CHIU MAN CHI v. MOTOROLA ASIA PACIFIC LTD formerly t/a SYMBOL TECHNOLOGIES HONG KONG LTD

HCPI 150/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 150 OF 2011

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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 injury suffered in an accident at work. The accident occurred on 7 March 2008 at Guilin Merryland Resort Hotel in Guangxi, China. At the time, the plaintiff was one of the participants in a show that took place during the annual Motorola Enterprise Mobility Business Greater China FY08 Partner Conference. She fell during her performance in the show as she was descending from the catwalk of a T-shaped stage in the function room of the hotel where the show was taking place.

2.  The T-shaped stage is well-depicted in the photographs that were adduced into evidence[1].  A broad catwalk protruded from the stage into the audience area to form the T-shaped stage.  It was wide enough to comfortably accommodate 3 people walking abreast.  At the end of the catwalk were 3 steps, as wide as the end of the catwalk, which enabled participants to ascend to or descend from the catwalk to the floor of the function room.  As can be seen from the photographs, the stage, the catwalk and the steps were carpeted.  The carpet surface was smooth and without any kinks.  The rim of the catwalk was adorned with a string of neon type lights which did not impede the participants either on the catwalk or when they walked up and down the steps to and from the catwalk.

3.  The plaintiff, who was born on 30 December 1977, was 30 years old at the time of the accident.  She was employed as an Administrative Assistant by the defendant. Motorola (China) Electronics Co Ltd, an associated company of the defendant, held a business conference in Mainland China every year with the aim of reviewing the company’s business achievement and assessing future market development and strategy.  The plaintiff had attended such conferences in the past in 2006 and 2007,  when she had been responsible for attending to guests at the venue.  It was only at this conference, which took place between 5 and 9 March 2008,  that she had been asked to perform on stage.

4.  The plaintiff’s evidence was that, when told in Hong Kong that she would have to perform on stage, she immediately told her supervisor, Chan Chi Chung,  that she did not want to do it and that she just wanted to attend to guests off stage just as she had done in the previous two years.  However, he did not give her any definite answer at that time.  She pressed him on at least 2 more occasions to exempt her.  It was also her evidence that Chan Chi Chung and another colleague in Hong Kong, Wesley Cheung, had flown to the Mainland beforehand and were able to be coached and rehearsed with other Mainland colleagues; but that she was not coached in advance.  Before they went to Guilin,  the staff was notified by email about the performance arrangements, which included rehearsal instructions.

5.  On the night of 6 March 2008, most colleagues had arrived at the venue and they were able to look at the stage that was still being constructed.  This was the first time that she had met the other colleagues from the Mainland.  Her Mainland colleagues only told her in what order they should walk or run.  They did not have a full rehearsal for the performance and there were no sound or visual effects.  The stage was carpeted all the way to the stairs.  When she asked again to be excused, Chan Chi Chung flatly refused and told her she must perform on stage.  She had no choice but to comply.

6.  On 7 March 2008,  the conference began in the morning and the performances were scheduled to start after the end of the conference.  The team she belonged to was to perform at around 4 to 5 p.m.  The organisers did not provide them with any costumes or shoes for the show.  She wore her own clothes,  the company team shirt and sport shoes during the show and rehearsal.  Just before the performance,  they were instructed to change their performance in order to keep it shorter.

7.  In her witness statement, the plaintiff stated that she was running on the platform next to Wesley Cheung and that she used her right hand to throw a doll, a soft plush toy,  to the audience to her right.  When she threw the doll, her feet slipped on the carpet covered platform.  In her evidence-in-chief, the plaintiff said that she remembered that, in the course of running during her performance, she threw the doll.  She had a slip and lost her balance and fell.  It was at the time when she was running and throwing the doll that she fell.  She fell forward in an arc and tried to correct her posture by bending backwards, and her pelvis landed on the floor first.  She said that when she fell,  she saw that Chan Chi Chung saw her fall and slowed down to bypass her and then ran past her.  He almost had to stride across her body.  He continued his performance and did not help her up.

8.  In the course of her cross-examination, the plaintiff confirmed that it was normal for a person to look down at steps before beginning to descend them and she said:

“I was running. When I was throwing the doll out, I lost my balance.

…

I realised that I had already reached the edge of the stair and then I fell down.

