CHAN YUK WAI v. SWIRE PROPERTIES MANAGEMENT LTD AND ANOTHER

DCPI 3067/2021

[2024] HKDC 172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3067 OF 2021

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JUDGMENT

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INTRODUCTION

1.  This is a personal injury claim brought by the plaintiff against the 1^st and 2^nd defendants out of a slippery accident occurred on a flight of staircase. Both issues of liability and quantum are in dispute.

BACKGROUND

The Accident

2.  In a drizzling evening on 3 June 2019, the plaintiff employed as an Assistant Concierge by 1^st defendant was patrolling in a private residential area, Whitesands, No 160 South Lantau Road, Lantau Island, New Territories (“Whitesands”). At around 9:20 pm on that day, while performing her patrolling duties at the staircase leading to the pumping room (“Staircase”), the plaintiff missed the last step of the Staircase while opening an umbrella. She then fell forward and sustained injuries to her left ankle and right shoulder as a result (“the Accident”).

3.  After the Accident, the plaintiff rested for a while and got up to resume work. She felt pain in her left ankle immediately and also pain in her right shoulder half an hour later. There was no other injury and the plaintiff was conscious all along. She informed her supervisor of the Accident as she could not perform her patrolling duties any further. The pain gradually increased and at around 5 am of the next day she was sent to A & E department of North Lantau Hospital by ambulance.

The Plaintiff’s case

4.  The liability allegedly arising from negligence in failing to provide a safe place and system of work by the 1^st defendant as the direct contractual employer; and also from the occupiers’ liability in failing to provide a safe place for the plaintiff as a lawful visiter/user by the 1^st defendant as the management company of Whitesands and by the 2^nd defendant as not only the owner of the common areas and facilities including the Staircase at Whitesands but also the manager of Whitesands as appointed by a Deed of Mutual Covenants dated 27 January 2016.

5.  It is plaintiff’s case that the 1^st defendant was the employer of the plaintiff within the meaning of the Occupational Safety and Health Ordinance (“OSHO”) with Whitesands, including the Staircase, being the “workplace” under OSHO. Both the 1^st and 2^nd defendants (“the defendants”) are the occupiers of Whitesands, including the Staircase and the plaintiff was a lawful visitor thereat within the meaning of the Occupiers’ Liability Ordinance, Cap 314 (“OLO”).

The Defendants’ case

6.  The defendants on the other hand averred that the Accident was caused wholly by the negligence of the plaintiff in which among the other allegations, the plaintiff did not carry properly the LED searchlight provided by the 1^st defendant (“LED searchlight”) to illuminate the Staircase and failed to look out properly the steps of the Staircase. Besides, the plaintiff had unnecessarily carried her personal belongings in performing the patrolling duties so that she did not have a free hand to carry the LED searchlight properly to illuminate each step of the Staircase.

7.  Regarding details of the Staircase, it was made of cement and in grey colour. The steps of the Staircase were intact. Each step of the Staircase was about 109 cm (L) x 26 cm (W) x 17 cm (H). The nosing tile of each step of the Staircase was painted in white so that it as alleged would be conspicuous to its users. There was also a metallic handrail and lights installed on the adjacent wall of the Staircase.

8.  It is defendants’ further contention that the plaintiff had contributed to this Accident by her own fault and shall bear at least 50% of the liability if the liability is established and accepted by this Court.

Issues in relation to liability

9.  Insofar as the question of liability is concerned, the main issues that the court has to resolve in this case include:

(i)  Was the Accident caused by the negligence of the 1^st defendant being the employer of the plaintiff? Was the Staircase sufficiently illuminated? Whether any proper work instructions should be given to the plaintiff as to how to carry and/or use the LED searchlight while performing patrolling duties? This relates to whether the 1^st defendant has provided a safe place of work and/or safe system of work?

(ii)  Whether the defendants were occupiers of the Staircase at Whitesand? If so, whether they have provided a safe place for the plaintiff as a lawful visitor?

(iii)  In the event that the defendants are liable for the plaintiff’s injuries, did the plaintiff herself also contribute to her own injuries? If so, to what extent?

DISCUSSION

Deficiency of the Plaintiff’s Case

10.  The defendants did not dispute the occurrence of the Accident but that the mere occurrence of an accident did not give rise to a presumption of negligence and also that the burden of proof remained on the plaintiff to prove that there has occurred an event which was unusual and which, in absence of explanation, was more consistent with fault on the defendants than the absence of fault. (see Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Ltd (unreported, HCPI 936/2005,20/11/2007).

11.  Regarding how the Accident occurred, the defendants pointed out that there were discrepancies between the plaintiff’s oral evidence in court and her witness statement. Relying on those discrepancies, the defendants submitted that this was a case of pure misfortune or fault on the part of the plaintiff to have missed the last step of the Staircase and thereby met the Accident.

12.  I do not intend to repeat the said discrepancies in the plaintiff’s evidence here. In a nutshell, the plaintiff admitted under cross-examination that (i) had she shone the LED searchlight onto the Staircase, she would have seen the last step and also that (ii) even though she shone the LED searchlight on the right sidewall of the Staircase, she could have seen the Staircase via the reflection of the LED searchlight on the right sidewall. In a word, she said she could see the Staircase under the circumstances mentioned in the cross-examination.

13.  The Court however viewed it is clear from the plaintiff’s evidence she could only see the last step of the Staircase with the existence and/or assistance of the LED searchlight, no matter she shone it onto the Staircase or on the right sidewall of the Staircase.

14.  On the facts of the present case, the Staircase was located in the outdoor area. During daytime, it is obvious that one probably has no difficulty in seeing each and every step of the Staircase even without any illumination. At night, it is equally obvious that sufficient illumination is required in order to see clearly each and every step on the Staircase. I emphasis the word “sufficient” since insufficient illumination, in my view, is no difference to no illumination under some circumstances, for instance, in a rainy night.

15.  As a result, according to the plaintiff’s evidence, she, no matter under circumstances (i) or (ii) of paragraph 12 hereinabove, needed the assistance of the LED searchlight in order to see the last step of the Staircase was not that usual an event (if not unusual) if the Staircase was sufficiently lit up.

16.  This court do not see it as a case of pure misfortune or fault wholly on the part of the plaintiff to have missed the last step of the Staircase and therefore not see it as justified to dismiss the plaintiff’s claim.

The 1^st Defendant’s Liability as the Plaintiff’s employer

17.  The plaintiff is no dispute the employee of 1^st defendant who thus owed to the plaintiff the duty of care to take reasonable care for her safety. And, as stated in Cathy Pacific Airways Ltd v Wong Sau Lai [2006] 2 HKLRD 586, the standard of care demanded is naturally a high one since personal safety is at stake. Breach of this duty may result in injury (like the plaintiff in the present case) to or even death of an employee. This very duty of case involves, inter alia, the provision of a safe place of work and the main thrust of the plaintiff’s case was that the 1^st defendant did not provide the plaintiff with a safe place of work, namely a Staircase without sufficient illumination.

Safe place of work

18.  The plaintiff’s primary case is that the insufficient lighting of the Staircase caused the plaintiff to miss the last step of the Staircase and meet the Accident accordingly. On evidence, namely the CCTV footage showing the material location and photo captures of the same, lighting was installed on the adjacent wall of the Staircase at some distance from the landing area of the Staircase.

19.  In this regard, the defendants’ counsel, Mr Chung invited this Court to consider the sufficiency of the illumination of the Staircase together with the strong lighting projected from the LED searchlight provided by the 1^st defendant to the plaintiff. First, the very fact that this Court was asked to consider the lighting from the LED searchlight might in fact tilt the balance in favour of the plaintiff’s case that the lighting of the Staircase was not sufficient to such extent that the 1^st defendant had to provide the LED searchlight to her staff in addition to the lighting installed at the Staircase. Notwithstanding this, there is in fact no evidence in the defendants’ case or at all that work instructions have been given to the assistant concierges including the plaintiff that they must bring along the LED searchlight when performing the patrolling duties and also instructions as to how to operate the LED searchlight in such a way that the lighting projected by the LED searchlight would illuminate the Staircase while patrolling on the same. In absence of any instructions to carry the LED searchlight along while on patrolling duties, there may be a possibility that the plaintiff may not bring the LED searchlight for patrolling. Again without any instructions how to properly use the LED searchlight to light up the Staircase, the way the plaintiff carried the LED searchlight may not cover fully the Staircase. In fact, this was what had happened in the present case. In the premises, I do not agree with Mr Chung that the Court should also consider the strong lighting projected by the LED searchlight when deciding whether the illumination is sufficient for providing a safe place to work and/or a safe place for the lawful users at the Staircase.

20.  Regarding the need to use the LED searchlight, the defendants’ witness Madam Lam Wai Kee (“Madam Lam”), the concierge of the 1^st defendant agreed that the provision of the LED searchlight was a supplementary measure and also that one could walk along the Staircase without using the LED searchlight if the Staircase was sufficiently lit at the material times.

21.  Moreover, the defendants submitted discrepancies in the plaintiff’s evidence regarding how the Accident occurred and/or how she held the LED searchlight at the material times. The Court is of the view that attacks on the plaintiff’s credibility did not help much on this issue whether the 1^st defendant has provided a safe place for the plaintiff to work. The fact that the plaintiff did not use the LED searchlight properly (even if the Court accepts so) did not assist the defendants’ case if the Court is of the view that the Staircase was too dim to be a safe workplace.

