solicitors stating, amongst other things, the following:[37]

“9. The method adopted by Rajiv involved the stacking of 2 levels of group members with about 6 members at the base. The 6 members formed a circle by putting their left and right upper limbs onto the left and right shoulders of the members next to them. The members at the base then squatted down to allow members of the upper level to directly climb onto their backs. The members at the base then stood up and bent their upper bodies forward as they stood up. The members at the upper level rode on their backs. When all the members felt it was okay, the members at the base raised one of their feet simultaneously and stood on the ground with one foot only in order to match the number announced by the instructor. The game would be completed when the human pyramid was maintained for 3 seconds.

…

11. The game was played in the way as referred to above. After the member at the base including me formed a circle and squatted down, Lai Sin Yan climbed onto my back directly. The members at the base then stood up simultaneously. Since I maintained bending my upper body forward as I stood up, I was unaware of the condition of the members at the upper level. When the members at the base lifted one of their feet simultaneously and stood on the ground with one foot only, some members at the base did not have sufficient strength. The human pyramid tilted and fell in less than 2 seconds. Because I was not the one who did not sufficient strength and the human pyramid did not tilt towards me, I only lost some balance and did not fall onto the ground.

12. After composing myself, I found Lai Sin Yan fallen onto the ground. I helped her up. Before I could enquire about her condition, some group members had already said that 2 levels of the human pyramid did not work and proposed 3 levels. Accordingly, Rajiv decided to adopt 3 levels and to start the game immediately. Since some male members had much taller build than me, I became a 2^nd level member this time, leaving only 4 members to form the base. As I climbed up the back of the base members, I felt that they were sweating heavily. After about 2 seconds, as some members told me that I had to start all over again, I climbed down from the back of the base members. After I had climbed up the back of the base members again, my upper body was also bent forward in order to allow members at the top level to climb up. I therefore did not know what had happened and who became the member at the top level. I only knew that our second attempt also failed.

…

14. After all the games were completed, the Company arranged buses to take all participating staff back to the hotel. As I was waiting for the bus and after I had boarded the bus, Lai Sin Yan, another female colleague from Hong Kong named Tiffany and I came together to have a chat. I was only at that time that I learned that Lai Sin Yan fell more than once when playing the game “How many feet”. I was surprised and, together with Tiffany, asked her whether or not she was alright. At that time, she said she suffered from some pain over her waist/lower back.”

26.  The fundamental differences between the statement of 25 February 2016 and the witness statement of 29 March 2016 are:

(a) the plaintiff did not fall;

(b) after Mini-Legs, the plaintiff played other games, right to the end of all the games for the day;

(c) on the bus (back to the hotel after the end of the Teambuilding) the plaintiff was normal, fine, chatty and in good spirits.

27.  Siu’s failure to state in his statement of 25 February 2016 that he saw the plaintiff on the ground and believed that she had fallen makes that document an untrue statement because anyone reading it would understand it to mean that, according to Mr Siu, the plaintiff had not fallen.

28.  On 26 April 2017 Siu made his supplemental witness statement[38] seeking to explain away his statement to Tata HK[39]. He explained the inconsistency in his supplemental statement in these terms:[40]

“7. In all the three games, I had to bend my upper body forward and my head down, endeavouring to maintain my balance. As a result, I did not witness Lai Sin Yan’s fall from the human pyramid. Further, the time restraint was great and I did not have time to communicate with my group members. That was why I said in the English statement that “I do not recall her falling or anyone else saying that she had fallen.”

8. After the failure of the first game, I found Lai Sin Yan fallen onto the ground. I helped her up. She did not have any sign of injury or wound bleeding at that time. Neither did she show any expression of pain. Because of the time restraint, I did not properly enquire about her condition. Accordingly, I did not take note that she had been injured. That was why I said in the English statement that “I am sure that she did not exhibit any signs of injury.”

9. After the completion of all the games, the Company arranged buses to take all participating staff back to the hotel. As I was waiting for the bus and after I had boarded the bus, Lai Sin Yan, another female colleague from Hong Kong named Tiffany and I came together to have a chat. It was only at that time that I learned that Lai Sin Yan fell more than once when playing the game “How many feet”. Together with Tiffany, I asked her whether or not she was alright. At that time, she said she suffered from some pain over her waist/lower back. After they day’s games were over, I as a man suffered from pain in the loins and back and exhaustion of the feet. This was even so for a woman. After I heard that Lai Sin Yan suffered from lumbar pain, I felt that it was normal and she may not have problem. That was why I said in the English statement that “She seemed normal to me.”

I am wholly unable to accept these so-called explanations which are illogical and beggar belief.

29.  His so-called explanation in §9 of his supplemental witness statement that he had stated, in his statement of 25 February 2016, that “I do not recall her falling or anyone else saying that she had fallen” because he did not witness her fall, is a non sequitur. In §12 of his witness statement dated 29 March 2016 he said that he found the plaintiff “fallen onto the ground” and that he “helped her up.” This statement made about a month afterwards is wholly inconsistent with his statement of 25 February 2016 that “I do not recall her falling”. Further, the assertion that he did not have time to communicate with his team members that the plaintiff had fallen is wholly unconnected with his statement of 25 February 2016 that “I do not recall… anyone else saying that she had fallen.”

30.  Siu’s assertion in the supplemental statement, that he did not see any sign of injury at the time he found the plaintiff fallen on the ground and when he helped her up, does not provide an explanation of why he said, in his statement of 25 February 2016, that “I am sure that she did not exhibit any signs of injury”, particularly as he had also asserted, in his supplemental witness statement, that because of time restraint, he did not properly inquire about her condition.

31.  Siu’s assertion in the supplemental witness statement, that after the day’s games were over, he, as a man suffered from pain in the loins and back and exhaustion of the feet and that this was so even for a woman; therefore, after he heard that the plaintiff had suffered from lumbar pain, he felt it was normal, and that she might not have a problem, can only be described as nonsensical.

32.  Although his supplemental witness statement dated 26 April 2017 did not allude to this, in his evidence before me Siu stated that he had told Sujoy and Ho during their video teleconference that he had seen the plaintiff on the ground and that Sujoy responded by stating that this was a serious matter and that he could only speak of what he saw. The suggestion that is implicit in this evidence is that Sujoy was deliberately trying to doctor Siu’s statement to hide the fact that the plaintiff had fallen.  I do not believe this evidence. Ho has no recollection of what was said at the video teleconference.  I accept her evidence that, if Siu had made such a statement during the video teleconference, it would have been expressed in the draft statement[41]. A serious accusation has been made against Sujoy that he was trying to doctor the evidence as to create an untruthful statement to bolster the defendant’s case. This evidence, if true, ought to have been set out in the supplemental witness statement that was specifically prepared to deal with the inconsistency between his witness statement and his signed statement of 25 February 2016. It is an afterthought.

33.  Siu has made 2 wholly inconsistent statements within a month or so of each other and yet maintained that both statements were truthful, as demonstrated by the following exchange:[42]

“COURT: I mean that’s what the English language is. It says you did not see her fall. You accept that, do you not?

A. I accept because the sentence structure -- this passage has such sentence structure.

INTERPRETER: As pointed. Witness points to the second paragraph.

Q. So can we go...

A. Can I elaborate?

Q. Of course you can.

A. At the time, when I spoke to Sujoy, Sujoy asked me in particular the whole course. Well, I spoke to Sujoy and then when it comes to this sentence...

INTERPRETER: Witness points to the second sentence in the second paragraph from “I did” to “my back”.

A. ...I communicated with Sujoy, he reduced it to summary, and in particular that sentence, I just mentioned. And then he asked me whether all the contents of this are correct. From what I remember, I did tell him that in fact when I turned around I saw her had fallen down.

COURT: Mr Siu, you do understand you’re on oath to tell the truth. You’re telling me that you [said to] Sujoy that you saw her fall and you signed a statement which says you did not see her fall. How is that possible?

A. This maybe perhaps in my communication with Sujoy, there were some problem with my understanding.

COURT: Mr Siu, if what you are saying to me is correct, you knowingly, wilfully signed a false statement.

MR CHAN: My Lord, to be fair to the witness. The witness had filed a supplemental witness statement explaining...

COURT: I don’t care about -- I’m talking about his evidence. Are you stopping me from asking questions?

MR CHAN: No, my Lord. My Lord, I just -- all I’m saying is that the witness had on a prior occasion he had...

COURT: I’m trying to control my temper at the same time. It’s not every day that -- would you sit down.

MR CHAN: Okay, of course, my Lord.

COURT: What did I ask him and what did he answer?

INTERPRETER: He hasn’t answered, sir. I think your question, sir, is to ask him if from what he said to you in court, he wilfully signed...