…

In the course of running and when I was throwing the doll, I didn’t realise that I had already reached the edge of the stair.

…

In the course of running, I threw the doll and I lost my balance and fell.

…

The instruction was not … said very clearly during the rehearsal, and right before we went on the stage instructions changed. When I got on -- well, I was not familiar with the stage and once I got on the stage I was [in a] panic. I had to concentrate on, number one, running, number two, throwing the doll, and that’s why I had failed to pay sufficient attention to the stairs.

…

Well I have to shoulder the responsibility, because I was stupid.  If I just did it in such a lousy way as Wesley, that would not happen to me.”

9.  Mr Chan Chi Chung, the former Regional Sales Director of the defendant, was called to give evidence.  He was employed by another company unrelated to the Motorola Group when he gave evidence before me.  He had been asked to recall these events only in 2012,  some 4 years later.  He was the supervisor of the plaintiff and responsible to arrange the whole of his team, consisting of 3 colleagues from Hong Kong including the plaintiff, Mr Wesley Cheung and himself, and 2 colleagues from Mainland China, to attend the Motorola’s business partners’ conference.  The 3 of them flew to Guilin via Shenzhen on 6 March 2008 and met up with their 2 Mainland Chinese colleagues. Although they had previously received an email with an agenda setting out the time slot of their team’s performance, no advance notice had been given of the performance program before their arrival.  It was only when they went into the function hall of the hotel on 6 March 2008 that the 3 of them and their 2 Mainland colleagues were briefed about their performance, which he explained in his witness statement[2] as follows:

“a. Music would be played. My teammates and I would walk or run on the Stage holding two dolls one in each hand.

b. Ms. Chiu and Mr. Wesley Cheung would end up standing at the front row on the Stage close to the audience. I would stand alone in the middle of the second row. 2 of my colleagues from Mainland China would stand at the third or back row.

c. When the music stopped, my teammates and I would then walk or run down the Stage via a staircase consisting of 3 to 4 steps at the front of the Stage. Mr. Wesley Cheung would go first. Ms. Chiu would be the second one to be followed by me.

d. In the course of coming down from the Stage or after that, my teammates and I would throw the dolls to the audience.  That would be the end of the performance.”

The dolls he referred to were soft plush toys.

10.  After the briefing, there was one rehearsal on the well lit stage which had already been completed.  He could not recall whether or not the plaintiff had asked to be excused from performing before the rehearsal took place but she did not make or repeat any such request at the time of the rehearsal.  He wanted his whole team to perform to show their team spirit. 

11.  1 or 2 of the organisers demonstrated to them what they should do and they rehearsed more or less like their actual performance that was captured on the video.  However, they performed during the rehearsal without running and throwing any dolls. They were not instructed that it was necessary for them to run.  It was left to him and his colleagues to decide for themselves whether to walk or to run and from where to throw the dolls during their actual performance. The performance was so simple that he did not give thought to the possibility that a colleague running to the edge of the catwalk to throw the doll could fall from the stage.

12.  The actual performance took place at about 5.30 pm on 7 March 2008 and only took 1 to 2 minutes.  There was no time constraint. They had not been asked to finish their performance more quickly.  He did not witness the plaintiff’s fall as he was concentrating on throwing the two plush dolls he was holding.  He only threw the dolls when he had come down the steps to the floor of the function hall.  The plaintiff had not reported to him that she had fallen or that she had suffered any injury.  The program finished at about 8.30 pm. He had only come to know that she had fallen in May 2008 when he had enquired from her why she was on sick leave.

13.  I accept the evidence of Mr Chan Chi Chung.  He gave evidence in a straight forward manner and I accept his evidence which he gave to the best of his recollection.  I find that the T-shaped stage and the steps had been built and carpeted by the hotel.  I find from his evidence and from my review of the photographic and video evidence that the T-shaped stage and steps leading down to the floor was well lit and firm and safe for use by the participants and that the carpet was dry and in good condition and not slippery.  There were no handrails for the performers to hold as they went up or came down the 3 steps.  Handrails were not reasonably required for this short flight of 3 steps.  I also accept his evidence that they did not receive rehearsal instructions in advance in Hong Kong, that the 3 of them flew to Guilin together, and that their performance had not been shortened.