22.  Apart from the LED searchlight, the defendants also suggested that there was white paint on the steps of Staircase reflecting the lighting installed on the adjacent wall of the Staircase. It was however not disputed that some of the white paint on the Staircase has demolished. It was further admitted by the defendants’ witness Madam Lam that the white paint would not have reflection effect at night. It is in fact evidenced by the CCTV footage which shows that there was no light reflected by the white paint which could be seen on the Staircase or would be conspicuous to any users of the Staircase as alleged by the defendants.

23.  Having the benefit of watching the CCTV footage which shows the Court not only the lighting of the Staircase but also how the Accident happened at the material times, I am, on balance of probabilities, of the view that the lighting of the Staircase was dim and dark, in other words, insufficient for being a safe place either for any staff to patrol thereat or for any lawful visitor to use the Staircase.

24.  For the sake of completeness, I would like to deal with a number of the defendants’ contentions. First, it was the contention in relation to how the plaintiff used or carried the LED searchlight to light up the Staircase. Despite the lengthy cross-examination of the plaintiff on this issue, I am of the view that this issue actually goes to contributory negligence rather than liability. Notwithstanding this, if there is sufficient lighting for the Staircase, just like the condition after the solar light was installed after the Accident, there would then be sufficient lighting for any visitor including the plaintiff to perform her patrolling duties even without the LED searchlight. Then, the issue as to how the plaintiff used or carried the LED searchlight to light up the Staircase would simply become no issue at all.

25.  The defendants’ another contention was that there was no previous accident of similar nature occurred at the Staircase before. The fact that there is no previous accident is just neither here nor there. The absence of previous accident does not mean that the illumination of the Staircase was sufficient enough to provide a safe workplace to the plaintiff.

26.  The defendants also contended that no prior complaints from residents or staff including the plaintiff was lodged that it was dim and dark at the Staircase. Regarding complaints from residents, I would like to refer to the evidence of Madam Lam, the defendants’ witness, that the Staircase area was a restricted area, ie not open to anybody including the residents but only for the use of the staff of the 1^st defendant in the course of performing their duties, eg for maintenance or patrol. The defendants’ own evidence has perfectly answered their own contention regarding absence of complaints from residents who in fact were not allowed to enter the Staircase area. In spite of Madam Lam’s evidence that the residents could still see the Staircase when they entered through the cage of Whitesands, I doubt very much if any of the residents would pay attention to the lighting of a restricted area and even bother to lodge a complaint about it. Concerning complaint from staff, this Court accepted the plaintiff’s explanation why she did not make any complaints on the illumination of the Staircase since she was advised by her colleague that it would not be of any use. Also, the illumination of many other spots on her patrol route were also very dim, and hence she did not bother to make such complaints to her supervisor.

Safe system of work

27.  Apart from provision of a safe workplace, the 1^st defendant’s duty of care also involves provision of a safe system of work.

28.  The defendants contended that once the LED searchlight was provided to the plaintiff, the reasonable duty as an employer and/or occupier to ensure the plaintiff’s safety has been discharged. The case law nonetheless stated the otherwise.

29.  Lord Oaksey ruled in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 189 that:

“In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. …”

30.  As to an employer’s obligation, Lord Tucker in General Cleaning Contractors Ltd (supra) said at 195 that “to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation”. In this connection, Lord Reid expressly stated in Smith v National Coal Board [1967] 1 WLR 871 at 873H that an employer must always have in mind “not only the careful man, but also the man who is inattentive to such a degree as can normally be expected.”

31.  The plaintiff had to carry with her a list of patrol tools for the purpose of performing her patrolling duties:

(a)  A patrol stick;

(b)  A set of keys for opening doors and gates Whitesands;

(c)  A walkie-talkie;

(d)  An umbrella (on rainy days) OR a bamboo stick (on non-rainy days);

(e)  A LED searchlight during evening shifts; and

(f)  A bag of tissue papers for wiping clean the electronic tags for clocking as and when necessary.

32.  At the material times, the plaintiff also carried her own personal items in the front and back pockets of her uniform pants and they are listed hereinbelow:

(a)  Her own mobile phone;

(b)  Her wallet; and

(c)  Her house keys.

33.  Despite the defendants’ contention that the provision of the LED searchlight discharged the defendants from their respective duties, there was no evidence that instructions had been given to the plaintiff as to how to hold the LED searchlight in order that it would shine fully on the Staircase. Under such circumstance, it is not difficult to understand why the plaintiff stated in her examination-in-chief and re-examination that she could use 2 fingers to hook onto the LED searchlight and manoeuvre its direction. She has never been instructed as to how to properly use the LED searchlight, the provision of which according to the defendants has discharged their duties.

34.  At the time of the Accident, the plaintiff was carrying the patrol stick on her left hand. The defendants contended that it could have been put inside the pocket of her uniform pants, so that her left hand could be used to carry the LED searchlight properly. Then the plaintiff would have to take it out from the pocket and also put it back at least 24 times during her 40-minute patrol. Putting aside the practicability of it in the course of patrol work, again, there is no evidence and/or suggestion that the plaintiff had been instructed to put the patrol stick in her pocket while on patrolling duties so as to free her hands to hold the LED searchlight.

35.  The defendants further argued that the plaintiff could have either (a) held the umbrella and patrol stick on one hand and the LED searchlight on another; or (b) held the patrol stick and the LED searchlight on one hand and free up the other hand to hold the umbrella. Let alone the plaintiff’s evidence that she could not do so or she did not ever try so, no evidence was given by any parties in the proceedings that the defendants had given such instructions to hold the LED searchlight and/or the patrol tools.

36.  Last but not least, the defendants contended that the plaintiff should have put her personal items into a staff locker provided by the 1^st defendant. In reply to this, the plaintiff gave evidence that she felt unsafe to place her personal items in those lockers which were placed in the common room and the door of the common room was never locked. Despite the suggestion put to the plaintiff that she could or should have put her personal items in the locker provided by the 1^st defendant, no instructions was given that she had to put her personal items in the locker so as to free up her hands for the LED searchlight or the pockets for the other patrol tools.

37.  In answer to the queries concerning the absence of the 1^st defendant’s instructions mentioned in the preceding paragraphs, the defendants, adopting a broad brush approach, submitted that how the LED searchlight was to be used and carried, together with the decision as to whether and what personal belongings should or should not be brought along during her patrol was a matter of common sense and personal choice that no instructions, trainings or guidelines should be required from the defendants. (Winter v Cardiff Rural District Council [1950]1 ALL ER 819)

38.  This submission may sustain in genuinely simple operation mentioned in Winter v Cardiff Rural District Council  (supra)but not in the present case. The fact that at least 6 patrol tools are required in an evening patrol shift is, in the view of the Court, no simple operation, especially when it rains, let alone the contrary views in WhatsApp messages that 40 minutes was a bit tight for completing a round patrol of 24 patrol points. In particular, when the 1^st defendant was well aware that the concierges including the plaintiff would be carrying with them a long bamboo stick as they patrolled because there were snakes in that area. It was in fact confirmed by the evidence of Madam Lam that snake was found and killed by G4S personnel and the news of which was also posted in the staffs WhatsApp chat group. Hence, the plaintiff had to carry with her the long bamboo stick as one of the necessary tools to tap ahead while patrolling to alert snakes.

39.  I would apply the case of Chiu Man Chi v Motorola Asia Pacific Limited trading as Symbol Technologies Hong Kong Limited unreported, HCPI 150/2011, 16/3/2016, the Court considered that it is a matter of common sense for employees to be able to notice a step and walk thereon carefully. 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. However, in the present case, this court do not consider the Staircase as perfectly safe in their then illumination at the material evening.

40.  Last but definitely not least, if how one takes stairs on patrol is no simple operation for which safety guidelines are given by the 1^st defendant in the Staff Safety Handbook (員工安全手冊) for patrolling staff including the plaintiff, the Court is, by the same token, of the view that how one should use the LED searchlight on patrol and what personal items are allowed in patrol and where the patrol items should be placed also require safety guidelines in the Staff Safety Handbook.

41.  If the 1^st defendant considered it is necessary to provide the handbook of work instruction to the plaintiff for reminding her to focus and using the handrail when descending the Staircase even one may argue it would be a common sense to do in work, hence, it is reasonable to expect there should have similar work instruction for the plaintiff who must carry the LED searchlight while patrolling and how she carry and use the LED searchlight ie including to use one of hand to carry so that to adjust and focus the lighting spot exactly on the way ahead including the Staircase but not simply hand it up into her body by using the provided belt of the LED searchlight.

42.  In absence of the any instructions and/or safety guidelines regarding those concerns, the Court is of the view that the 1^st defendant has breached its duty of care as an employer to the plaintiff in failing to provide a safe system of work.

Occupier’s Liability

43.  The 1^st defendant as the contractor responsible for and carrying out management security services of the whole Whitesands is obviously an occupier of the Staircase. The 2^nd defendant as the owner of the common areas and facilities at Whitesands and the Manager of Whitesands is also obviously another occupier of the Staircase. It is not disputed that the plaintiff was at the material times an employee of the 1^st defendant performing her duties at Whitesands. It goes without saying that the plaintiff was a lawful visitor in Whitesands. Thus, the defendants owed the plaintiff a common duty of care to ensure that it was reasonably safe for the plaintiff to use the Staircase at the material time.

44.  An occupier of a staircase owed their visitors a duty of care to ensure the staircase must be sufficiently lit so that the visitor would be safe in using it. (Campbell v Shelbourne Hotel Ltd [1939] 2 KB 534; Stone v Taffe [1974] 3 All ER 1016; Schlarb v London & North Eastern Railway Co [1936] 1 All ER 71).