COURT: A false statement.

INTERPRETER: ...a false statement.

A. No, that’s not true.

COURT: I’ll take an adjournment for 10 minutes.”

34.  Perhaps those in marketing and sales have a different perception of what constitutes truth.  However, faced with these 2 wholly inconsistent statements, made about 1 month apart, one which must, of necessity, contain false statements which, I find, Siu must have known to be false, notwithstanding his denial before me in court, I conclude that I am unable to place any weight on any evidence that Siu has given before me.

The Plaintiff’s Evidence

35.  I return to the plaintiff’s evidence. Tata HK accepted that the plaintiff had a minor bump or fall at some stage during the Teambuilding on 18 October 2012: the plaintiff did go to hospital that night and did suffer superficial bruising, described by the experts as “superficial (subcutaneous) contusion of the sacro-coccygeal and left buttock region”[43]. However, Tata HK submitted that, it was for the plaintiff to satisfy the court that the “accident” happened in the manner and for the reasons pleaded in her statement of claim and as detailed in her witness statement: if the court concluded that there was some sort of “accident” but was not satisfied that it happened as alleged by the plaintiff, then her claim would fail.

36.  It was common ground that the teambuilding event was a “one off” event that was meant to “be fun” as well as being designed to encourage active participation by all members of the team on how to “solve” the challenge represented by each game. As accepted by the plaintiff, all 9 members of Verma’s Team were mature and responsible individuals. Also, as accepted by the plaintiff, throughout all the games, including Mini-Legs, a Playlor instructor was with her team and actively involved, e.g. by calling out the “number of legs on the ground” etc.

37.  Tata HK submitted that the plaintiff’s evidence could not be accepted as truthful as it was contrary to common sense, contradicted by the objective photographic evidence, and was full of inconsistencies and contradictions.

38.  Tata HK submitted that the plaintiff’s version of events was not only suspect but highly unlikely because:

(i) it would mean that the Playlor instructor, there to supervise, must have ignored:

(a) the potential danger of the 3 tier human pyramid;

(b) the plaintiff’s protestations that it was dangerous;

(c) the plaintiff falling 3 times;

(ii) it would mean that Verma, not only ignored each of the above but insisted that the plaintiff be on the top tier of the human pyramid;

(iii) it would mean that all the other members of the team, all mature and responsible adults, also ignored (a) to (c) above and also failed to intervene on the plaintiff’s behalf.

39.  It was far-fetched, Tata HK submitted, that the plaintiff, who was a woman who could work under pressure, had proven leadership skills, and was well used to dealing with and inter-acting with people in very senior positions[44], would have felt obliged or intimidated to comply with Verma’s insistence that she climb twice to the top tier, being just after her first fall from a 2-tier pyramid, and then just after her second fall from the top of a 3 tier pyramid.

40.  The defendant also made a strong submission that the plaintiff’s version of events defied common sense: there were at least 3 other “solutions” to the “6 feet on the ground challenge” that were obvious and straightforward:

(a) 3 members standing on the feet of 6 members, all of whom would raise 1 foot off the ground for 3 seconds, as shown, for example, in photograph 14 at B/286;

(b) 3 members “piggy backing” on a base of 6 people each of whom would raise 1 leg for 3 seconds; or

(c) 3 members sitting on the joined hands of a base of 6 people who would then raise 1 foot for 3 seconds, as shown, for example, in photograph 12 at B/285 and 285-1.

Tata HK submitted that the 3 tier scenario was not only contrary to common sense but was simply silly. According to the plaintiff, the first attempt failed because “some members at the base did not have sufficient strength and lost their balance”[45]. But if 6 people on the base did not have sufficient strength to hold up the 3 people on the second tier, it was difficult in the extreme to see how anyone could, or would, think that 4 people on the base would be strong enough to support two upper tiers totalling 5 people.

41.  Tata HK also submitted that the photographs taken on 18 October 2012[46], which provided objective evidence of the teambuilding event, were highly indicative that the plaintiff’s version was highly unlikely to be true.

42.  Tata HK submitted, and I accept, that photograph 12[47] clearly showed Verma’s Team with 6 people on the base holding up the remaining 3 team members. The plaintiff had made no mention of the team seeking to solve the challenge using the obvious method shown by photograph 12. In her evidence in chief, the plaintiff had said that photograph 12 depicted that had occurred before the scenes depicted in photograph 11 and 34[48], which evidence, Tata HK submitted, suggested that the scene in photograph 12 depicted an earlier stage of the game where more than 6 feet were on the ground: however, photograph 12 clearly showed no more than 6 feet on the ground.  Tata HK also referred to what the plaintiff had said, under cross-examination, that the method shown on photograph 12 failed and it was after that failure that the human pyramid solution was attempted.  At this point in the cross examination of the plaintiff, I had pointed out that photograph 12 showed only 6 feet on the ground and that everybody appeared stable. However, the plaintiff insisted that the attempt shown in photograph 12 failed and that people fell to the ground[49].

43.  Tata HK submitted, and I accept, that it can be seen from photograph 12 that:

(a) six of the teammates had each placed one foot on the ground:

• Siu (identified by dark blue track pants with white stripes) was at the left bottom corner of the photo. Siu’s left foot was on the ground;

• Mayank Jain (identified by grey and blue T-shirt) was on the right of Siu. Mayank Jain’s right foot was on the ground;

• Ali Ahmed (identified by white T-shirt with dark blue collar) was on the right of Mayank Jain. Ali Ahmed’s left foot was on the ground;

• Rohan Mathur (identified by dark blue track pants with red stripes) was on the right of Ali Ahmed. Rohan Mathur’s right foot was on the ground;

• Terence Teo (his body was not seen in the photo, but he can be identified by black shoe and white sock) was on the right of Rohan Mathur. Terence Teo’s right foot was on the ground;

• Verma (identified by dark blue shorts, white socks, white sneakers with blue patterns) was on the right of Terence Teo.   Verma’s right foot was on the ground;

(b) the other three teammates i.e. Ann Koh, the plaintiff, and Will Ng did not have legs on the ground. In particular:

• Ann Koh (identified by dark blue T-shirt, light blue shorts) was carried by Mayank Jain on the left, and Ali Ahmed on the right;

• The plaintiff’s pink T-shirt can be seen from the top left corner. She was between Mr Verma and Siu, and was supported by Mr Verma on the left and Siu on the right;

• The left leg of Will Ng (identified by black track pants, dark blue Converse sneakers with white shoe sole) can be seen between the legs of Ann Koh. Will Ng was supported by Rohan Mathur on the left, and Terence Teo on the right;

(c) all the teammates stood/sat close to each other and formed a circle. Each teammate stretched out his or her arms to support his or her neighbouring teammates;

(d) the diagram below illustrates the positions of each member of Verma’s Team (names in circles are teammates who had one foot on the ground, names in rectangles are teammates who were carried by others):

44.  The defendant submitted further, and I accept, that photograph 12 showed that:

(a) the team used the method with 6 feet on the ground;

(b) the backside of the three teammates being lifted were at most about 3 feet above the ground;

(c) each of the 3 teammates above ground level was supported by a male teammate on the left and a male teammate on the right. Further, the teammates being lifted were free to hold their neighbouring teammates with their arms, as is illustrated by Ann Koh and, indeed, by the plaintiff;

(d) nobody was standing or climbing on another person’s back. In particular, the plaintiff was not on Siu’s back; and

(e) there was no “human pyramid”.

45.  Whilst accepting that photograph 12 did not in itself prove that this solution was successful (because a single photograph catches a moment in time rather than 3 seconds) Tata HK submitted that, as the court had pointed out, the photograph did, indeed, show only 6 feet on the ground, and that everybody seemed quite stable. Tata HK also submitted that photograph 12 showed a solution to the challenge that was straightforward and clearly more likely to succeed than a 2 tier, let alone a 3 tier, human pyramid.

46.  Tata HK also accepted that that there were earlier attempts that involved a number of people, in one manner or another, on the backs of other team members such as that shown by photograph 34[50]. However, Tata HK submitted that, one only had to compare photograph 12 with photograph 34 to immediately see that this could not be an attempt at “6 feet on the ground”, and that any attempt at a human pyramid was highly unlikely to succeed, hence the change to the method shown in photograph 12.