14.  The video of the performance clearly showed what happened.  The performers wore their own clothes and suitable shoes.  The only “costumes” they wore were head bands sprouting “Mickey Mouse” or “Bunny Rabbit” type of comical ears.  The performance started with the plaintiff’s supervisor, Chan Chi Chung, coming out on the stage, holding two plush toys.  He was not running but was trotting in a comical way to the end of the catwalk, where he stopped and then pretended to throw the two plush toys before returning to the centre of the stage at the beginning of the catwalk, where he remained standing.  He was followed by his Hong Kong colleagues, Wesley Cheung and the plaintiff.  Wesley Cheung came out first, followed by the plaintiff, and they both went on to the catwalk but not as quickly as Chan Chi Chung.  They stopped at around the middle of the catwalk and pretended to throw their plush toys, before turning back and walking slowly to the stage where they stood at the two opposite ends of the stage.  Their Mainland colleagues then came out to perform.  They did so in a more enthusiastic manner than the plaintiff and Wesley Cheung.  They also trotted out onto the stage as Chan Chi Chung had done and they were more animated than the plaintiff and Wesley Cheung when they pretended to throw their plush toys by flinging out their arms.  They then turned and trotted back and stood behind Chan Chi Chung at the back of the stage.

15.  Wesley Cheung and the plaintiff then signalled to each other to come back out on the catwalk.  They were not running but walked out onto the catwalk.  Wesley Cheung was the first to reach the end of the catwalk where he looked down at the steps before walking down to the floor of the function room.  He only threw his dolls when he had reached the floor of the function room.  The plaintiff also came out onto the catwalk, one or two steps behind Wesley Cheung, but she decided to throw one of her plush dolls, that she had held in her right hand, while she was still on the catwalk.  The plaintiff was walking throughout this part of her performance. After throwing the first doll, the plaintiff can be seen looking down as she neared the end of the catwalk and she then transferred the second doll from her left to her right hand, continuing to look down as she did so.  She is then momentarily blocked by the hand of someone in the audience but when she is seen again, she is shown on the video to be walking towards the end of the catwalk holding the second doll in her right hand.  Just as she threw this second doll with her right hand, looking up as she did so, she can be seen to be falling down in a straight motion.

16.  She was followed by Chan Chi Chung trotting up slowly to the end of the catwalk.  He looked down and walked down the steps slowly to the floor of the function room before throwing his two dolls simultaneously.  His evidence that he did not sense anything unusual during his performance is supported by the video which shows that he was not obstructed by and did not have to stride across the plaintiff to reach the floor. After he had thrown his dolls, their 2  Mainland colleagues completed the performance.  As their Mainland colleagues were performing, Wesley Cheung, Chan Chi Chung and the plaintiff, who had already stood up after her fall, can be seen in the foreground walking almost in single file up to and past the video camera.  As they did so,  their Mainland colleagues trotted onto the catwalk where they stopped to throw both their dolls before walking down the steps to the floor of the function room.

17.  A person performing multiple tasks simultaneously may not do so as adequately or as well as when the tasks are performed separately. The plaintiff threw one of the dolls with her right hand as she walked to the end of the catwalk. She then transferred the other doll from her left hand to her right as she continued to walk to the end of the catwalk.  She was looking down during this time.  She then looked up momentarily and threw the second doll.  She did so when she had reached the end of the catwalk, at a point in time when she should have been paying attention to the steps she had to descend.  She missed her step and fell and landed on her buttocks.  I find from my close review of the video that she did not slip and fall.  She was walking, not running.  The catwalk was carpeted and she was wearing suitable sport shoes.  The motion depicted on the video, although slightly obscured by the audience standing in front of the video camera, is of her head and body falling down in a straight motion which is consistent with a misstep but not consistent with a slip and fall.  Although the video depicts her as looking down as she neared the end of the catwalk,  such that she ought to have seen the approaching step and ought not to have missed it, I find that her concentration on throwing the second doll caused her to miss that first step and to fall.  It is a human error of the most common and forgivable kind, and there is no shame to be associated with it. However, on what grounds can the plaintiff assert that this misstep and fall was not only caused by the defendant, but by the negligence of the defendant?