45.  Stephenson LJ held in Stone v Taffe [1974] 3 All ER 1016 at 1023:

“… in many cases the precise way in which an accident, particularly a fall, took place cannot be ascertained, yet, if on a balance of probabilities the fall can be explained in various possible ways but could not have happened without the breach of duty, the fall is rightly held to be the effect of the breach. Mr. Stone may have failed to grip the handrail or maintain his grip on it; he may have missed his footing, or misjudged the width or depth of a step. But he would probably not have done or omitted to do any of those things if the staircase had been lit…”

46.  The defendants, citing McAllister v Odyssey Trust Ltd and Eventsec [2013] NIQB 150, however argued that an occupier cannot be expected to be liable for every accident occurred under a dim environment. With respect, I do not think this case is applicable here. The concert hall as a workplace in McAllister was and should be expected to be dim and dark for the purpose or atmosphere of the entertainment industry there. Nevertheless, the Staircase as a workplace for the plaintiff to perform her patrolling duties in the present case is not like a concert hall. It can be and should have been illuminated sufficiently for the safety of the plaintiff as a lawful visitor performing her patrolling duties or for the safety of any of the 1^st defendant’s other staff performing their respective duties thereat.

47.  Secondly, as submitted by Ms Lau, counsel for the plaintiff, the case of McAllister should be distinguished in the present hearing since the plaintiff in that case had no idea why she fell and the most likely cause for her fall was that she mistakenly placed her foot onto the edge or over the edge and lost her balance. The court in McAllister did not accept that the arena was so dark as to make movement within it unsafe when the concert or support act was on stage.

48.  The Court accepts the plaintiff’s submission that the settings and the illumination found in the case of McAllister were very different from what was found in the present case. In the present case, there was no luminescent strips along the Staircase.

49.  In the section relating to safe place of work hereinabove, I, after detailed analysis, came to a conclusion that the illumination at the Staircase was insufficient even with the provision of the LED searchlight. In light of the same analysis which, in my view, is also applicable here, I come to the conclusion that both 1^st and 2^nd defendants as occupiers within the meaning of OLO failed to provide a safe place with sufficient illumination to the plaintiff as the lawful visitor and thereby both defendants were in breach of their occupier’s liability owed to the plaintiff in the present proceedings.

CONTRIBUTORY NEGLIGENCE

50.  The defendants’ fallback position was that the plaintiff should be found contributorily negligent in causing the Accident. It is well-established law that the burden of proving plaintiff’s contributory negligent lies with the defendant who raises the issue.

51.  Mr Chung for the defendants in both his opening and closing submissions has cited some related case authorities under this head, in particular Sulakhan Sing v Federal Securities Ltd & Another (unreported, DCPI 231/2007, 6/6/2008, para 45) and submitted that the contributory negligence on the part of the plaintiff should be in the range of 50%. On the other hand, the plaintiff argued that should it be the case that Court found contributory negligence on the part of the plaintiff, it should be around 15%.

52.  The defendants’ primary allegation against the plaintiff was on her failure to hold the LED searchlight properly in order to illuminate the Staircase and it had been dealt with in the lengthy cross-examination on how the plaintiff held the LED searchlight and projected the light onto that Staircase which I had dealt with under the safe place and system of work sections hereinabove. In this regard, when being asked she did not put the patrol stick in her pocket so as to free her hand to hold the LED searchlight, the plaintiff answered that it was troublesome as she would be required to take out the patrol stick every 2 minutes. Even without the proper instructions to the plaintiff to do the same as I found in paragraphs hereinabove, I agreed with the defendants’ case that the plaintiff failed to put the patrol stick in her pocket to save herself from trouble, instead of being unable to do the same. I accepted it was for the plaintiff’s own convenience that the plaintiff chose not to put the patrol stick in her pocket, which therefore rendered the plaintiff unable to hold the LED searchlight properly and this failure on the plaintiff’s part contributed to the Accident and her injuries as well.

53.  The defendants further averred that the plaintiff failed to hold onto the handrail during her descending the Staircase. When asked about the reason why the plaintiff did not use the handrail during the cross-examination, the plaintiff said she thought the handrail was dirty. The defendants submitted that such was simply an excuse, as it is clearly shown in the CCTV Footage that she was holding onto the handrail when she was about to fall. In any event, the defendants further submitted that the plaintiff could use a piece of tissue she had carried along for holding onto the handrail. In this regard, this Court is of the view that it is reasonable to view that when the plaintiff is going to fall, it would be spontaneous for her to hold onto anything nearby, ie the handrail on that material Staircase in order to avoid the fall and/or any physical injuries. Also, it would not have much sense to use tissue for holding the handrail on a rainy day. Further, even if the court accepts the defendants alleged way of holding the LED searchlight was proper, the Court however considers that if the plaintiff has already held the umbrella together with the patrol stick and the LED searchlight in the other hand, the plaintiff would have no free hand to hold the handrail in walking down the Staircase.

54.  After considering the plaintiff’s evidence on how she held the LED searchlight and her evidence in the cross-examination, the Court is of the view that the plaintiff has contributed to the Accident in the present case on the grounds of the following reasons:

(a)  The plaintiff should have used her hand to hold the LED searchlight properly instead of hanging it over her shoulders and manoeuvring it with only 2 fingers;

(b)  In order to properly hold the LED searchlight, the plaintiff should have put the patrol stick into one of the pockets of her trousers so that she could have freed up one of her hands to hold the LED searchlight; and

(c)  The plaintiff should not have carried with her the personal items on patrol while she well knew that there were at least 6 patrol tools she had to carry in performing the said duties.

55.  Considering that the extent of the plaintiff’s contributory negligence is less serious than that of the plaintiff in Sulakhan Singh v Federal Securities Ltd (supra), the Court assess that the plaintiff had 20% to blame in the present case.

CAUSATION

56.  In the plaintiff’s cross-examination, she said she had taken a look at the umbrella when it failed to open. In the subsequent re-examination of the plaintiff, she said that her raising of the umbrella may have blocked her line of vision. To consider the plaintiff’s evidence in relation to opening the umbrella under cross-examination and re-examination together, I am of the view that that was merely a momentary inattentiveness on the part of plaintiff and the plaintiff’s allegation regarding the cause of the Accident still consistently rested on the insufficient illumination at the Staircase on the whole.

57.  I am therefore satisfied that the Accident was caused by the negligence of the defendants.

DAMAGES

58.  The plaintiff’s claim for damages has been particularized in the Re-revised statement of damages dated 11 September 2023(“RRSOD”) which was consisted of a claim for general damage under pain, suffering and loss of amenities (“PSLA”) at $250,000; pre-trial loss of earnings and entitlement of ORSO at $822,586.56; Loss of earning capacity at $200,000; future loss of earnings and entitlement under ORSO at $307,606.21; and special damages at $28,600, making a total claim at $1,284,589.34 (excluding interest and costs).

Injuries and Medical Treatment

59.  After the Accident, the plaintiff attended the Accident & Emergency Department of North Lantau Hospital (“NLH”) at 5:58 am on 4 June 2019. Physical Examination revealed that she suffered tenderness over her right deltoid muscle with slightly reduced range of motion of her right shoulder. There was swelling and tenderness over her left midfoot. Bilateral malleolus of left ankle was non tender. Radiological examination of her right shoulder showed no fracture or dislocation and radiological examination of her left foot and ankle also revealed no fracture. She was discharged at 7:35 am on the same day with sick leave given up to 9 June 2019.

60.  After discharge, the plaintiff attended Mui Woo General Out-patient Clinic since 10 June 2019. She reported of gradual improvement of the pain over her right shoulder and left ankle. It was mechanical in nature with no rest pain. There was, however, stiffness over her right shoulder. The most painful area of the ankle was over the anterior joint line and around Achilles tendon. Physical examination of her right shoulder revealed limitation in internal rotation. Otherwise range of motion was full. There was mild tenderness over the anterior subacromial region and lateral border of her right scapula. Physical examination of her left ankle revealed no gross swelling but there was mild tenderness over the ankle joint. She was prescribed with anti-inflammatory medication as the mainstay treatment.

61.  The plaintiff was referred to the Physiotherapy Department of NLH to receive physiotherapy on 10 June 2019 for her left ankle sprain and right shoulder pain. She started the first physiotherapy on 15 July 2019 for her left ankle pain and right shoulder pain. TENS and hot therapy were prescribed. Free shoulder active mobilization exercise and cycling exercise were also given. She was also taught balance and strengthening exercises and she received a total of 10 treatment sessions by 16 September 2019.

62.  Since 16 August 2019, the plaintiff was arranged to receive treatment from Dr Kwok Hau Yan (“Dr Kwok”) by the defendants. She reported that she had persistent pain over the left ankle and right shoulder. Examination revealed that there was tenderness over her Achilles tendon, the heel area, the medial malleolus and the tip of the lateral malleolus. There was no significant ankle instability on examination. Examination of the right shoulder revealed full range of movement, some tenderness at right subacromial area and generally over the right shoulder area. There was no definite impingement sign and the function of the rotator cuff muscle was normal. X-ray taken on the day of examination revealed no definite fracture or bony abnormality over her right shoulder, left ankle, left heel and calcaneum. Dr Kwok opined that clinically, the plaintiff’s condition was compatible with sprain injury over the left ankle and contusion injury over right shoulder. She was recommended to have physiotherapy and oral medication for relief.