47.  Tata HK also submitted that the plaintiff had been inconsistent and had had given different and grossly exaggerated versions of how Mini-Legs was played. Those versions of events were inconsistent with her witness statement, could not be reconciled with the photographic evidence, and contradicted her oral evidence:

(a) when the plaintiff was examined by Dr Lam Kwong Chin on 18 June 2013[51], she said she had to “climb to the top of a human pyramid of 5 to 6 tiers, but fell repeatedly to the ground (firm grass pitch) due to collapse of the base”[52] [Emphasis added];

(b) when the plaintiff was examined by Dr Alex Chow on 23 January 2014, she said she “climbed up to a height of more than 10 feet and she fell to the ground”[53] [Emphasis added];

(c) when the plaintiff first consulted Dr Paul Lam on 21 January 2015, she said she “fell from about 15 feet x 3”[54] [Emphasis added];

(d) when the plaintiff was examined by the psychiatric experts on 4 May 2016[55], she claimed that:

“She was to be on top of two layers of people; 8 or 9 at the base and 4 or 5 in the second layer. The people bent forwards and she was asked to stand on their backs.

She had three attempts. At the first time, she slipped and fell after a few seconds on the top. She landed on her backside and had pain in her back and both her wrists. The floor was concrete and was covered with a thin green sheet. A colleague pulled her up. They ignored her pains and she re-attempted two minutes later. She fell again in a similar way. Again she was pulled up. As there was a time-limit for the game, she tried again. This time, she fell before she got to the top. Then, the game was over. She was angry and in severe pain.” [Emphasis added]

(e) when the plaintiff was examined by the orthopaedic experts on 19 May 2016[56], she claimed that:

…“when standing on top of the shoulder of team building member of the 3^rd layer of people, she fell, in prone position, the height of all 3 layers was 10 feet high.” [Emphasis added]

(f) In cross-examination, the plaintiff came up with yet a further variation[57]:

“Q. So if we come to the first attempt with three tiers, can I take the first tier of the people on the ground, the second tier adopted the same piggyback position with their arms around them.

A. Yes.

Q. And can I -- what was the third tier going to do, just try and hold on to the second tier?

A. At the time, we were asked to go up further and to sit on the shoulders of the people on the second tier.

Q. To sit on their shoulders?

A. Yes, because...

Q. But I’m sorry...

A. ...when I was climbing up, they shouted it.

Q. You’ve never mentioned this before.

A. Because right now, going through the proceedings, now I clearly recall what had happened.

Q. I see. So just so I get the picture. There is the bottom layer of people with some people piggybacking on their sort of lower back and back, holding onto them.

A. Right, the first attempt, yes.

Q. And you -- sorry, is it now your evidence that you were then required or ordered by Rajiv to climb up the first person, climb up the second person and sit on the second tier’s shoulders?

A. Well, to sit on or to -- well, in general, to stabilise myself there.

Q. Okay. So the idea was to go up to a third tier and you would stabilise that by sitting on somebody’s shoulders.

A. Right.”

48.  I accept Tata HK’s submissions that I have quoted above. I find that the plaintiff did fall to the ground in the course of Mini-Legs once. I find that Verma did adopt a 2 tier method, with 3 persons perched or piggyback riding on the backs of 3 of the 6 persons forming the base, in a manner similar to that shown in photograph 34[58], which shows Will Ng riding piggyback on Rohan Mathur and Ann Ho perched on the back of Verma.  I find that the plaintiff did climb onto the back of Siu, with her arms around his neck[59] and that she fell off the back of Siu when, as she described in §§22-25 of her witness statement, some of the members forming the base lost their balance. However, I do not accept her evidence that she fell off Siu’s back directly on the ground and landed on her buttocks. I find that she would have landed first on her feet and then fallen on her buttocks.

49.  However, I also find that she grossly exaggerated the manner in which Verma’s Team played the game of Mini-Legs, when she suggested that Verma adopted a 3 tier human pyramid. I disbelieve the plaintiff’s evidence that Verma’s Team adopted a 3 tier human pyramid. If 6 people on the base did not have sufficient strength to hold up the 3 people on the second tier, the plaintiff’s evidence that 4 people on the base would be strong enough to support two upper tiers totalling 5 people is simply unbelievable. I had remarked in the course of her evidence that “[if] 2 tiers does not work, how does 3 tiers work? Is it not more difficult?”[60]. I am unable to accept her counsel’s submission that:

“In the 2-layer scenario, the 6 members at the base would need to support the remaining 3 and raised one of their feet and sustained that posture for 3 seconds. Members with a physique like Ali Ahmed might very likely be the weak link and not be able to do it. In the 3-layer scenario with 4 members at base, only 2 of them need to raise one foot while the remaining 2 could plant both their feet onto the ground. Conceivably, the Team could then select the heaviest and thus weakest 2 members at base who did not need to raise one of their feet. Thus, it is not inherently improbable that RV would have decided to use the 3-layer method after failure of the 2-layer one.”[61]

In making this submission, counsel seems to have omitted to mention that these 4 members on the base, 2 of whom would each be standing on 1 foot, would need to carry, and to balance, 2 tiers of persons on their backs: 3 persons on the second tier and 2 persons on the third tier. How could they possibly do so if 6 persons of the same team on the base were unable to support 3 persons perching or piggyback riding on their backs?

50.  I am able to ignore the statement in §47(a) above that the plaintiff climbed to the top of a human pyramid of 5 to 6 tiers, as possibly being a typographical error. However, I do not accept her counsel’s submission that she was still much affected by her psychiatric illness and that her ability to relate these matters accurately, in all likelihood, was hampered by her condition. I find that she did so in order to give the wrong impression that she fell from a greater height than about 3 feet, which would be about the distance she would have fallen, as I have found above, landing first on her feet and then falling on her buttocks.

51.  Having found that she grossly exaggerated her evidence and having disbelieved her evidence about the 3 tier human pyramid, I am unable to accept her evidence, and I am unable to find, that the plaintiff fell more than once.

Verma’s Evidence

52.  Verma did not come to Hong Kong to give evidence at the trial. His sister-in-law had passed away.  I offered to hear the other witnesses and then to adjourn the trial part heard to enable Tata HK to call him to give evidence at the resumed hearing.  I was informed that Tata HK had made the decision not to call him, and to call Ho as the only witness for the defence. The plaintiff has submitted that I ought to draw an adverse inference against Tata HK from its failure to call Verma or other witnesses to give evidence about the game of Mini-Legs, citing Ip Man Shan Henry v Ching Hing Construction Co Ltd (No 2) [2003] 1 HKC 256 at §155 where Deputy High Court Judge Lam, as he then was, stated:

“In my judgment, the relevant principles applicable to civil proceedings can be summarized as follows,

(a) if a prima facie case is made out, and if there is evidence available to the party against whom the case is established which could displace the prima facie case, and he omits to call such evidence, an inference could be drawn;

(b) however, the inference could be rebutted by a plausible explanation by the party who elected not to call the evidence;

(c) if an inference is to be drawn, it would be an inference that such available evidence, even if adduced, would not displace the prima facie case;

(d) …”

The plaintiff has not established a prima facie case that she fell from a 3 tier pyramid.  I disbelieved her evidence in that regard. I have found that she did fall once when she was perched on Siu’s back. Tata HK has conceded that she did fall once. Given that concession, there is no need to draw any adverse inference against Tata HK.

Was Verma Negligent?

53.  As team leader of Verma’s Team, I find that Verma had a duty to take reasonable care for the safety of his team members.  In my view, it is just, fair, and reasonable to impose a duty of care on Verma in respect of injuries that might be suffered by his team members in the course of the teambuilding exercise, even though some of the team members were not co-employees but employees of other companies in the Tata Group, such as Tata HK, and even where the harm stemmed from the actions of other team members or from the actions of the injured member or members, provided that the scope of the duty was appropriately set.

54.  The mere foreseeability of the risk does not give rise to breach of duty if it is one which could be met by employees taking obvious precautions. Likewise, the mere foreseeability of harm does not does not elevate the standard of care to prevent such harm from occurring.  The standard and level of care that is required depends on the probability of the risk materialising, the gravity of the harm if it did occur, and how easy it was to avoid the risk[62].  A slight risk of harm occurring may be ignored if the harm that was likely to occur was slight and if the taking of precautions was difficult or impractical.

55.  The team building exercise was meant to be a fun event. So it was easy to foresee that some team members might become overly exuberant and frolicsome. In the present case, playing the game Mini-Legs gave rise to a foreseeable risk that team members may adopt unsafe methods to play the game.  For example, the activity depicted in photograph 34 showing the plaintiff being lifted up some 3 or 4 feet above the ground with her legs on top of the shoulders of Siu created the risk that the plaintiff might fall a distance of 3 or 4 feet and land on her buttocks on the astro turf.  I find that the activity depicted in photograph 34 created a risk of this occurring that was not slight, and that the severity of the harm from the plaintiff falling 3 to 4 feet and landing on her buttocks was also not slight. It might have been difficult for Verma to intervene in a timely fashion to prevent its occurrence. However, I have no difficulty concluding that a duty of care arose on the part of Verma, who was the team leader in charge of the plaintiff’s team, to prevent such an activity.