18.  I accept her evidence that she asked to be excused from performing on stage but her supervisor said she must do so.  She did not express to her supervisor that she suffered from any vulnerability that rendered her unsuitable to perform on stage.  Indeed, she looked self-assured and confident during this performance and at a subsequent show performed after dinner on the same night for which she had changed her outfit and during which she was standing at the back of the stage with her co-performers swaying and clapping their hands as the main performer sang and danced in front of them[3]. I do not accept the plaintiff’s evidence that she suffered a panic attack.

19.  She did not receive express instructions not to run down the catwalk or down the steps but the video shows clearly that, at the time that she fell, she had been walking and not running.

20.  It was not negligent for the defendant to leave it entirely to her to decide when to throw the dolls.  The task was a simple one which could be safely left to the plaintiff and her colleagues to perform as they chose[4].  The plaintiff chose to throw the second doll as she neared the end of the catwalk, a decision that required her to perform multiple tasks: swing her right arm to throw the doll; looking as the audience as she did so; and look down as she took her first step off the catwalk.  Her decision to do so did not mean that her choice was unsafe.  All she had to do was to pause as she threw the second doll before looking down again and proceeding to step off the catwalk.  Even if an express instruction had been given by the defendant, which was not the case, that she should throw the dolls as she neared or was descending the steps, that would not, in my judgment, have amounted to negligence on the part of the defendant who could reasonably rely on its employees to look down as they descended the steps, even if they had to throw the dolls either before or while descending those steps.  No special system of work or special instructions are needed where the task required of the employee is perfectly safe if the employee exercises the standard of care for her own safety that can reasonably be expected of her.

21.  For these reasons, the plaintiff’s action is dismissed.  The plaintiff had agreed that, if I found against her on her claim for damages for breach of her employer’s duty of care at common law, her claims under the Occupiers Liability Ordinance, Cap. 314, and the Occupational Safety and Health Ordinance, Cap. 509, and the regulations thereunder, must also fail.

22.  In case I am held to be wrong on the issue of liability, I set out briefly my findings on contributory negligence and the quantum of the damages suffered.

23.  On the basis that the employer was at fault in leaving the plaintiff to choose to throw the second doll as she neared the end of the catwalk, I would hold the plaintiff 50% to blame for failing to have sufficient regard for her own safety, by failing to pay sufficient attention to the steps at the end of the catwalk that she was approaching.

24.  The plaintiff was able to get up immediately after she had fallen, and continued with the activities of that evening.  As I have stated above, she performed in another show after dinner.  She also joined a sightseeing tour with the business associates of the defendant in Guilin on the following day[5].  She did not exhibit any signs that she had been injured or was unwell.  Indeed, she stayed behind on holiday leave in Guilin and only returned to Hong Kong on 12 March 2008.

25.  She was 30 at the time of the accident on 7 March 2008 and she is now 38 years old.  She graduated from University with a Bachelor of Business Administration degree. The statement appearing in her Revised Statement of Damages that, after her return, she attended numerous health professionals in the private and public sectors for various complaints since 2008, is a gross understatement.

26.  She was examined by the joint orthopaedic experts, Dr Eric Chien Ping and Dr Lam Yan Kit, on 4 May 2010, and they prepared their joint report dated 29 July 2010 in which they set out the history they had obtained from the plaintiff.  She told them that she lost her balance and slipped on the stairs and hit her back.  She landed on her buttocks and her back.  She continued to slide on the edge of the stairs and hit the back of her head.  She also reported that she had twisted her left and right ankles.  She managed to walk back to the stage and continue to perform as a supporting staff by standing at the back of the performance platform.  She had to change her dress so as to attend the official dinner afterwards.  While changing, she noticed there were bruises over the lateral side of her right and left ankle, the left iliac crest and possibly over the right gluteal and back area as well as the right and left upper calves.  She reported that there was pain over both knees and both ankles.  There was swelling over the knees with redness but there were no bruises.  She also reported that there was swelling and redness over both wrists.  After returning from the official banquet to the hotel, she noticed dizziness, pain and tiredness.