63.  The plaintiff re-attended on 6 September 2019 and 4 October 2019 with complaints of persistent pain over the left ankle and it was aggravated after long walking. Her right shoulder pain had improved slightly and she was able to cope with her activities. Examination revealed minimal swelling with subjective pain over the lateral ankle. There was also pain at medial and anterior ankle of a lesser degree. There was no significant pain over the right shoulder at the time with good range of movement and slight decrease in internal rotation range. Dr Kwok noted from one of the medical notes of the general out-patient clinic that the plaintiff had a suspicious avulsion minor fracture at the dorsal aspect of her left navicular bone during x-ray on 29 July 2019 but that was not obvious in the x-ray taken at his clinic. MRI examination of her left ankle was thus arranged.

64.  The MRI examination of her left ankle took place on 23 October 2019 and it showed some minor effusion at the subtalar and ankle joint with evidence of some tendinitis at peroneus longus and tibialis posterior tendon. There was no evidence of ligament rupture at the MRI.

65.  When the plaintiff attended the follow-up on 1 November 2019, she reported of persistent pain over her left ankle and she was unable to cope with her usual duties. She was still receiving physiotherapy though the progress was static. She reported of improvement over her right shoulder though there was still pain on movement with slight limited internal rotation range. The plaintiff was recommended to change her duty which would be less demanding for her left ankle. The plaintiff did not attend further assessment at Dr Kwok’s clinic since then.

66.  The plaintiff was referred by Dr Kwok to receive physiotherapy for her injuries. She attended Prime Rehabilitation Services on 20 September 2019. She complained about left lateral ankle pain, increased pain when walking for about 10 minutes or when standing for about 15 minutes. She complained about right anterior shoulder pain increased when she performed hand behind back motion. The plaintiff received 18 sessions of treatment between 20 September 2019 and 18 December 2019. Treatment prescribed included ultrasound therapy, interferential therapy, mobilization exercises and self-stretching and strengthening exercises. Objectively, the range of movement of her ankle and shoulder had improved initially. However, the improvement became static after a long period of physiotherapy, ie during the last four sessions of treatment. She was thus discharged with home exercises and neck and back care education.

67.  The plaintiff was again referred to receive physiotherapy at the Physiotherapy Department of NLH on 29 November 2019 by Mui Woo Clinic of NLTH for her right shoulder and left ankle pain. She started this second course of physiotherapy on 8 July 2020 and she complained about left ankle pain and right shoulder pain. TENS and hot therapy for her left ankle and right shoulder was given. Ultrasound therapy to her right shoulder was also given for pain relief.

68.  The plaintiff was examined by Dr Wilkie Ngai (“Dr Ngai”) on 6 January 2020, which was arranged by Total Rehabilitation Management. The plaintiff went alone and examination revealed that she could walk independently in normal gait; able to do standing and walking on tiptoes; able to stand and walk on heels and was able to do unilateral standing with fair stability on the left side. She was also able to do full squatting.

69.  Examination of her left foot revealed diffuse tenderness over left ankle including anterolateral aspect, medial aspect and posterior aspect to the Achilles tendon. There was also diffuse tenderness over left foot dorsum. There was no neurovascular deficit. Her right shoulder revealed no muscle wasting but there was diffuse tenderness over anterolateral aspect and posterior scapular region. There was no instability and there was no impingement sign.

70.  Radiological examination of her left ankle revealed that the bony alignment was unremarkable. There was no fracture or dislocation seen and there was tiny calcification or ossification seen over the dorsal aspect of navicular. There was no abnormal soft tissue swelling seen. X-ray of her right shoulder showed that her bony alignment was unremarkable with no fracture or dislocation seen. There was no abnormal soft tissue swelling either.

71.  When the plaintiff attended her follow-up at the Mui Woo General Out-patient Clinic on 10 July 2020, she reported of right shoulder pain having improved by 50% though she still had shoulder stiffness. Her left ankle pain had improved by 60% and she could walk on even surface for 15-20 minutes.

72.  The plaintiff was referred by Mui Wo General Out-patient Clinic to attend the Occupational Therapy Department of NLH for pain management program and work assessment, hardening and rehabilitation program on 11 December 2020. The plaintiff started the treatment since 31 December 2020. Intervention included functional rehabilitation training, work capacity evaluation, work rehabilitation and education on home program were provided. After having received training for about 6 months, the plaintiff showed some improvement in her condition though she still suffered residual pain over her left ankle during exertion. She was considered as being only marginally matched with her pre-accident job demands. The plaintiff expressed that she could negotiate with her employer for modified duties. If failed, she was advised to consider job change.

73.  The plaintiff was granted sick leave continuously from 4 July 2019 to 23 August 2021. She attended the Employees’ Compensation (Ordinary Assessment) Board on 29 May 2020 and was assessed to have suffered 4.5% of loss of earning capacity as a result of the sprain injuries to her left ankle and right shoulder sustained in the Accident. She was given intermittent sick leave between 12 April 2023 and 7 September 2023 because of her residual left ankle pain after she resumed work.

Joint Medical Examination & Joint Orthopaedic Expert Report

74.  The plaintiff was jointly examined by Dr Fu Wai Kee (“Dr Fu”), expert for the plaintiff and Dr Peter Ko Put Shui (“Dr Ko”), expert for the defendants on 30 March 2021. A Joint Orthopaedic Expert Report dated 6 July 2021 (“JOER”) was adduced as evidence without calling the experts. In the JOER, both experts noted the following complaints of the plaintiff at the time of the joint examination:-

(1)  Right shoulder pain and stiffness: on and off right shoulder pain. It was aggravated by movement especially during elevation and extension of shoulder. She could not lift more that 1-2 catties. She also complained of right shoulder stiffness;

(2)  Right upper limb numbness: numbness from the ulnar aspect of the hand to the medical ar. This first appeared 3 months after Accident and was continuous. It was aggravated by shoulder elevation, extension of the shoulder and lifting weight. She could just use chopsticks to finish a meal. She could only write one page and then needed to rest; and

(3)  Left ankle pain: intermittent pain in the medial and lateral ankle with similar severity. It was aggravated by walking for over half an hour, lifting weight, exertion, during occupational therapy when she was stepping on a slanted board, trampoline training, squatting and stair walking. She could at most walk 5 flights of stairs and then she needed to rest. She had not tried running.

75.  The joint examination revealed that the plaintiff walked with normal gait without walking aids. She sat for 25-30 minutes without distress. She could get up from interview chair normally without support. Right single-leg standing was stable while her left single-leg standing was less stable. There was mild unsteadiness in her tip toe standing and heel walking. She could perform full squat with right hand gentle support. Examination of her upper limbs revealed similar and normal shoulder musculature. On palpation, there was tenderness in the right anterior shoulder AC joint, posterior shoulder and maximal at the AC joint. Examination of her lower limbs revealed diffuse tenderness in the left peri-lateral and peri-medial malleolar region of her left ankle. There was no swelling.

76.  Radiological examination of her left ankle showed that the ankle joint alignment was normal, there was no fracture seen. The small bony fragment in navicular shown in previous x-ray has disappeared and bone density was normal. X-ray of her left foot showed normal joint alignment. There was no fracture seen. There was hallux valgus in both feet and the bone density was normal. X-ray of her right shoulder revealed normal alignment with bony lesion. Bone density was normal.

Experts Opinion in JOER

77.  In the JOER, Dr Fu opined that the plaintiff suffered soft tissue injury of right shoulder. For the left ankle, she should have suffered a small chip fracture of the navicular and that fragment appeared in both the x-ray of her left ankle taken on 4 June 2019 and 29 July 2019. It should not be an artifact. Most small chip fracture would later resorbed so it disappeared on subsequent x-ray and MRI. There is no evidence of pre-existing pathology.

78.  Dr Ko was of the view that the plaintiff suffered minor soft tissues injury to her right shoulder and left ankle in the Accident. There is no pre-existing condition. Dr Ko did not think the plaintiff suffered any avulsion fracture to the navicular as the GOPC consultation notes on 14 June 2019 did not record the same. Subsequent MRI scan did not show any residues of avulsion fracture either.

79.  Dr Fu considered the plaintiff’s condition is static and her current impairment would persist. She would have on and off attack of pain in her right shoulder and left ankle that would require treatment on a need to basis. She would also have difficulty in overhead activities or performing manual duties by her right upper limb.

80.  Dr Ko, on the other hand, considered the plaintiff as having exaggerated her condition and symptoms. He regarded the plaintiff’s complaints of persistent pain and difficulty with lifting weight, weight bearing and walking were completely out of proportion to the magnitude of injury she sustained. He considered the uncomplicated soft tissue injury to the right shoulder and left ankle should carry excellent prognosis.

81.  Dr Fu opined that the sick leave issued by her treating doctors who assessed her regularly should be appropriate for her condition. Dr Ko considered sick leave of about 5-6 months should have been adequate and acceptable.

82.  Dr Fu believed the plaintiff should be able to resume her work as an assistant concierge and her working efficiency would be decreased due to the left ankle and right shoulder impairment. She would have some difficulty in long period of patrolling and performing manual duties. Dr Ko considered the plaintiff should be able to resume her pre-accident job at her full capacity without any significant impairment of her work efficiency and effectiveness by around 6 months after the Accident.

The Plaintiff’s underperformance and/or exaggerations

83.  Dr Ko opined that the plaintiff was exaggerating her symptoms during the joint examination, and made the following comments/analysis against the objective medical evidence:-

(1)  When the plaintiff attended Dr Kwok HY on 16 August 2019, the features indicated the plaintiff to have an uncomplicated minor soft tissue injury to right shoulder and left ankle, including the lack of significant swelling over left ankle; tenderness only over the Achilles tendon, heel area, medial malleolus and tip of lateral malleolus; lack of significant ankle disability; full range of movement over right shoulder; some tenderness at right subarcrmial area and generally over shoulder area; absence of definite impingement sign; and normal function of rotator cuff muscle.