56.  However, I also find that there was no duty to intervene to prevent Ann Koh from riding piggyback on the back of Verma as depicted at the right of photograph 34, nor a duty to intervene to prevent Will Ng from sitting on the back of Rohan Mathur, who bent over to enable Will Ng to do so as depicted at the left of photograph 34.  Although there was a risk of Ann Koh falling, she would have fallen only about 3 feet and landed first on her feet, with or without her buttocks thereafter also landing on the ground, such that the risk of harm to her was nil or negligible.  Likewise, even if there was a risk of Will Ng falling, it was likely that he would have fallen a distance of no more than 3 or 4 feet, landing on his side, or on his hands and/or knees, such that any harm he would suffer would be minor.  Likewise, I find that the activity shown on photograph B/285-1 was not one that gave rise to a duty on the part of Verma to prevent an employee from sitting on the cradle formed by 2 persons linking their arms: even if any of them fell, they would have landed on their feet such that the risk of injury was nil or negligible.

57.  I have found as a fact that the plaintiff only fell once when she was perched on the back of Siu, with her arms around his neck, somewhat similar to the manner that Ann Koh was perched on the back of Verma, as depicted in photograph 34. I find that there was no duty on the part of Verma to intervene and prevent the plaintiff from doing so.  The risk of her falling from Siu’s back was slight and the harm that was likely to occur, if the plaintiff did fall from Siu’s back, was also slight. I find that Verma was not negligent.

58.  Although no specific allegations have been raised against Playlor, I find that Playlor’s instructor assigned to supervise the playing of Mini-Legs by Verma’s Team was also not negligent, for the same reasons that I have found that Verma was not negligent.

59.  Having found that Verma was not negligent, there can be no vicarious liability on the part of Tata HK arising from Verma’s actions or omissions.

Was Tata HK Negligent?

60.  Playlor has not been sued by the plaintiff in respect of this occurrence. Indeed, in the plaintiff’s closing submissions, it was conceded that Playlor was a competent and qualified provider for organising the “GES Teambuilding workshop”[63].

61.  The underlying premise of the plaintiff’s submissions is that a reasonable employer should have excluded the Mini-Legs game altogether from the games to be played that day and that Tata HK was negligent in not doing so[64]. Given the findings of fact I have made above, these submissions are not tenable.

62.  There is no doubt that Tata HK was under a non-delegable duty of care to the plaintiff, its employee. The editors of Clerk & Lindsell on Torts, (22^nd ed.), provide a clear and succinct statement on the relevant principles at §13-11. An employer can delegate the performance of the duty to others, whether employees or independent contractors, but not responsibility for its negligent performance. In Kondis v State Transport Authority[65] the High Court of Australia held an employer in breach of his duty to provide a safe system of work when an independent contractor dropped part of the crane which hit an employee. The contractor’s failure to adopt a safe system of work was held to constitute a failure by the employer to satisfy the non-delegable duty to provide a safe system of work. In McDermid v Nash Dredging & Reclamation Co Ltd[66] the House of Lords held the employer liable for an injury to an employee which occurred at the worksite of a Dutch company where he had been instructed to work. The injury was caused by the failure of the Dutch company to have a safe system of work. The English employer was held to have delegated performance of his duty to the Dutch company and was responsible for its failure. As I have found that Playlor was not negligent, these principles cannot be invoked in order to assert that Tata HK was in breach of its non-delegable duty of care to the plaintiff.

63.  A distinction is to be made between the delegation of part or whole of the employer’s process of work to an independent contractor and providing a service to an employee via a third party.  In A (A Child) v Ministry of Defence [2003] P.I.Q.R. P33 Bell J reviewed the cases of Kondis and McDermid and other authorities and concluded that the defendant’s duty to its service personnel in relation to medical care was satisfied by providing access to an appropriate healthcare provider. It was not responsible for the negligence of that provider.  He described the employer’s duty as “at the most to provide a safe system of working or to take reasonable care to see that one is provided (a negligence duty)”.  The Court of Appeal [2005] QB 183 affirmed his analysis and decision.  In this case, I find that Tata HK’s duty was to provide a safe system of participating in the teambuilding exercise and Tata HK discharged this duty by reasonably relying on Tata Singapore to provide competent and experienced instructors to conduct the teambuilding exercise and to take care of the safety of Tata HK’s employees during the teambuilding exercise. As I have found above, Tata Singapore did, indeed, do so by engaging Playlor. Further, as stated above, the plaintiff has conceded that Playlor was a competent and qualified provider for organising the teambuilding exercise.

Plaintiff’s Claims Dismissed

64.  For these reasons, I dismiss the plaintiff’s claims against Tata HK.

65.  To cover the possibility that I may be overturned on appeal, I shall address the quantum of the plaintiff’s claims.

Quantum

66.  The parties are far apart on quantum. The plaintiff claims damages for PSLA for physical and psychiatric injury:

(i) one or more of the 3 falls she alleged that she suffered while playing Mini-Legs made symptomatic a previously asymptomatic pre-existing degenerative back condition with the result that (some 6½ years after the event) her present complaints included:

(a) dull aching pain over the thoracic and lumber spine area with pain radiating to the left buttock and left lower limb with numbness over the whole left lower limb. Both her lower limbs are weak. She is only able to walk slowly for about one hour at a time. She has to use a hiking stick for walking and cannot stand up for long as pain would set in[67];

(b) she loses balance easily and often twists her ankles and fore-feet and is susceptible to falling[68];

(c) her ability to sleep well has been adversely affected[69];

(ii) in January 2015, the plaintiff developed depression and suffers from Major Depressive Disorder (“MDD”) and Post Traumatic Stress Disorder (“PTSD”).[70]

The plaintiff has not worked since 18 October 2012 and she claims damages for pre-trial, post-trial loss of earnings and loss of earning capacity. She also claims special damages and damages for future medical expenses.

67.  Tata HK’s case is that she suffered no more than a subcutaneous contusion of the sacro-coccygeal and left buttock region and that she has grossly exaggerated her symptoms and is a malingerer[71].  She has also grossly exaggerated her mental condition[72] and, at most, she suffers from very mild anxiety[73] for which the proper diagnosis was Adjustment Disorder with Depressed Mood[74].

68.  The difference between the parties is made stark in the summary of the parties’ respective cases on quantum that is set out in the table below:

Head of Claim	Plaintiff’s Case HK$	Tata HK’s Case HK$
PSLA	500,000	150,000
Pre-trial loss of earnings	3,612,603	42,791 or 342,324
Post-trial loss of earnings	3,157,213	Nil
Loss of earning capacity	309,750	Nil
Special damages	428,153	50,000
Future medical expenses	105,000	Nil
Total :	8,112,719	242,791 or 542,324
Less advance payment	1,343,808	1,343,808
Damages claimed and interest:	6,768,911	Nil

Injuries and Treatment

69.  The plaintiff was seen at the Emergency Department of Raffles Hospital on the evening of 18 October 2012. An MRI scan showed “changes of lumbar spondylosis, most marked at the L5/S1 level where a left posterolateral broad based protrusion possibly impinged on the left S1 nerve root”[75]. The attending doctor recorded that the plaintiff had presented with low back pain and “tenderness over the lower lumbar region of her spine”[76].  She was alert and her vital signs were normal. There was no open wound. She was given intravenous and intra-muscular analgesics during her visit and discharged with oral analgesics.

70.  The plaintiff returned to Hong Kong on 19 October 2012. On the next day she sought treatment at the Hong Kong Sanatorium and Hospital family medicine centre in Taikoo.

71.  On 6 November 2012, the plaintiff had another set of MRI scans for her lumbar spine and pelvis. The MRI reports[77] stated that there was no occult fracture or contusion, “edema/ecchymosis in the posterior subcutaneous soft tissue likely direct impact injury”, and “superficial ecchymosis/edema in the subcutaneous fat over the left buttock region but no intramuscular hematoma”.

72.  A summary of the consultations she had and the treatments she received from 18 October 2012 to 23 February 2016 is set out in the joint orthopaedic report[78]. She was granted sick leave from 18 October 2012 to 18 April 2016.