27.  She continued with her own tour in Guilin and consulted a traditional Chinese medicine practitioner there on 12 March 2008.  She started to seek medical treatment in Hong Kong from 26 March 2008.  The orthopaedic experts have summarised these consultations and treatments in their joint report, including her consultations of Dr David Fang, the orthopaedic surgeon, and Dr Robert Ho, the neurologist.  She underwent physiotherapy, including shockwave and electro therapy, and acupuncture, and she also received treatment from a chiropractor, Dr David Cosman.  The complaints recorded by these doctors and therapists included dizziness, low back pain, left hip pain, bilateral knee pain, diffuse tenderness over thoracic and lumbar spine, headache, and numbness over 4 limbs.  MRI brain, cervical and lumbar spine did not show any abnormality. Nerve conduction test did not detect any nerve injury.

28.  Her complaints to the orthopaedic experts included walking in a very slow pace, needing 3 minutes to complete 100 metres;  difficulty of walking for more than 5 minutes because of the pain over both ankles;  pain over cervical and lumbar area;  and sleep disturbance and poor quality of sleep.  The orthopaedic experts conducted their physical examination on the plaintiff and they also reviewed the multiple medical reports which they summarised in their joint report[6], including surveillance video tapes, showing that the plaintiff’s mobility was normal and that she walked with a normal gait, that she carried a backpack on her back throughout the surveillance, that she was seen ascending and descending stairs normally without holding the handrails on several occasions, that her standing and sitting posture were seen to be normal;  and, on a subsequent occasion, that she went to Dr Eric Chien Ping’s clinic without carrying any walking aid;  her mobility was normal;  she walked down the stairs without holding the handrail; she sometimes carried the backpack in her arms and sometimes on her back;  and she moved her head freely and naturally without showing any sign of neck pain.

29.  There was a substantial agreement between the orthopaedic experts who stated in their joint report[7] that she was managed by multiple practitioners, including the family physician of her company, three orthopaedic surgeons, neurosurgeon, neurologist, ENT surgeon at private sector and Tseung Kwan O Hospital.  She was also managed by pain specialist and clinical psychologist, and was on regular medications.  She received physiotherapy both in the private and public sectors.  Investigations included x-rays and MRI of her brain, cervical spine and both ankles.  They concluded that there was no significant bony injury reported, and there was also no significant tendon inflammatory or ligamentous injury shown in both ankles.  Nerve conduction tests of both upper limbs and lower limbs were normal.  They agreed, from the history, clinical examinations and radiological examinations,  that the plaintiff had suffered minor soft tissue contusion and sprain injury to the regions she described including the neck, back and ankles which was consistent with the mechanism of the injury on 7 March 2008.  However, they would defer to the opinion of a neurologist, whether any post-concussion syndrome she suffered was caused by the accident.  They believed that the symptoms of neck and back pain were mild in nature, and there was no structural damage reported in the MRI of the neck and back areas.  They were of the view that the symptoms of generalized fitness deterioration, sleep disturbance and nausea could not be explained by the anatomical features of the injury mechanism and their subsequent findings. From their orthopaedic viewpoint, no further treatment was necessary apart from the need of intermittent analgesics for symptomatic control.  According to them, psychological and emotional management ought to be determined by concerned specialists.  They agreed that the plaintiff should be independent in her activities of daily living and did not require continuous attention.  The injury ought to have no impact on her social, recreational and sports activities, and she should be able to resume her pre-accident occupation as a business support specialist with slightly reduced capacity, efficiency and endurance.

30.  They agreed that the ordinary sick leave required for soft tissue contusion injury was about 6 months, but that, in her case, her total sick leave spanned a period of some two years, and amounted to around 500 days.  They assessed the impairment of the whole person for mild soft tissue contusion at 2% of the whole person.