(2)  Essentially normal findings over the plaintiff’s right shoulder and left ankle were then found at subsequent follow-ups in September and October 2019, including the MRI done over her left ankle in October 2019. The plaintiff was assessed to have reached static progress and was referred to the Medical Assessment Board in November 2019.

(3)  In mid-September 2019, the plaintiff was discharged from physiotherapy in NLH after 10 sessions of treatment.

(4)  In December 2019, the plaintiff was assessed to have reached more or less stable and static condition by Prime Rehabilitation Services after completing 18 sessions of treatment.

(5)  The reported extreme weakness in plaintiff’s right upper limb during the joint examination was not supported by objective medical findings. If such were true, there should have been detectable and measurable muscle wasting involving the right shoulder girdle, but plaintiff was found to have good shoulder girdle muscle on both sides with similar muscle girth in the arms and forearms during the joint examination.

(6)  The plaintiff’s reported intermittent left ankle pain with difficulty in lifting weight, weight bearing and walking were completely out of proportion to the magnitude of injury that she sustained, in particular in light of the normal findings of her left ankle MRI as early as in October 2019.

(7)  Similarly, if the plaintiff indeed had such degree of limitation and impairment of her left lower limb function, detectable muscle wasting should be present in her thigh and calf girths, but no such abnormality or discrepancy was found.

(8)  During the joint examination, the plaintiff further complained of right medial upper limb numbness that appeared about 3 months after the Accident, yet Dr Ko noted that she had not reported such symptoms or signs for more than 1 to 1.5 years of medical treating reports.

84.  Apart from his analysis against the objective medical evidence, Dr Ko further spotted other features of exaggerations and magnifications during the joint examination and opined as follows:-

(a)  The plaintiff could walk with normal gait without walking aids, but she showed less stability in single-leg standing on left side.

(b)  The plaintiff reported grade 4 motor power on her right shoulder but it was not consistent with the absence of muscle wasting in her shoulder girdle or upper limbs.

(c)  The plaintiff reported decrease in sensation in a wide distribution manner in the right upper limb but it had never been previously recorded or documented, and they did not have any anatomic, pathological or organic relationship with the plaintiff’s uncomplicated minor soft tissue sprain to her right shoulder.

(d)  The plaintiff was unable to demonstrate the neutral position of active dorsiflexion movement but only at 10 degrees of plantar-flexion. If it was truly the case, the plaintiff would not be able to walk or stand with a normal plantigrade foot.

(e)  The plaintiff could demonstrate a full squat, which required good and normal dorsiflexion of left ankle.

(f)  Without evidence of any ligament injury or any significant bony or soft tissue injury to left ankle, there no anatomic, pathological or organic explanation as to why the plaintiff had no inversion or eversion. The plaintiff was even exerting voluntary effort in resisting the motion.

(g)  Similarly, when the plaintiff was demonstrating grade 4 weakness over her left ankle and big toe, there was no measurable objective discrepancy in the left and right lower limb muscle girths.

(h)  In the premises, without any objective abnormality in the medical treating evidence and the joint examination, Dr Ko opined that the plaintiff’s uncomplicated soft tissue injury to right shoulder and left ankle should carry excellent prognosis.

85.  Confronted with the contrast between her own evidence and Dr Kwok’s assessment on her right shoulder ROM, the plaintiff sought to explain in her re-examination that she had indeed reported pain to doctors and/or therapists. In this regard, I do agree with the defendants’ submission that the crust was how much the plaintiff could move her shoulder. Having pain per se would not be a perfect explanation for the said contrast of movement of the shoulder.

Contrast between Plaintiff’s complaints and Medical Evidence

86.  It is important to note that in March 2021, the plaintiff demonstrated to the experts that her inversion and eversion of left ankle had to be kept at 0 degrees during the joint examination. This demonstration was nonetheless in marked contrast with her presentation to other doctors/medical practitioners earlier on.

87.  In mid-December 2019, the physiotherapist of Prime Rehabilitation services found the plaintiff’s left ankle inversion ROM to have attained 2/3 of normal, though with pain; and eversion ROM to be full, with no pain.

88.  And in January 2020, ie more than 1 year prior to the joint examination, Dr Ngai recorded that the plaintiff’s inversion and eversion ROM had already been full.

89.  Dr Ngai’s record on other aspects of the plaintiff’s examination in January 2020 also varied quite significantly from what the plaintiff demonstrated during the joint examination in March 2021:-

Dr Ngai	JOER
Able to do unilateral standing with fair stability on left side	L single leg standing: less stable
Able to do standing and walking on tiptoes	Tip toe standing: mild unsteadiness
Able to do full squatting	Can perform full squat with right hand gentle support
Ankle Dorsiflexion: 0 (active) and -10 degree (passive)	-10 degree (only can achieve plantar flexion 10 degree on asking her to do dorsiflexion)

90.  Further, surprisingly, the plaintiff’s ankle ROM as demonstrated to the experts during joint examination was in immense contrast when compared with the result of the Work Rehabilitation Assessment of Occupational Therapist in early March 2021, ie just a few weeks before the joint examination. It was recorded in the said assessment that:-

“Range of Motion	AROM of right shoulder FF and abduction 160
	IR and ER: nearly full range
	AROM of left ankle full range
	Able to perform full squat”

91.  Last but not least under this head, it perhaps is helpful to consider the plaintiff’s subjective complaints in the light of the related medical evidence/findings by different medical practitioners chronologically:-

Date	Ref	Remarks
14/6/2019	Medical Notes & records from NLH	No swelling Gait limping
26/6/2019	ditto	Gait normal
23/7/2019	ditto	Gradually improving, now about improve 70%   Gait normal now   Right shoulder: no deformity, ROM IR limited, other ROM full   Left ankle: no swelling, mild tender at medial of foot
31/7/2019	ditto	Right shoulder: no deformity, ROM IR limited, other ROM full   Mild tenderness at anterior subacromial region, lateral border of R scapula   Left ankle: no gross swelling, mild tenderness of the ankle joint
5/8/2019	ditto	Similar to 31/7/2019
9/8/2019	ditto	Similar to 31/7/2019
13/8/2019	ditto	Similar to 31/7/2019
16/8/2019	Medical Report by Dr Kwok	Dr Kwok’s report:   Plaintiff’s subjective complaints:   -  Persistent pain over L ankle and R shoulder   -  Noticed pain over the back   -  L ankle pain provoked after 10 min of walking   -  Unable to climb stairs because of pain   -  L ankle no rest pain   -  R shoulder pain provoked by movement, and when she laid on the right side   -  Claimed her sleep was slightly disturbed by pain   Physical examination:-   -  No significant swelling over L ankle   -  Tenderness over Achilles tendon, heel area, medial malleolus   -  No significant ankle instability   -  R shoulder full ROM, some tenderness at R subacromial area, and generally over the shoulder area   -  No definite impingement sign, and function of rotator cuff normal
6/9/2019	Ditto	Minimal swelling of L ankle   Pain at medial and anterior ankle of a lesser degree   No significant pain over [R] shoulder with good range of movement and slight decrease in IR range   XR again but found the previous suspected avulsion fracture not obvious on film
4/10/2019	Ditto	ditto
23/10/2019	MRI Report by Dr Lam Cheong of iPad Medical Diagnostic	MRI left ankle   -  Trace amount of anterior tibiotalar and posterior subtalar joint effusion   -  No ligament or tendon tear   -  Thin rims of fluid seen around peroneus longus and posterior tibialis tendons suggestive of mild tenosynovitis   -  Mild oedema at Kagar pre-Achilles fat pad   -  No finding of any fracture bony lesion
23/10/2019	Dr Kwok’s Report	Dr Kwok found no rupture of ligament
1/11/2019	Ditto	Dr Kwok opined P to have reached static status
18/12/2019	Ditto	Plaintiff was considered static and was discharged from physiotherapy

92.  In relation to the above-mentioned Dr Ko’s analysis and comments on the plaintiff’s subjective complaints and presented conditions in the JOER, there was no comments and/or replies from the plaintiff’s expert Dr Fu in response to the same.

93.  Having said that, I would like to refer to Gurung Kamala v Hong Wei Limited (unreported, DCPI 1660/2010, 26/3/2012). The plaintiff’s own expert Dr Wong has even stated in the Agreed Joint Medical Reported that the plaintiff “did show certain degree of over expression of symptoms and signs”, Dr Wong still “believed” that the plaintiff did have genuine pain and tenderness, stating that this was consistently documented by various medical officers and therapists throughout her course of therapy. The court in this regard explained as follows in the judgment:-

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

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

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

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

94.  Indeed, this Court, due to the chance to review all evidence and to hear the defendants’ Counsel’s “testing” the plaintiff’s evidence in the present proceedings, is in a better position to assess the truthfulness of the plaintiff’s subjective medical history. In the premises, I am of the view that the plaintiff has exaggerated her symptoms to her medical doctors and/or practitioner and the experts.

Surveillance Evidence

95.  In order to show that the plaintiff has exaggerated her medical conditions, the defendants commissioned 2 rounds of surveillance on the plaintiff, one from December 2019 to January 2020, and the other from March 2022 to April 2022. At trial, the videos of the said 2 rounds of surveillance was produced and the plaintiff was confronted with it during the defendants’ lengthy cross-examination on different dates and different time slots. Hereinbelow are information extracted from the videos, the plaintiff’s witness statement and answers in cross-examination:

(A)  Walking tolerance

(i)  As displayed in surveillance video footage 13/12/2019, the plaintiff was seen to have been walking and standing from 16:15:25 until she boarded a bus at 17:30:54. Throughout the entire period, there was no sign of pain or discomfort.