73.  Ms Terry Mo, physiotherapist at the Hong Kong Sanatorium & Hospital recorded that the plaintiff walked with a rollator or a walking stick at home, and travelled outdoor with wheelchair and by rehabilitation bus service[79]. I note that the plaintiff had consulted an orthopaedic specialist, Dr Eric Chien, for a considerable period of time. In his report dated 17 January 2014, he stated that, on 2 November 2012, she attended his clinic in a wheelchair. She showed slow but gradual improvement with regular walking exercise with the use of walking sticks.  On her follow up on 9 January 2014, she came in sitting on a wheelchair and was able to walk independently to the couch with a walking stick[80]. In his report dated 24 January 2014, Dr Alex Chow of Hong Kong Sanatorium & Hospital Rehabilitation Centre noted that the plaintiff walked with a stick with a limping gait when he examined her then[81].  Ms Terry Mo noted that on 12 August 2014 that the plaintiff was able to walk better with a stick but that she still used a wheelchair for outdoors and that on 23 April 2015 she could walk with a stick outdoors, go out by taxi and no longer required a rehabilitation bus escort[82]. The evolution of the plaintiff’s symptoms and signs from 2012 to 2016 have been noted in the joint orthopaedic report[83].

74.  In his report dated 17 January 2014, Dr Eric Chien stated that he had advised the plaintiff to seek a second opinion from a clinical psychologist.[84] In his report dated 24 January 2014, Dr Alex Chow stated that he also advised her that she would benefit from an assessment by a clinical psychologist.[85] She was seen and treated by Dr Paul Lam Tat Chung, a psychiatrist, in 2015[86], and later by Dr Kathy Chan Po Man, who was also a psychiatrist, from October 2015 to January 2016[87]. She also obtained treatment from the public psychiatric service at Pamela Youde Nethersole Eastern Hospital Department of Psychiatry from February 2016[88].

The Orthopaedic Expert Evidence

75.  Dr Fu Wai Kee was the plaintiff’s orthopaedic expert and Dr Chun Siu Yeung was the orthopaedic expert appointed by Tata HK.  Their joint orthopaedic report dated 13 July 2016[89] was received into evidence without the need for the 2 doctors to give oral evidence.  At the pre-trial review on 7 December 2018, I had asked whether they should be called to be cross examined, given the difference of opinion between them. The plaintiff’s counsel submitted that that their joint report could be adduced without calling them and I did not insist that they should be called.

76.  During their joint orthopaedic examination that took place on 19 May 2016[90], the plaintiff complained of poor sleep because of pain; left and right side back pain from the buttocks to the scapular region; sudden weakness of the lower limbs with frequent falls; headaches; and weakness of and pain in left knee[91]. At their joint examination, the plaintiff walked in with a left-handed stick in normal gait[92]. The experts found no deformity or swelling at the back[93], no muscle wasting of the leg[94], no soft tissue swelling at lumbar spine[95]. The plaintiff demonstrated 3 out of 4 positive results in the Waddell’s simulation test[96].

77.  It was common ground that the plaintiff’s injury should be the result of a fall. Dr Chun opined that the injury should be a superficial (subcutaneous) contusion of the sacro-coccygeal & left buttock region; and Dr Fu opined that the clinical picture of the plaintiff was compatible with the diagnosis of soft tissue injury of back[97]. They were agreed that the mild scoliosis and the degenerative changes at L5-S1 level shown on MRI was pre-existing and could not be caused by a single trauma[98].

78.  Dr Chun also identified various subjective complaints that could not be explained other than by symptom exaggeration, expansion and magnification[99]:

(a) sudden lower limb and knee weakness;

(b) whole back pain of continuous nonstop nature on left side of severe to extreme severe intensity;

(c) headache;

(d) failure during the physical examination to perform tasks which could be easily carried out in the absence of serious neurological deficit or local pathology of the lower limb;

(e) requiring a stick in the absence of serious neurological deficit or pathology of the lower limb and on the left hand which was inappropriate;

(f) diffused tenderness; and

(g) symmetrical limb girth measurement was inconsistent with suggested weakness of left lower limb, worse than right, and left knee pain.

77.   Dr Fu opined that “[for] this kind of soft tissue injury, it is not uncommon for patients to have mild pain initially that gradually increase in the next few weeks. For this kind of soft tissue injury, the MRI may not detect any obvious abnormality but the patients can have serious symptoms.”[100]  Dr Fu also opined that the accident could have turned the asymptomatic degeneration at the spine into symptomatic one[101]. However, Tata HK submitted that the degenerative changes took place at the facet joint at L5/S1[102].  Dr Fu described the degenerative changes as “mild”[103]. In fact, in the MRI taken by Raffles Hospital on 18 October 2012, it was recorded that “the facet joints … are unremarkable”[104]. The MRI report on the pelvis dated 6 November 2012 only revealed superficial ecchymosis/edema in the subcutaneous fat over the left buttock region but not at L5/S1[105].  The left buttock and the facet joint at L5/S1 are in different locations. Tata HK submitted that it was difficult to understand how pain at left buttock could make asymptomatic degenerative changes become symptomatic at facet joint at L5/S1 in the absence of some explanation from an expert.

79.  Dr Fu agreed that some of the plaintiff’s features might not be completely explained on clinical grounds[106]. Dr Fu did not rebut Dr Chun’s observations[107] that the plaintiff had exaggerated her symptoms. Dr Fu explanation was that the plaintiff was diagnosed by psychiatrists to have depressive disorder, that it was well known that patients with depressive disorders would have abnormal response to pain, and that the plaintiff’s clinical symptoms should be partly caused by her depressive disorder[108]. However, Tata HK submitted that:

(a) Dr Fu’s opinion on perception of pain on psychiatric ground was inadmissible;

(b) an explanation of abnormal response to pain was premised on the assumption that there was at least some pain. Yet, Dr. Fu offered no explanation as to why the pain would have persisted. In particular, Dr. Fu’s opinion that the plaintiff would have “on and off attacks of severe pain”[109] was not based on any explained medical opinion;

(c) Dr Fu did not explain why the plaintiff would require a wheelchair or a walking stick for a soft tissue low back injury. There was plainly no need to use these items. Dr Fu also did not offer any explanation to Dr Chun’s comments that “[a] stick in the same hand as the side of disability is inappropriate”[110];

(d) in all, Dr Fu’s opinion appeared to be made on the presumption that the plaintiff’s symptoms were genuine, yet Dr Fu was unable to explain, on orthopaedics grounds, why the alleged symptoms might be genuine; and

(e) thus, so far as Dr Chun’s opinion differed from Dr Fu’s opinion, Tata HK submitted that Dr Chun’s opinion was to be preferred.

80.  Dr Chun was of the opinion that the plaintiff was able to return to work[111].  Dr Fu did not suggest that she could not return to clerical work but cautioned that she should return to clerical duties that did not need frequent walking[112].  According to Dr Chun, reasonable sick leave for subcutaneous contusion should be 4 weeks[113].  Dr Fu, however, endorsed the sick leave issued by the plaintiff’s treating doctors. The plaintiff submitted that Dr Chien and Dr Chow were eminent practitioners and that Dr Fu’s opinion endorsing the treating doctors’ sick leave should be preferred.

The Psychiatric Evidence

81.  The plaintiff was examined by the psychiatric experts, Dr Wong Yee Him for the plaintiff and Dr Yu Wai Tak for the defendant on 4 May 2016[114]. The opinions of the psychiatric experts are summarised as follows:

	Dr. Wong	Dr. Yu
Diagnosis	Major depressive disorder (“MDD”) and posttraumatic stress disorder (“PTSD”) [D/425 §58]	Adjustment disorder with depressed mood [D/421 §51]
Current symptoms	Dr Wong did not think the plaintiff gave unreliable history or was exaggerating her mental symptoms [D/435 §75]	The plaintiff has provided exaggerated descriptions of mental symptoms with the intent to build up a case of severe mental distress. She is likely having very mild anxiety due to overstating symptoms [D/423 § 56h].
Relationship of Mental Symptoms and Alleged Accident / Causation	All of the mental symptoms are attributable to the accident [D/437 §87].	The development of mental symptoms subsequent to the accident was attributable to the accident. The persistence of mental symptoms without significant improvement despite treatments is attributable to frustrations associated with overstating symptoms [D/436 §§78-79]
Treatment required	The plaintiff would benefit from more treatment by both a psychiatrist and a clinical psychologist from the private sector. She should have monthly psychiatric follow-ups for 12 months and them every 2 months for at least another 36 months (in view of the need to prevent future relapses). She should also see a clinical psychologist for 20 sessions to receive cognitive behavioural therapy [D/439 § 95].	The plaintiff’s symptoms are very mild and medications are not needed.  The plaintiff will not benefit from any psychological or psychiatric treatments and should stop attending the psychiatric clinic [D/438 §§89-90]
Return to work	The plaintiff needed to achieve a full remission from her major depressive disorder and post-traumatic stress disorder before she could return to her old job [D/440, 441 §103]	The plaintiff could return to pre-accident duties [D/440 §102]
Sick leave	Sick leave granted plus 6 months of sick leave from the date of report [D/441 §106]	None [D/441 §104]

82.  The differences between the psychiatric experts were due to the different diagnosis made.  Dr Wong concluded that the plaintiff’s condition was much more serious and that she suffered from MDD and PTSD[115].  Dr Yu concluded[116] that the plaintiff had developed mental symptoms, the “predominant ones of which were a cluster typical of Adjustment Disorder with Depressed Mood”. Both Drs Wong and Yu recognised and, indeed, emphasised that, in the field of psychiatry, the patient’s complaints and symptoms were necessarily subjective, so that the patient’s credibility was of the utmost importance, and that consistency was the core of reliability[117]. Both Drs Wong and Yu agreed that the development of mental symptoms subsequent to the accident is attributable to the accident[118].