31.  I accept the expert opinion of the orthopaedic experts without any hesitation whatsoever.

32.  The plaintiff was also examined by the neurologists, Dr Yu Yuk Ling and Dr Edmund Woo on 22 February 2011.  Their joint report was dated 11 July 2011.  The plaintiff told them that she was reluctant to relate the accident, as mental concentration on the subject would induce severe headache.  She stated that she fell down some stairs as she was performing on stage and landed on her left hip region.  She said that she jolted her head backwards in the fall but she could not state if she had any impact to her head.  She was dazed without loss of consciousness.  She was fully aware of subsequent events.  She managed to get up by herself after a couple of attempts. She returned to complete her role in the performance.  She did not seek any immediate medical attention nor did she require any rest, but she had pain in her upper and lower back, her arms, her hips, her knees and her ankles.  She only returned to Hong Kong on 12 March 2008 and, over the next few months, suffered from symptoms of headache, dizziness, back pain and limb pain but she continued going to work.  However, she required frequent sick leave to attend appointments with doctors, chiropractors, physiotherapists and bone-setters.  Her current medications included Lexapro, Diazepam, Nortriptyline, Diclofenac, Famotidine and analgesic ointments.  She complained to the neurologists that she was suffered from frequent occipital headache, intermittent dizziness of moderate intensity, she had difficulty concentrating and her performance in mental tasks had deteriorated; her personality had changed;  she had a sprained sensation in the neck; and that she suffered from paraesthesia and tremor in both hands. Although her symptoms had actually improved in the 2 years since the fall, they were all reactivated after the joint orthopaedic evaluation that took place on 4 May 2010. At that evaluation, pressure was applied over the top of her head, resulting in a severe relapse of her headache and dizziness.

33.  The neurologists, Dr Yu and Dr Woo, detailed their findings made during their joint examination of the plaintiff in their report in which they also referred to the video surveillance.  Dr Yu was of the opinion, giving her the benefit of the doubt, that the back of her head knocked on the stair of the platform, and that she sustained a mild head injury as a result of the accident.

34.  I am able to find, from my review of the video tape of the performance, from the manner in which she fell, and from my assessment of her credibility as a witness[8], that she did not strike the back of her head when she lost her step and fell on her buttocks and that she only jolted her neck.  She had told Dr Robert Ho that she did not hit her head[9].  She made no mention of hitting her head for a period of 1 year after the accident during which she visited 15 different doctors[10]. Having made this finding, I am able to conclude that I prefer the opinion of Dr Woo who stated that there was no evidence that a sudden backward jolt of the head, without any direct impact, could caused a head injury, as the cerebrospinal fluid within the cranium would cushion the brain against sudden jolts.

35.  I also prefer the opinion of Dr Woo that the plaintiff had no residual disability or impairment of the whole person from a neurological perspective.  Dr Woo listed many unusual features observed during their examination of the plaintiff, and he pointed to the surveillance video showing that she could walk unaided and in good stride, contrary to her preferred use of a cane, and the severe leg weakness that she had demonstrated during the examination.  He concluded that the discrepancies and inconsistencies defied neurophysiological principles and raised strong suspicion that her deficits were feigned for the purpose of the examination and cast doubt on the genuineness and integrity of her complaints.  Even Dr Yu had to concede that her non-neurological weakness was more likely to be an unsophisticated attempt to impress the examiners of her perceived disability and might be related to her depressive illness.

36.  The plaintiff was examined jointly by the psychiatric experts, Dr Kieran Singer and Dr Peter W. T. Yu, on 21 February 2012 and 7 August 2012.  They prepared 2 joint reports dated 3 January 2013 and 7 January 2013 and they maintained the same opinion in both of them.

37.  Dr Singer’s opinion can be seen from the following extract from the first joint report[11]:

“Conclusion

I opine her complaints of severe depressive mood and associated symptoms are discrepant with the mildness of her physical lesion from the accident. However the discrepancy can be partly accounted for by additional accident-related stress such as her perceived grievances against the company.

I opine she is in direct consequence of the accident suffering from

- Mild to moderate AD[12] not severe as presented.

2. Re PCD[13] and PTSD[14]

For

The patterns of symptoms fit the diagnoses of PCD and PTSD.

Against

i. Re PCD

Loss of consciousness is usually required to make the diagnosis. In Ms. Chiu’s case all the reports available have stated she did not lose consciousness.

However there is a body of opinion which holds that PCD can occur with mild head injury and minor impairment of consciousness. Even so on the assumption that a diagnosis of PCD is justified the mildness of head injury she sustained is discrepant with the severity of symptoms of PCD she complains of and casts doubt on her credibility. I opine she has symptoms of PCD not amounting to a diagnosable PCD.

ii. Re PTSD

This diagnosis cannot be made unless she fulfils both criteria of Section A of PTSD (see Appendix III). She fulfils neither because:

The accident did not threaten death or serious injury.

She did not experience intense fear, helplessness or horror at the time of the accident.