(ii)  The plaintiff sought to explain in her witness statement that she took a break in the library. And she was walking on the street again at 16:31:10.

(iii)  After taking a break in the library, she was walking and standing on the street for a whole hour.

(iv)  On cross-examination, the plaintiff contended she went into Hang Seng Bank (entrance time 16:37:11, then walking on the street again afterwards at 16:53:49).

(v)  In the plaintiff’s witness statement, there was specific explanation regarding her break in the library but no reference of taking a break in Hang Seng Bank, let alone an explanation concerning it.

(vi)  In respect of absence of reference of her break in the Hang Seng Bank, the plaintiff was said under cross-examination, that she did told her solicitors about the Hang Seng bank break.

(vii)  After taking a break in the Hang Seng Bank, the plaintiff wandered around the vicinity, visited Hong Kong Jockey Club betting station, shops, another bank, etc until subsequently she started waiting for bus and boarded one. This journey took about 25-30 minutes. This period of walking is in stark contrast with her description of walking tolerance to:

-  Physiotherapist of Prime Rehabilitation Services – Plaintiff had since the commencement of physiotherapy at Prime Rehabilitation Services complaining about having left lateral ankle pain, and increased pain when walking for around 10 minutes, or when standing for 15 minutes (20/9/2019).

-  On 18/12/2019, the plaintiff “complained about left lateral ankle pain, increased pain at her left lateral ankle when walking for around 10 minutes...” Notably this attendance took place just a few days after the surveillance taken on 13/12/2019. On evidence, the plaintiff’s walking tolerance has deteriorated suddenly and drastically within a few days, in particular that the plaintiff was being considered as having attained static condition by physiotherapist since 18/12/2019.

-  Mui Wo Clinic - on 20/12/2019, the plaintiff was still complaining about being able to walk on flat ground for only 20 minutes. The plaintiff also continued to make similar complaints in her subsequent follow-ups.

(B)  Stairs ability

(i)  The plaintiff on multiple occasions demonstrated that she had no difficulty with ascending and descending staircase:

(1)  On 13/12/2019, the plaintiff was able to descend a long flight of staircases in Hong Kong Jockey Club betting station. The plaintiff did not need to hold onto handrail and her pace was brisk.

(2)  On 6/1/2020, the plaintiff was able to ascend a long flight of staircases without holding onto the handrail.

(3)  On 25/3/2022, the plaintiff was able to descend a long flight of staircases without the need to hold onto handrail.

(4)  On 8/4/2022, the plaintiff was ascending 3 steps of staircases, but with a little bit of hopping. In any event, her pace was brisk.

(5)  All these showed that the plaintiff did not have much difficulty with stairs since late 2019 (at least no need to hold the handrail).

(C)  Slope ability

-  On 9/3/2022 and 25/3/2022, the plaintiff walked up a slope outside NLH. She had no problem with walking up-slope and there was neither any sign of pain or discomfort. Also, after walking up the slope, the plaintiff needed not any break to continue walking further afterwards.

(D)  Boarding/Alighting Bus

(i)  On 13/12/2019, the plaintiff was able to board a bus without holding onto the handrail of the bus. And, on 3/1/2020, the plaintiff was able to alight a bus with her left lower limb again without holding onto the handrail of the bus.

(ii)  On these, the plaintiff explained in the cross examination that she used her left leg to board the bus first to avoid sudden weakness or give way of her left leg, so that she could immediately hold onto the handrail on her left, and used her uninjured right leg as support. Otherwise she would fall backwards.

(iii)  During her re-examination, she sought to explain that she shifted her weight bearing to her right leg whilst waiting for the bus, because she would try to avoid using the left leg as much as possible to avoid further injuries.

(E)  Left Ankle ROM

-  On 13/12/2019, while the plaintiff was walking in a shopping mall, she stopped and took a U-turn. Whilst doing so she used her left leg as the axis when turning her body. In doing this, her left ankle ROM (in term of eversion) should not have been as bad as she demonstrated to the experts who wrote down 10 degrees with the remarks of “resisted motion” in the JOER.

96.  Regarding her going out to various places, including library, bank and even Jockey Club betting station, without difficulties, the plaintiff’s counsel Ms Lau gave an explanation that walking on the street (行街) was different from performing the patrolling duties. This Court utterly disagree to it. At the time when shes was under surveillance, she was on sick leave and thus should be resting herself at home except attending treatment or consultation, in particular that her main complaint was her ankle which according to the plaintiff’s case has been adversely affecting her ability to walk to the extent that she had to claim a long sick leave of more than 2 years.

97.  Concerning her ability to board and alight buses, the plaintiff explained that she used her left leg to board the bus first to avoid sudden weakness or give way of her left leg, so that she could immediately hold onto the handrail on her left and used her uninjured right leg as support. This explanation sounds a bit weird when one can simply hold onto the handrail when boarding and alighting the vehicle. Moreover, if she was so worried about sudden weakness or give way of left lower limb, it is beyond understanding that she would alight the bus by putting her left foot on the ground first, especially without holding onto handrail. How could the injured and weak left leg bear the plaintiff’s body weight, not to mention her belongings on her body while alighting. The only explanation was that the plaintiff did not have problem with using her left leg in an ordinary way.

98.  By the same token, it shows clearly in the surveillance video footage that the plaintiff was able to ascend and descend staircases with not much or even no difficulty, just like her manner of boarding and alighting buses.

99.  Upon considering the surveillance evidence and the plaintiff’s explanation on it, it is obvious to this Court that the plaintiff was not a credible witness and she has exaggerated her physical conditions, in particular her left lower limb. Needless to say, the plaintiff’s being not credible must have significant bearing on the plaintiff’s case in particular the quantum on PSLA and Pre-trial loss of earning.

PAIN, SUFFERING AND LOSS OF AMENITIES

100.  The plaintiff pleaded for a sum of $250,000 as general damages payable for the soft tissue injuries she sustained to her right shoulder and to her left ankle. On the other hand, the defendants submitted that PSLA should be no more than $180,000.

101.  Up till now, the plaintiff still has the complaints which include: (i) intermittent right shoulder pain and stiffness; (ii) intermittent right upper limb numbness; (iii) intermittent left lower limb spasm; (iv) intermittent pain at left ankle, aggravated during bad weather and when walking on inclined surface or stairs and after prolonged walking; (v) intermittent left ankle numbness when squatting; (vi) unable to run and jump; (vii) unable to lift heavy weight; and (viii) intermittent insomnia due to right shoulder pain and left ankle pain.

102.  Dr Ko opined in JOER that the plaintiff’s injuries were minor soft tissue injury on right shoulder, and minor soft tissue injury on left ankle. Dr Fu also agreed that the plaintiff suffered from minor soft tissue injury on her right shoulder. On the plaintiff’s left ankle, despite his opinion that the plaintiff suffered a small chip fracture of the navicular, Dr Fu offered no comments on Dr Ko’s analysis and comments querying this fracture and its effects on the plaintiff and even opined that such kind of small chip fracture was usually treated as soft tissue injury anyway.

103.  Apart from the medical evidence and opinions on the plaintiff’s injuries, the defendants also submitted to this Court evidence concerning the plaintiff’s under-performance and exaggeration on her reactions during medical consultations as well as surveillance evidence of the plaintiff’s daily life. Although the plaintiff submitted that one must not overlook the fact that the plaintiff was still having occupational therapy training at the time, this Court, as indicated hereinabove, must say that the defendant’s evidence has undermining effects on the plaintiff’s claim on PSLA.

104.  Under this head, both parties have referred this court to relevant case authorities in supporting their figures. After considering the case authorities referred by the parties, I found the following cases are more applicable in the present proceedings:

(i)  Huang Xinsheng v SCS HK Logistics Limited and another, (DCPI 942/2018, Deputy District Judge Jason Wong, 7/102022)

The plaintiff suffered dislocation of the right shoulder and contusion injury to his left ankle. Close reduction to his right shoulder was performed and he wore an arm sling for four weeks. He suffered reduced range of movement in the right shoulder, right shoulder pain and stiffness, pain over right little finger, left heel. The Court accepted that the pre-existing degenerative changes suffered by the plaintiff had not significantly affected him and he had a satisfactory function in his right shoulder. There was no abnormality in his left heel and he had a good recovery of his right little finger too. The Court awarded a sum of $220,000 as PSLA.

(ii)  Limbu Dharamaraj v ISS Adams Secuforce Ltd and another, DCPI 1568/2011, Deputy District Judge Tracy Chan, 19/12/2012

The plaintiff suffered shoulder sprain to his right shoulder in the accident with soft tissue injury and had recovered well. He also suffered some minor back pain. The right ankle injury had also recovered with no detectable collateral laxity and ankle movement was satisfactory. There was no significant structural damage found either. The Court awarded a sum of $120,000 as general damages.

(iii)  Liu Weiguang v Li Keng Ko and another, DCPI 2723/2018, HH Judge Phoebe Man, 14/1/2020

The plaintiff fell from height and sustained abrasion on his right medial leg, medial left thigh, fracture of the left distal fibula and he also developed mild psychiatric symptoms including nightmares and flashback as a result of the accident. The ankle fracture was healed conservatively and did not require any surgical intervention. His other orthopaedic injuries had largely been cured with little residual symptoms. The remaining psychiatric symptoms were mild and the Court awarded him a sum of $250,000 as general damages.