Dr Wong

83.  Dr Wong was of the opinion that, presuming the plaintiff had given a reliable account and there was no symptom exaggeration, she was suffering concurrently from MDD and PTSD[119]. He explained why she satisfied the criteria for both these conditions[120].

84.  The plaintiff was suffering from Major Depressive Disorder, single episode, severe with psychotic features before she had psychiatric treatment, and, currently, she was suffering from Major Depressive Disorder, single episode, moderate[121].

85.  Dr Wong did not think the plaintiff gave unreliable history or was exaggerating her mental symptoms[122].

86.  In particular, it was his opinion that “…[the] persistent pain then acted to perpetuate the depressive features. As her mood increasingly sank, the resultant low mood (with the consequent negative thinking) amplified and exacerbated the existing painful perception … Thus a vicious cycle is set-up.” [123]

87.  It was also his opinion that “…this close association between the pain she is suffering from and her depressive symptoms is a distinctive feature of her morbidity since 2012/2013. This vicious cycle is one of the reasons for her difficulty in attaining remission in both her pain and her depressive mood.”[124]

88.  The plaintiff satisfied Criterion A for PTSD in that she was exposed to a traumatic event: she was made to go the top of the human pyramid 3 times, fell 3 times from 1.5 metres to 3 metres hurting her back and buttocks each time, and she was in intense fear and helplessness[125].

Dr Yu

89.  Dr Yu, both in the joint psychiatric report and as amplified in his oral testimony, concluded that the plaintiff “has provided exaggerated descriptions of mental symptoms with the intent to build up a case of severe mental distress. She is likely having very mild anxiety due to overstating symptoms”[126].  He also concluded that:

(a) the severity of the plaintiff’s symptoms did not justify other diagnosis which includes MDD[127]; and

(b) as the nature of the “accident” did not meet the criteria for PTSD as set out in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), so the reported PTSD symptoms were not credible[128].

90.  In the joint psychiatric report, Dr Yu identified those areas where he concluded that the plaintiff was exaggerating and gave the reasons for so concluding which included:

(a) the consideration of the joint orthopaedics report[129];

(b) that the plaintiff walked with a cane in her left hand[130];

(c) that the plaintiff’s symptoms were in excess of what would be expected from exposure to the accident[131];

(d) that use of a wheel chair was overacting[132];

(e) as the physical symptoms were exaggerated, the mental symptoms were similarly exaggerated[133];

(f) concerns of the veracity of her claimed suicidal ideas[134];

(g) concerns that the complaints of delusions and hallucinations were not credible[135]; and

(h) the inconsistency as to when the plaintiff’s boyfriend left her[136].

91.  When cross-examined, Dr Yu explained further that:

(a) “[b]ilateral straight leg raising 70/70 …”[137] was clearly an exaggerated response as it meant, if true, that the plaintiff would not be able to sit normally[138];

(b) the symmetry of her leg muscles was inconsistent with her complaints of problems with her left leg which, if true to the extent claimed by the plaintiff, would result in muscle wasting in that leg, i.e. an asymmetrical wasting[139]; and

(c) Dr Paul Lam Tat Chung, a very experienced psychiatrist, despite recording the plaintiff’s severe symptoms[140], did not make the diagnosis of MDD[141].

Plaintiff’s Submissions on the Psychiatric Evidence[142]

92.  The plaintiff invited the court to prefer the opinions of Dr Wong over those of Dr Yu where they conflicted, for the following reasons:

(a) Dr Yu clearly saw his primary task was to determine whether the plaintiff’s narrations of symptoms were genuine: this was incorrect as that task fell to the court;

(b) In assuming the above task, which was not his, Dr Yu engaged his own chain of thought and standards – starting off with the orthopaedic doctors’ opinion that there should not be any/much pain, then being very sceptical of everything the plaintiff said, and then requiring her to prove the same to his satisfaction;

(c) Dr Yu drew from his other experience, whether direct or by hearsay, of patients who were untruthful and assumed that the plaintiff was the same;

(d) Dr Wong, on the other hand, approached the plaintiff’s narrations, complaints, and symptoms in a neutral, fair manner and much more scholarly manner, not assuming anything in favour of the plaintiff, but cross checking them for internal inconsistencies, inconsistencies with accounts given to others at different times, before coming reasoned opinion and conclusion.

93.  When coming to the opinion that Criterion A for PTSD was satisfied, Dr Wong had the account given by the plaintiff[143] but did not have the benefit of the photographs showing the setting and the games being played. When shown the photographs, Dr Wong did hesitate as to whether the plaintiff’s falls satisfied Criterion A although, with reflection, he maintained that the criterion was still satisfied because the plaintiff had fallen 3 times. Dr Wong was a fair minded expert, and his credibility and reliability as an expert was not affected.

94.  If the court was minded not to accept his diagnosis of PTSD, then the court should find that she did suffer some symptoms of PTSD, namely, intrusively re-experiencing the event, experiencing “avoidance” and “numbing”, insomnia, impaired concentration, feeling anxious with hand tremors, profuse sweating and palpitations and which impaired her social and occupational functioning.

95.  The plaintiff was not malingering. Dr Yu did not seriously dispute Dr Wong’s opinion that, in the plaintiff’s case, “the resultant low mood (with consequent negative thinking) amplified and exacerbated the existing painful perception. The pain is thus perceived as more intense. Such intensified pain could further worsen the depressive mood. The worsened depressed mood then might lead to more exaggeration of the painful perception. Thus a vicious cycle is set-up”[144].

96.  Dr Wong diagnosed the plaintiff as suffering from MDD, single episode, severe with psychotic features, which, after treatment had been remitted to MDD, single episode, moderate, and he did not think that the plaintiff suffered from Adjustment Disorder, as Dr Yu opined.

97.  Dr Wong’s approach and reasoning was more considered and holistic. As he had said in evidence, he carefully studied the reports and took into account the diagnoses of all treating psychiatric doctors. Dr Yu reasoned that Dr Paul Lam had not diagnosed her as suffering from MDD. However, in the report Dr Yu did not dispute Dr Wong’s opinion that “[the] multiple medications prescribed by all her psychiatrists are appropriate for an episode of Depressive disorder of moderate to severe intensity but is too large a dose for Adjustment disorder”[145]. In cross examination, Dr Yu tacitly agreed with Dr Wong’s such opinion but quickly related an incident that he heard about in which the claimant had in fact not taken the prescribed drug. When pressed, he agreed that, in the present case, there was nothing to indicate that the plaintiff had not taken those medications.

98.  All treating psychiatrists – Dr Paul Lam, Dr Kathy Chan[146] and the Department of Psychiatry of Pamela Youde Nethersole Eastern Hospital[147] had diagnosed the plaintiff as suffering from MDD and had been treating the plaintiff thus since early 2015. Dr Wong’s diagnosis of MDD, as supported by and consistent with the diagnoses all treating psychiatrists, ought to be accepted. The plaintiff also relied on the documented plaintiff’s significant weight loss, sense of anxiety, and negative side effects from drugs as objective evidence that supported Dr Wong’s opinion and proved that she was not a malingerer[148].

Tata HK’s Submissions on the Psychiatric Evidence[149]

99.  Tata HK invited the court to prefer the evidence of Dr Yu. Although it was not suggested that Dr Wong was untruthful or deliberately unhelpful, his approach was more of a treating psychiatrist than an objective and analytical expert. During cross-examination, when asked about the importance of reliability of the patient’s complaints, Dr Wong agreed but said:

“A. Yes. But I would primarily look at the psychiatric symptoms.

Q. Sorry, you?

A. Primarily -- mainly referring to the psychiatric symptoms and the manifestation of symptoms of the plaintiff to those doctors.

Q. Why?

A. Well, that’s the essence of my process of doing a diagnosis.”[150]

and slightly later in the cross-examination:

“COURT: ...but why didn’t you address the inconsistency in 75(b)? That’s the question.

A. Maybe I focused on the inconsistency in the psychiatric symptoms. You see, I always have the assumption that to the issue of reliability and credibility is the role of your Lordship and it’s not really my job to be a sort of, you know, “a detective” and look for evidence of lying in other aspects of the evidence.