It is likely she had clinical features of PTSD not amounting to a diagnosable PTSD according to DSM-IV criteria.

Conclusion

There is an element of exaggeration.

She is suffering from AD of moderate severity caused by the subject accident.

She has clinical features of PTSD not severe enough to amount to a diagnosable PTSD caused by the accident.

She has clinical features of PCD not severe enough to amount to a diagnosable PCD caused by the accident.”

38.  Dr Yu’s opinion can be seen from the following extract from the first joint report[15]:

“(1) Credibility

Ms Chiu’s description of symptoms is not credible. There are a number of inconsistencies.

a. She had minor injuries at the most, as she continued to perform on the stage, had a tour (work-related) the following day, and joined a 4-day pleasure tour of Guilin thereafter. If she was badly hurt, she should have returned to Hong Kong to seek treatment much earlier.

b. Report of symptoms involving various body parts is not credible. She should know anal or genital symptoms could not have developed after a fall. Instead, she blamed coccyx injury due to the fall and claimed a physiotherapist said so. Apparently, she found no doctors supporting her claim.

c. Ms Chiu’s report of re-experiencing is not credible, as she did not experience a traumatic event involving actual or threatened death or serious injury and she did not respond with intense fear.

d. The surveillances and the previous joint assessments (orthopaedic & neurological) do not indicate any physical disabilities. Thus, Ms Chiu should not have mood symptoms arising from pain. The depressed mood she reported is an exaggeration. Asking for a bed, wearing a mask, bringing own sitting-cushion, retching repeatedly, walking with a stick, getting up repeatedly for pain relief, and crying in front of us is over-acting.

e. Report of marked worsening, due to pressure on the top of her head, after the joint orthopaedic examination is dramatisation.

f. Report of repeated suicide attempts of near-throwing self out of a window is dramatisation.

g. Report of hearing non-existent voices with full consciousness, which are unique to psychoses, is dramatisation.

h. Ms Chiu showed no tiredness during the 4-odd hour examination. Yet she reported persistent and severe sleep impairment.

i. Report of concentration and memory impairment did not match what was observed. Ms Chiu showed adequate attention and concentration. She did not have any problem understanding what she was told or asked. She gave appropriate responses to questions and expressed her ideas well.

j. She overacted during our screening tests for intellectual impairment, as she performed worse in similar tests a year later.

k. Ms Chiu bought a flat more than a year after the accident. Apparently, she needed no help in making an important decision and dealing with a law firm and a bank providing mortgage. This indicates good functioning.

(2) Psychiatric Diagnosis

a. Ms Chiu does not have any mental disorders. Any anxiety or other mood symptoms are due to the stress and the frustration of magnifying or dramatising disabilities. Such symptoms are of minor degree, reasonable and do not affect functions.

b. Adjustment Disorder: Even if magnifying or dramatising disabilities is considered as a stressor, Ms Chiu did not have marked distress or significant functioning impairment.

c. Posttraumatic Stress Disorder (PTSD): Ms Chiu did not experience a traumatic event involving actual or threatened death or serious injury and she did not respond with intense fear. Her report of re-experiencing, a symptom unique to PTSD, is not credible.

d. Postconcussional Disorder (PCD): A history of head trauma that has caused significant concussion is a diagnostic criterion.  Ms Chiu did not have such a history.  Most, if not all, symptoms of PCD (like fatigued easily, disordered sleep, headache, dizziness, irritability) are non-specific.  If an insignificant knock to the head is accepted as head trauma, anyone with three or more non-specific symptoms has PCD.”

39.  I have little difficulty in rejecting the assertions that she suffered from PCD or PTSD. Even Dr Singer was stretched to try to confirm a diagnosis of either condition.  All he could assert was that she exhibited clinical features of these conditions.  On the issue of whether or not she suffered from an adjustment disorder brought on by the accident,  I have no hesitation accepting the opinion of Dr Yu that she does not suffer from any mental illness for the reasons that he has set out.