(iv)  Chan Leung Sing v Ng Keung and another, HCPI3/2012, Mr Recorder Paul Shieh SC, 27/8/2015

The plaintiff suffered multiple soft tissue injuries to the right knee, right ankle and low back. The injury to his low back was mild and had achieved satisfactory recovery. He complained about discomfort over the right shoulder but the injury was likely to be mild and he had achieved satisfactory recovery. The Court awarded him a sum of $150,000 as general damages.

105.  This Court, on one hand, has to consider the plaintiff’s present complaints and her medical history for the present injuries and on the other hand, has, in light of above-mentioned evidence on the plaintiff’s underperformance and exaggeration and surveillance evidence, also been minded that the plaintiff has been exaggerating her symptoms to the medical doctors and practitioners. Comparing the relevant case authorities referred to this Court, I find that plaintiff’s conditions are very much similar to the plaintiff in Huang Xinsheng (supra) but are less serious than the plaintiff in Liu Wiguang case (supra) who had similar injuries and recovery but with mild psychiatric symptoms, the Court is of the view that in the present case a sum of $200,000 would be appropriate under this head of PSLA for the plaintiff.

Pre-Trial Loss of Earnings

106.  At the time of the Accident, the plaintiff was working as an Assistant Concierge with the 1^st defendant. Her average monthly earning was about $16,891.87 as agreed. She opted for the ORSO scheme under her employment contract and her entitlement under the scheme was calculated by multiplying the final monthly salary by eligible services years and by a factor.

107.  The plaintiff gave evidence that she tried to resume work with 1^st defendant after her sick leave expired in August 2021 but the work position offered by the 1^st defendant, namely an assistant concierge in a residential estate in Seymour Road, was beyond her then physical capacity because it required her to patrol along 40-storey building on staircases every day. She was not able to take up this job and therefore resigned on 18 August 2021. The plaintiff then tried to resume work with different companies and earned $195,636.84 in total. At present, she is working for F H Security Services Co Ltd and Tung Wah Group of Hospitals on a need-to basis.

108.  But for the Accident, it is the plaintiff’s case that she would probably have continued to work for the 1^st defendant and also been entitled to an increment of around 2.5% (which was the increment given by the 1^st defendant for 2020) in her salary. Apart from the above, she would also have received entitlement under ORSO.

Sick Leave Certificate

109.  The plaintiff was granted sick leave on a continuous basis for more than 2 years from 4 June 2019 to 23 August 2021. Dr Fu opined that the sick leave issued by her treating doctors who assessed her regularly should be appropriate for her condition.

110.  On the contrary, Dr Ko was of the view that the plaintiff suffered minor soft tissues injury to her right shoulder and left ankle in the Accident. He considered the uncomplicated soft tissue injury to the right shoulder and left ankle after all the treatments and therapies given should carry excellent prognosis. Dr Ko considered sick leave of about 5-6 months should have been adequate and acceptable.

111.  The defendants contended the length of the plaintiff’s sick leave by referring to objective medical evidence:

(i)  According to Dr Kwok’s report, the plaintiff’s condition should have attained static by the latest 1 November 2019;

(ii)  The plaintiff’s case was referred to Medical Assessment Board for assessment in November 2019. It was an obvious indication that the plaintiff’s injury should have become static by then; and

(iii)  The plaintiff was discharged from physiotherapy at Prime Rehabilitation Service due to static progress on 18 December 2019.

112.  Based on the above objective medical evidence and Dr Ko’s recommendation, the defendants contended that the reasonable sick leave period for the plaintiff should not be more than 6 months.

113.  Dr Ko further explained in JOER that the initial medical treating reports from A&E Department of NLH as well as Mui Wo General Out-patient Clinic documented features consistent and compatible with soft tissue injury to right shoulder and left ankle. Dr Fu agreed that the right shoulder injury was of soft tissue only, but for the left ankle, he opined that there should be a small chip fracture, ie the avulsion fracture of navicular.

114.  Concerning this suspected avulsion fracture of navicular, Dr Ko however opined that it was obviously incorrect as it would have been impossible for the plaintiff not to have any localized tenderness over that region. It was also practically and medically almost impossible for her to have avulsion fracture at navicular yet when she attended the general out-patient clinic on 14 June 2019, she had no swelling but only tenderness at the medial and lateral upper foot region.

115.  Further, no further suspicious lesion or abnormality were found over x-ray and MRI taken over the plaintiff’s left foot and ankle from 14 June 2019 onwards. If the plaintiff indeed had a fresh injury of avulsion fracture to the navicular, it would be medically and practically impossible that no even a trace would be found.

116.  Regarding Dr Ko’s analysis and comments hereinabove, Dr Fu did not provide any counter-explanation to the same, in particular that the objective features of absence of trace of chip fracture at the navicular, and also that it most likely may have been resorbed so it disappeared in subsequent x-ray and MRI. In any event, Dr Fu did opine that such kind of small chip fracture was usually treated as soft tissue injury anyway.

117.  Hence, this court accepts the defendants’ submission that such small chip fracture (if any) should not be considered any more severe than a soft injury to the left ankle. Such a small chip fracture would not be taken as significant or have much impact on the plaintiff’s claim on not only her justification to have a sick leave period of slightly more than 2 years and also the PSLA which have been discussed hereinabove. (see para 26 in Ale Thak Prasad v Tsang Chin Keung & Another (unreported, HCPI 579/2012, 29 December 2017)).

118.  In term of treatment, Dr Ko opined that conservative treatment up to about 5 to 6 months should have been adequate and acceptable and the plaintiff would not be benefit from any further treatment, investigation and rehabilitation. Hence, in spite of the plaintiff’s production of sick leave certificates for the period of 2 years, the defendants submitted that the plaintiff was only entitled to a sick leave of 6 months only.

119.  Regarding how one may treat the sick leave certificates issued by doctors, the judgment in Li Cheuk Lam v Cheung Sun Tai & Others (unreported, HCPI 1102/2015, 13/10/2017) provides an insightful observation that:-

“11. …the plaintiff was given variable lengths of sick leaves after each consultation but he always attended for medical treatment the day that the previous sick leave ran out. …

13. Instead, I would expect any reasonable patient with persistent pain would return to the doctor very promptly if the treatment did not help. He would likely request stronger medications, further investigations or even referral to a specialist.

14. If a patient chooses to passively take the same medications (despite the obvious failure of such medications to cure the persistent pain) and sit out until the last day of every sick leave period, this rather suggests that the patient is more concerned in obtaining continuous sick leave than about curing any alleged complaints.”

120.  Also, this Court found the judgment in Gurung Kamala (supra) relevant and helpful in our discussion:-

“82. The same argument applies for Sick Leave certificates. In Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, it was held that “Sick leave certificates are no more than a piece of evidence that has to be evaluated in light of all the available evidence including medical evidence before the court.”

83. The court therefore does not agree that previous consistent medical documentation of complaints of a patient should, by itself, necessarily supports that the complaints were genuine and organic. If a patient has been exaggerating the symptoms, he/she can certainly do so in a consistent manner.

84. In other words, just like sick leave certificates, a doctor’s record of a patient’s subjective complaints is also no more than a piece of evidence that has to be evaluated in light of all the available evidence before the court.”

121.  Applying Gurung Kamala (supra), this Court would treat the plaintiff’s sick leave certificates of 2 years as no more than a piece of evidence that has to be evaluated in light of all the available evidence including medical evidence before the court. It is obvious that the objective medical evidence in this case as mentioned in the above do not support a sick leave period as long as 2 years, not to mention the opinions and/or comments of Dr Ko.

122.  In light of the surveillance evidence and medical evidence mentioned hereinabove, the defendants invited this court Dr Ko’s opinion of 6 months sick leave for the plaintiff’s injuries should be accepted by this Court. In particular, if further considered the Agreed Schedule of Medical Certificate (except one occasion on 10/5/2021) for the total sick leave period of over 2 years, the plaintiff would only consult doctor to obtain sick leave on the day of or after the expiry of sick leave.

123.  In this regard, this Court found it relevant to consider Gurung Kamala (supra):-

“90. One further evidence of inappropriate illness behaviour is that the record of AED re-attendance by the plaintiff. The medical report and records show that the plaintiff has re-attend AED on each occasion on the morning when her sick leave certificate was running out.

91. Logically, one expects that a patient who is keen to get better and to return to work will return to seek medical help as quickly as possible once he/she realizes that the medications are not helping the illness and he/she is not getting better. One might even expect the patient to demand a change of medications (“They don’t work, doctor, give me something stronger!”), more investigations (“It is still painful, I want a scan!”), a referral to a specialist, or even question the doctor whether the diagnosis was correct. If, instead, the patient chooses to wait out the period of sick leave in full before returning to an Accident and Emergency Department, there is at least some suspicion that this consultation is less for seeking an emergency consultation but more fore seeking an extension of sick leave.

92. When the plaintiff was asked as to why she re-attended AED, she was adamant that this was because of increased pain on the morning or the night before on each occasion.

93. It would therefore appear that the plaintiff suffered a worsening of her illness at precisely the time the sick leave would run out on each of the 4 occasions when she re-attended AED.

94. Such a coincidence was possible but inherently unlikely.”

124.  In fact, the plaintiff sought to explain under cross-examination, that she had indeed enquired from doctors about other means of treatment. However, her explanation was not recorded in any of the medical documents at all.

125.  Besides, the defendants has addressed this Court from the medical documents that the plaintiff’s condition had all along remained more or less the same for the medical reasons in the extension of her sick leave from 29/11/2019 to 30/5/2020. The defendants therefore maintain its stance that reasonable sick leave should be no more than 6 months as opined by Dr Ko in the JOER with the support by contemporaneous treating documents.