COURT: But as an expert giving objective evidence to assist the court...

A. Sure.

COURT: ...don’t you have to adopt a forensic approach?

A. I do, I do, definitely.

COURT: Doesn’t that include trying to test to see whether in fact the criterions are actually made out.

A. Yes, yes, you are right.”[151]

100.  When cross-examined about the first criteria for PTSD (i.e. “exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity”[152]), Dr Wong, under cross-examination:

(a) first stated that the test was entirely subjective:

“… what is considered a trauma is entirely up to that individual. For instance, fear is a very personal thing.”[153]

and

“Individual. It’s highly individualised. What is perceived as a traumatic is highly individualised would be my testimony”[154];

(b) however, when taken through the examples of traumatic events and re-reading Criterion 1 set out in the DSM[155], Dr Wong changed his mind:

“Q. … it isn’t simply an extreme traumatic stressor that will satisfy the test, is it?  It’s got to be an “extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury” and I, with the greatest respect, that is an entirely objective approach.

A. Yes, objective.

Q. Thank you.

A. But may I add that this is the DSM-IV wording of the criteria A. I think in DSM-V, they have slightly different wording, but I’m unable to quote it off (the top of?) my head how it -- so...

Q. I’m sure...

A. ...the point I want to make is as a clinician we don’t just follow these words, you know, word for word. You see, what I’m trying to do as a clinician is just establish the plaintiff had a substantial traumatic event and whether she interprets that as traumatic is entirely her individual response - individualised response.

Q. Well, I’m afraid that’s where you and I, and I, with respect, you and the editors of this book, would be in disagreement. It has nothing to do with the plaintiff’s perception. It is an objective test is whether there was “an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury” and that is an objective approach, which I think you’ve just accepted.

A. Yes, yes, true, yes.”[156]

101.  However, having accepted that Criterion 1 for PTSD was objective, it was apparent later on in the cross-examination that Dr Wong’s diagnosis of PTSD was made on the basis of his understanding, not of the event itself but rather his understanding of the plaintiff’s subjective perception of the event.   Thus:

“COURT: 296-1. And this one shows a photograph of -- this one, the plaintiff. This photograph shows her, she’s actually I think somehow being carried. She’s the one in the pink T-shirt.

A. Sure.

COURT: Now, suppose she was dropped at this point in time.

A. Yes.

COURT: And she fell two-and-a-half, three feet maybe, maybe less, to the astro turf below and she felt pain in her back. Would this qualify as criterion 1 type of event?

A. Your Lordship, depends on how she would be thrown and...

COURT: No, no, she -- well, talking about slipped.

A. Yes. I mean if she just...

COURT: I mean nobody’s throwing her.

A. Yes.

COURT: They’re having this game. Nobody is being hostile. She’s not having a gun pointed.

A. Sure, sure.

COURT: They’re having this game and it’s a bit of a silly game and somehow somebody fails to hold her properly and she falls. Would this be a criterion 1 event?

A. If she just had fallen once, it may not be much a trauma.

COURT: May not.

A. I mean if it’s only once.

COURT: Would not be. Let’s be a little bit more firm here.

A. Yes, unlikely to be perhaps.

COURT: Unlikely to be.

A. Yes, because only once.

COURT: If she fell only once it’s unlikely to be. Yes, carry on, Mr Bleach.

Q. Let’s stay on 296-1. Could you tell me what it is about this that you suggest involves actual threatened death or serious injury? You would object to this?

A. Yes, but look, just from looking at that picture, because when I answered his Lordship’s question he was asking me to just look at that picture and that if that lady was dropped from that particular shot and would that be a traumatic event. I don’t think that -- may not be very likely if she has just fallen once. That’s what I meant. But I mean from that picture alone, I mean it’s not video footage, I wouldn’t be able to see how she was being subjected -- what she was subjected to. Maybe she was thrown up into the air, maybe she was tossed around.

COURT: No she was not.

Q. No, no.

COURT: I’m telling you she’s not thrown up in the air, there’s no hostility, they’re playing a silly game. There’s a person on top of another’s one back to her left. There’s another lady piggybacking the other chap and it’s a silly game and then she’s in this position and she falls. That’s not a traumatic event.

A. No. If it’s...

COURT: They’re all laughing and giggling. See the lady laughing and giggling.

Q. Do you agree with -- sorry, you agree with his Lordship?

A. Yes, yes.

Q. I mean, instead of saying, ‘Well, I don’t know whether she was thrown or anything else’, the question I’m asking, looking at this photo can I take it you would either find it very difficult indeed or perhaps impossible to say objectively that anybody seeing that would regard it as an extreme trauma because it involves a direct personal experience of an event that involves actual or threatened death or serious injury?

A. Sure, just looking at that picture I don’t think it’s likely to be a traumatic event, just looking at that picture.”[157]

Yet despite the above, in re-examination, Dr Wong maintained his diagnosis of PTSD. Thus:

“Q. … With the inconsistencies pointed out to you today, would you change your diagnosis and your opinion as stated in this report?

MR BLEACH: He’s already said no.

MR CHAN: Already said no, okay, very well.

COURT: Yes, yes.

COURT: That’s correct, right. Because there are two things here. Firstly, there is the issue of PTSD.

A. Yes.

COURT: And we spent a lot of time on the type of accident. There are a lot of inconsistencies that we have seen. And then some of the inconsistencies -- well, I mean, you’ve also said that if it was a short distance fall, it would not be a major event. Having regard to all the matters that we canvassed or Mr Bleach canvassed in some of the questions asked, are you maintaining your diagnosis of PTSD?

A. Your Lordship, I, at the current juncture, I still maintain my diagnosis. But having known what Mr Bleach mentioned, all the...

COURT: Inconsistencies.

A. ...inconsistencies he mentioned, if I have the opportunity I would go back and talk to the plaintiff and see how views and perception of these issues are. For instance, the mentioning the fall from height she talked about, I would like to have the chance to clarify that with her. But...

COURT: Obviously, you don’t have that chance, yes.

A. No, not today.

Q. So without that chance…

A. No.

Q. ... just with that rider, with that proviso have in mind, without the benefit of that, would you still maintain your diagnosis of PTSD?

A. Yes, I will maintain the diagnosis. I don’t think I should change.”[158]

102.  Tata HK submitted, with all due respect to Dr Wong, and quite apart from his complete failure to consider the inconsistencies of the plaintiff pointed out in §47 above, his diagnosis of PTSD was not simply an erroneous opinion, it was in fact untenable and demonstrated a fundamental misunderstanding of what PTSD actually was.

103.  For PTSD to be diagnosed all the criteria must be satisfied. Criterion 1[159] is:-

“exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity”.

This was clearly an objective and not a subjective test.

104.  The examples given[160] included military combat, and violent personal assault (sexual assault, physical attack, robbery, mugging, torture, natural or manmade disasters, severe automobile accidents).

105.  Dr Wong accepted in cross-examination that “other threat to one’s physical integrity” did not refer to death or serious injury (otherwise the words would be superfluous) and agreed that they covered other examples such as being taken hostage, incarceration in a concentration camp etc.[161]

106.  Tata HK submitted that on no responsible basis could it seriously be suggested that the game of Mini-Legs or the plaintiff’s involvement in that game met Criterion 1 for PTSD. Dr Wong, as was clear from the cross-examination, applied the wrong test, he applied a subjective test and not the required objective test.

107.  In respect of the diagnosis of PTSD, Tata HK submitted that Dr Wong’s opinion should be rejected.

108.  It was further submitted that it is clear that the symptoms claimed by the plaintiff were in grossly in excess of what would be expected from exposure of the accident and its aftermath; and that the present case was a classic example of Adjustment Disorder with Depressed Mood which was Dr Yu’s diagnosis[162].

109.  In the joint psychiatric report, Dr Wong was at pains to stress:

(a) “As most of the physical and mental symptoms in this case are subjective, the credibility of Madam Lai’s account is of the utmost importance.”[163];

(b) “Consistency is the core of reliability”[164].

Yet it appeared that Dr Wong’s starting point was not to test the reliability of what the plaintiff was saying, but rather to presume it was correct. Thus:

“Presuming that she gave a reliable account and there was no symptom exaggeration, the clinical picture of Madam LAI indicates that she has developed 2 groups of psychiatric symptoms … she is suffering concomitantly from both Major Depressive Disorder and Posttraumatic Stress Disorder.”[165]

Further, in the joint psychiatric report, Dr Wong did not comment or refer to or consider any of the mass of inconsistencies and exaggerations which could not be disputed. Thus, he appeared to have completely ignored:

(a) the contradictory versions given by the plaintiff to various doctors. Indeed, in cross-examination, when dealing with the version given by the plaintiff to Dr Lam[166] (i.e. falling from the top of a human pyramid of 5 to 6 tiers), he simply avoided the obvious point of the plaintiff’s clear exaggeration by saying:-

“… it is not practical to have five to six tiers … it doesn’t sound sensible. Whereas having a human pyramid of one or two layers, that’s possible, isn’t it? … I mean they are not in circus.”[167]

(b) each area of exaggeration or inconsistency or concern identified in the joint orthopaedic report set out in §47 above.