40.  I have reviewed the surveillance video taken on 5 November 2009 that shows her walking and climbing stairs perfectly normally without holding the handrails[16]. It also shows her travelling from her home to Central to consult Dr Cosman, then to Hang Hau to consult Dr Chu Wen Jing, then to shopping malls in Hang Hau and Po Lam for shopping on her own, and with another female companion.  The entire outing lasted more than 4.5 hours[17]. Dr Singer watched the same video and concluded that she was “walking briskly” and “going up stairs briskly without holding handrails”[18]. However, during a work assessment which was carried out by her physiotherapist on 5 October 2009, when asked to explain how she perceived her physical status, she described her condition as “severe” and “crippled”,  that she could only walk for 5 minutes, sit for 10 minutes and stand for 5 minutes, and that her “self-perceived capacity was at less than sedentary level”.[19]  Dr Woo noted that “the severe degree of motor weakness that she had demonstrated in her legs, if genuine, would render her unable to stand, let alone walk”[20].

41.  It was the plaintiff’s evidence that by the time she was examined by the orthopaedic experts in May 2010, her condition had improved greatly but that, as a result of what they did to her, everything relapsed.  The plaintiff accepted that when she was seen by the neurologists in February 2011, she did not perform the various physical tests she was asked to perform to her full capability and she claimed that she did not do so, not to mislead the examining doctors, but because, according to her, the examination carried out by the orthopaedic experts in May 2010 had caused all her symptoms, from which she had almost recovered, to return and, hence, she did not wish to perform the various tests as fully as she was capable of, in case those tests also aggravated her condition.  I am wholly unable to accept this incredible evidence.

42.  The plaintiff has not subconsciously adopted a sick role.  She is an outright malingerer. She has an easy facility of becoming tearful almost at will, as she did before me, and as noted and recorded by most of the doctors she consulted and who examined her expert witnesses for these proceedings.  She had sufficient concentration and stamina to sit through a lengthy cross examination spanning 2 days.

43.  On the basis that 100% liability is established against the defendant, I would make the following award of damages.

44.  I would award damages for PSLA in this case for the minor soft tissue contusion and sprain injury to the plaintiff’s neck, back and ankles in the sum of $150,000, plus interest on that sum at the rate of 2% per annum from the date of service of the writ until judgment.

45.  I would only allow loss of earnings for the sick leave taken by the plaintiff in the first 6 months following the accident. In this 6-month period she took sick leave for 65.5 days[21]. I accept the plaintiff’s case that her salary at the relevant time was $16,411 ($14,956.63 x 13 months + $2,500 cash award[22] = $196,936 ÷ 12).  I award $37,622 ($16,411 x 65.5/30 x 1.05) for past loss of earnings and past loss of MPF, plus interest on this amount at the rate at 4% per annum from the date of the accident until the date of payment of employees’ compensation.

46.  I award special damages in the sum of $15,540 being the cost of 26 visits to doctors and hospitals, including transport cost, and the cost of tonic food over this period of 6 months from the date of the accident.  The plaintiff had 26 medical visits from 7 March 2008 to 6 September 2008, four of which were visits to Tseung Kwan O Hospital[23]. The plaintiff lived in Po Lam Estate, Tseung Kwan O.  I award:

(1) $100 medical fees per visit to Tseung Kwan O Hospital, and $500 per visit elsewhere;

(2) $10 transportation fees per visit to Tseung Kwan O Hospital, and $50 transportation fees per visit elsewhere; and

(3) $3,000 for tonic food,

(4) making a total of $15,540 ($100 x 4 + $500 x 22 + $10 x 4 + $50 x 22 + $3,000).

47.  The orthopaedic experts were somewhat generous in their joint opinion that she should be able to resume her pre-accident occupation as a business support specialist with slightly reduced capacity, efficiency and endurance.  I find that any such reduced capacity is likely to be short-lived.  I would only award $30,000 as damages for loss of earning capacity being 15% of 1 year’s annual earnings ($16,411 x 12 x 15% rounded off).  An award of loss of earning capacity does not attract interest.

48.  I do not make any award for future loss of earnings or future medical costs and expenses.

49.  A summary of my award is follows:

PSLA	$150,000 and Interest
Pre-trial Loss of Earnings & MPF Benefits	$37,622 and Interest
Loss of Earning Capacity	$30,000
Special Damages	$15,540 and Interest
Sub-total:	$233,162 and Interest
Less  Employees’ Compensation paid	($534,027)
Net award:	Nil

50.  I make a costs order nisi that the plaintiff pays the defendant’s costs of the action to be taxed, if not agreed.  I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.