110.  The complete failure by Dr Wong to consider the matters set out in §109 above also undermined Dr Wong’s diagnosis of PTSD, even in the absence of his failure to recognize that Criterion 1 was objective and not subjective. The failure was also fatal to his diagnosis of MDD, as Dr Wong (correctly) accepted that “the credibility of Miss Lai’s account is of utmost importance” and “consistency is the core of liability”[168] applied equally to the diagnosis of MDD. Indeed, in re-examination, or rather questions asked by the court, it was apparent, in the light of all the inconsistencies and exaggeration that had been put to him during cross-examination, that in respect of MDD, Dr Wong had real concerns about his diagnosis. Thus:

“A. Your Lordship, I, at the current juncture, I still maintain my diagnosis. But having known what Mr Bleach mentioned, all the...

COURT: Inconsistencies.

A. ...inconsistencies he mentioned, if I have the opportunity I would go back and talk to the plaintiff and see how views and perception of these issues are. For instance, the mentioning the fall from height she talked about, I would like to have the chance to clarify that with her. But...

COURT: Obviously, you don’t have that chance, yes

A. No, not today.

Q. So without that chance...

A. No.

Q. ...just with that rider, with that proviso have in mind, without the benefit of that, would you still maintain your diagnosis of PTSD?

A. Yes, I will maintain the diagnosis. I don’t think I should change.

Q. Yes.

COURT: Now, what about MDD, major depressive disorder?

A. Yes, that would be -- actually, that would be the more -- most significant...

COURT: We had this exchange about, you said chronic pain is one of the main reasons why people get MDD. But in this case the orthopaedic surgeons are saying there’s no objective reason for her to have chronic pain.

A. The fact that the...

COURT: Does that impact on your...

A. Sir, the fact that the complaint of pain lingers on in this patient has to be related to major MDD, the major depressive disorder. Without which would be hard to...

COURT: Well, the defence case is very simple...

A. Yes.

COURT: ...she’s exaggerating. She’s holding the stick in the wrong hand. She’s malingering.

A. That’s -- sure.

COURT: I mean, it’s a real possibility, is it not?

A. It’s a possibility of course, as I said, but we need to look into that before...

COURT: But you still maintain your opinion that she has MDD.

A. Yes, because the fact -- the reason is...

COURT: Any riders to your opinion, to you maintaining that opinion that she has MDD?

A. Any?

COURT: Would you add any riders as a result of...

A. The rider -- sure, as...

COURT: ...what we discussed?

A. I would need to see the patient again and ask her about these contradictions and inconsistencies so as to ascertain that this is not manifestation of the amplification of the negative experiences, which is an integral part of depression. That’s what I would do.”[169]

Discussion and Findings

111.  As I have stated above, during the course of the plaintiff’s evidence, I formed the impression that the plaintiff was intelligent and articulate.  She was able to smile appropriately and did not look to me to be depressed when she agreed that the Teambuilding was meant to be fun[170]. She also smiled when she denied the suggestion made to her that she was guilty of game playing[171]. The suggestion was rightly put. I find that she was, indeed, game playing. I have already found that she grossly exaggerated the manner in which Verma’s Team played the game of Mini-Legs, when she suggested that Verma adopted a 3 tier human pyramid. I have also found that she grossly exaggerated the manner in which she fell, when she recounted the accident to the many doctors who had examined and treated her, and that she did so in order to give the wrong impression that she fell from a greater height than 3 feet. She also gave untruthful evidence when she adopted her witness statement as her evidence in chief in which she had stated that “[in] view of Dr Chow’s proposal, I had tried to contact Ho Sau Lan and see if I could be arranged to resume my original duties pursuant to Dr Chow’s recommendation. However, I did not receive any response nor was any arrangement made.”[172]  Dr Chow’s recommendation, made in October 2014, was that she return to work working only  half a day in the mornings[173]. During cross-examination[174], the plaintiff was taken to the exchange of emails between herself and Ho[175].  These emails showed not only that Ho did respond to the plaintiff’s request and, indeed, chased her up, but also that a medical appointment was made, and not kept, and that when a further appointment was offered, it was the plaintiff who put that appointment off[176].  The plaintiff was game playing. She had stopped work on 18 October 2012 and had no intention of returning to work.   

112.  I do not accept the plaintiff’s submissions which I have quoted above.  The plaintiff has confused the duty of an expert to conduct a forensic evaluation with the court’s function to make findings of fact. After a forensic evaluation an expert may conclude that the plaintiff was exaggerating and malingering. The court, after trial, may find as a fact that the plaintiff was genuine and not a malingerer. In such an event, the court will not accept the opinion of the expert. And if the court makes a finding that the plaintiff was exaggerating and malingering, it would have little difficulty accepting the evidence of the expert. I also do not accept the submission that Dr Yu prejudged the plaintiff as being untruthful.

113.  I accept Tata HK’s submissions which I have quoted above.  For the reasons set out in those submissions, I prefer the opinions of Dr Chun and Dr Yu. I find that the plaintiff is a malingerer and grossly exaggerated her injuries and symptoms. I was impressed by and I accept the evidence of Dr Yu that even her treating doctor, Dr Paul Lam Tat Chung, who is a very experienced psychiatrist, did not diagnose MDD.  I do not accept the opinion of Dr Wong that the plaintiff fulfilled Criterion 8 for MDD – diminished ability to think or concentrate[177]: the plaintiff displayed intelligence and was articulate in her evidence before me and fielded the many difficult questions that were put to her. 

114.  Dr Wong was of the opinion that the medications she was prescribed were appropriate for depressive disorder of moderate to severe intensity but too large for adjustment disorder[178]. The opinion of Dr Yu was that a patient who exaggerated his or her symptoms to the psychiatrist would not take the medication prescribed to the patient[179]. I do not accept the plaintiff’s criticism of this opinion. The fact that medications were prescribed for severe depression does not prove that the plaintiff was not exaggerating her symptoms. I do not accept Dr Wong’s diagnosis of MMD, just because, as the plaintiff submitted, it was supported by and consistent with the diagnoses all treating psychiatrists:[180] treating doctors do not perform a forensic evaluation that an expert, engaged to render an opinion to assist the court, has to perform. 

115.  I also do not accept the plaintiff’s submission that the documented plaintiff’s significant weight loss, sense of anxiety, and negative side effects from drugs supports Dr Wong’s opinion and proved that the plaintiff was not a malingerer.[181]  The weight loss is not directly probative on the issue. Neither is the plaintiff’s documented anxiety which I am sure is felt by every litigant who has brought proceedings. In the light of all the other evidence I have relied upon to make my findings, I am not swayed by the fact that she did actually take some of the medications prescribed to her, and suffered side effects as a result, to conclude that she was not a malingerer.

My assessment of damages

116.  For the superficial (subcutaneous) contusion of the sacro-coccygeal and left buttock region and the mild adjustment disorder with depression that she suffered from as a result of her fall, I assess damages for PSLA in the sum of $150,000[182].  As she has received a substantial advance payment in excess of this sum before the service of the writ, I would not award any interest on this amount. 

117.  The plaintiff was entitled to sick leave for 4 weeks for which I would assess damages for loss of earnings in the sum of $45,075[183]. I do not accept the plaintiff’s submission that Dr Chien and Dr Chow being eminent practitioners, Dr Fu’s opinion endorsing the treating doctors’ sick leave should be preferred.  An expert medical witness will adopt a forensic approach in his evaluation, which a treating doctor does not adopt.

118.  I would also assess special damages in the sum of $50,000, which was conceded by Tata HK.

119.  As the plaintiff has received a substantial advance payment in excess of these amounts of $45,075 and $50,000, I would only award interest at the rate of 4.0625% per annum on the total amount of $95,075 from the date of the accident until the date of receipt of an advance payment in the amount, or greater than the amount, of $95,075.

120.  As the amount of advance payment in the sum of $1,343,808 was substantially in excess of the amounts I have assessed as damages and interest thereon, I would not have awarded any damages in this case even if I had found in favour of the plaintiff on liability.

Costs Order Nisi

121.  This action is dismissed. I make a costs order nisi that the plaintiff pays the costs of the action to Tata HK, to be taxed, if not agreed, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.