126.  After examining the mentioned medical treating documents/evidence, sick leave certificates, evidence regarding the plaintiff’s underperformance and exaggeration and the defendants’ surveillance evidence as mentioned above, and the court finds that the plaintiff’s conditions had recovered satisfactorily and attained static status in or about December 2019, and that a sick leave period of 7 months from 4/6/2019, ie the date after the Accident to 3/1/2020 would be reasonable and so allowed.

Returning to pre-accident job

127.  In the present case, both experts agreed that the plaintiff should be able to return to the pre-accident job.

128.  Dr Ko, after considering the plaintiff’s pre-accident duties as an assistant concierge including patrolling 3 to 4 times a day with some stair climbing, maintenance work, dealing with clients, visitors recording, lifting sandbags and stand occasionally, opined that the plaintiff should have been able to resume her pre-accident job at her full capacity without any significant impairment of her work efficiency and effectiveness after the sick leave of 6 months. Apart from Dr Ko, the plaintiff was also assessed by different independent treating healthcare professionals to have reached more or less stable and static condition.

129.  Though agreeing that the plaintiff could return to pre-accident job, Dr Fu opined that the plaintiff’s working efficiency would be decreased due to her left ankle and right shoulder impairment. He also opined that the plaintiff would have some difficulty in long period of patrolling and performing manual duties. Unfortunately, no discussion or analysis supporting his opinions was given.

130.  Regarding Dr Fu’s comments that “the plaintiff’s working efficiency will be decreased” due to her left ankle and right shoulder impairment, the defendants further referred this court to the case in Chan Sze Yuen v Tin Wo Engineering Company Limited & Others (unreported, HCPI 427/2008, 5/2/2016) in which the term “reduced work efficiency” has been criticized as follows:

“16. I often find the term “reduced work capacity and efficiency” rather vague and meaningless term with regard to actual earning loss.

18. Similarly, “general workers” like us are often affected by various minor ailment, coughs and colds, back pains, headaches, tiredness, jet-lags, hangover etc which may reduce our work capacity and efficiency.

19. We all learn to cope and work around such ailments, and still be able to perform at a reasonable level at our work. Our employers do not, in general, deduct our income because we feel jet-lagged returning to work after a holiday and have to drink a few more cups of coffee, or if we have headache and have to take some painkillers. Thus, any reduction in work capacity and efficiency does not always translate to a loss in income.”

131.  Moreover, I agree with the defendants’ observation that Dr Fu has simply accepted the plaintiff’s subjective complaints without any discussion or analysis and failed to discharge his duty to court, as criticized in the judgment of Li Cheuk Lam (supra) at paragraphs 25 to 40. Hence, I would not accept Dr Fu’s opinion in this regard.

132.  Apart from both experts, the plaintiff has also been assessed by different independent treating healthcare professionals who opined that the plaintiff has reached more or less stable and static condition. I am therefore of the view that difficulty in the plaintiff’s capability, if any, would be minimal.

133.  Besides, the occupational therapists advised that the plaintiff’s capability did not match her job demand and there was discussion between the plaintiff and the 1^st defendant as to lighter duties arrangement. The 1^st defendant submitted that lighter duties had been arranged but the plaintiff had resigned prior to the commencement of the lighter duties arrangement because (i) the plaintiff felt that it was not lighter duties, and (ii) the plaintiff did not like the work location which she considered as inconvenient. In fact, according to the defendants’ submission, the lighter duties consisted of only walking, and would not exceed 30 minutes for the first 2 weeks. That would be within the plaintiff’s walking tolerance as displayed in the surveillance video. This court accepted the defendants’ submission that the lighter duties would be within the plaintiff’s capability and therefore that the plaintiff’s decision to resign the job from the 1^st defendant was a matter of her personal choice.

134.  In fact, in relation to the occupational therapist’s advice that the plaintiff’s capability did not match her job demand, the Court is of the view that the opinion should be considered with great caution (if not reservation) on the grounds that: (i) it was not even supported by the plaintiff’s own expert Dr Fu’s opinions; (ii) the conclusion was based on the plaintiff’s own report and the assessment was done on the basis of the plaintiff’s own voluntary effort. The Court is of the view that the plaintiff’s presentation during the Tolerance Assessment was underperformed compared to the evidence discussed hereinabove, in particular the surveillance evidence.

135.  As mentioned hereinabove, the plaintiff’s underperformance and exaggeration and the defendants’ surveillance evidence have undermining effects under this head. In the premises, the Court is of the view that the plaintiff is able to return to her pre-Accident work as an assistant concierge in her full capacity, hence, no loss of earning beyond expiry of sick leave should be allowed.

136.  In other words, the plaintiff is entitled to 7 months’ loss of earning. The earnings derived from her employment taken up afterwards would not be relevant for the calculation herein. Accordingly, the plaintiff’s Pre-Trial Loss of Earnings with no entitlement of ORSO (will be discussed in following section) would be $118,243.09 ($16,891.87 x 7 months).

ORSO

137.  But for the Accident, it is plaintiff’s case that she would be benefitted from the entitlement under the ORSO scheme since the plaintiff probably would have continued to work for the 1^st defendant at least until the retirement age of 65 years old as stated in the employment agreement.

138.  The defendants’ case was that the general retirement age under ORSO scheme was 65 years old and the computing formula for ORSO entitlement was “final monthly salary x eligible service years x a factor”. The “final monthly salary” was the final monthly basic salary exclusive of any allowance, bonus, special pay and overtime pay. Sick leave was not included in the said formula. Thus, as long as the plaintiff continued to work for the 1^st defendant, no loss under this head would have been caused, ie no matter the plaintiff was on sick leave for 7 months or two years.

139.  The plaintiff’s ORSO entitlement would only cease to further accumulate upon termination of the employment relationship by way of either the plaintiff’s resignation and dismissal by the 1^st defendant. Since the plaintiff had rendered her resignation on 18 August 2021, her then.

140.  Since, as determined in the aforesaid, the plaintiff left the 1^st defendant’s employ out of her own personal choice rather than due to her injuries. Her ORSO entitlement thus ceased to further accumulate on 18 August 2021 when she rendered her resignation. The Court is therefore of the view that the plaintiff had no claim under this head as a result of her injuries.

FUTURE LOSS OF EARNINGS

141.  Based on the analysis of the joint expert report, the medical evidence herein, the surveillance evidence and the factual finding that the plaintiff was able to return to her pre-accident job, I do not consider the plaintiff is entitled to a claim for loss of future earnings in this case at all.

LOSS OF EARNING CAPACITY

142.  The plaintiff submitted that she is handicapped in the labour market because of her residual pain and disabilities and it has been evidenced by the number of jobs that she had attempted since 2021. Hence, the plaintiff is disadvantaged in the labour market because of her injuries. The plaintiff further averred that she does not possess any skill or technical knowhow that would enable her to change to another occupation. It is expected that the plaintiff would still be under a risk of unemployment and/or being regarded as less competitive during the post-trial period given her present physical conditions.

143.  The plaintiff thus claimed a sum of $200,000 under this head to compensate her for the loss of earnings she suffers as a result.

144.  On the other hand, the defendants relied on Dr Ko’s opinion that the plaintiff’s uncomplicated soft tissue injuries to right shoulder and left ankle carried excellent prognosis, and the plaintiff should be able to resume her pre-accident job as an assistant concierge at her full capacity without any significant impairment of work efficiency and effectiveness after sick leave of 6 months. The defendants thus submitted that the plaintiff failed to display a real risk of losing her current employment and that she would suffer disadvantages in the labour market. Despite submitting that no award should be allowed under this head, the defendants accepted an award of not more than $50,000 if the Court accepted that an award under this head was warranted.

145.  In Moeliker v Reyrolle & Co Ltd [1997] 1 WLR132, it was said that this head of damages should be considered in two stages. First, the court must ask if there is a substantial or real risk that the plaintiff will lose his present job at some time before the estimated end of his working life. If there is, the court must quantify the present value of the risk of financial damage which he will suffer, having regard to the degree of risk, the time when it may materialize, and the factors, favourable and unfavourable, which will or may affect his chances of getting a job at all, or an equally well-paid job.

146.  Even accepting Dr Ko’s analysis that the plaintiff was in a good prognosis from her injuries, this Court after considering the plaintiff’s present complaints and disabilities as a result of the Accident, is still of the view that she probably will not be able to regain all her physical strength as she possessed before the Accident. It is, in my view, inevitable that the plaintiff, because of her residual pain and disabilities, would be under a risk of unemployment and/or being the less competitive in the labour market. I therefore allow an award of $120,000 under this head (approximately 6 months of salary, ie $16,891.87 being the average monthly earnings x 6 months = $101,351.22).

Special Damages

147.  The plaintiff pleaded for a sum of $28,600 as expenses incurred as a result of the injuries she sustained in the Accident. Details of which were pleaded in the Re-revised statement of Damage and also shown in the agreed schedule of medical receipts. In gist, it includes (i) Medical expenses of $20,600; (ii) Travelling Expenses of $4,000; (iii) Expenses for Aid and Equipment of $2,000; and (iv) Tonic Food of $2,000.

148.  The defendants accepted a sum of $18,000 under this head of claim without giving any breakdown.

149.  The legal principles governing award under this head is the reasonable need of the injured person created by the injury. The Court would normally allow all medical expenses with documentary support. In the present case, since this court only allows 7-month sick leave for the plaintiff, at least half of the incurred medical expenses and travelling expenses for 2 years will have to be cut, ie $12,300. Taking a broad bush approach, this Court would allow the sum accepted by the defendants, ie $18,000.

SUMMARY OF DAMAGES

150.  Based on the above findings, the following sums as damages will be allowed:-

(1)	PSLA	$200,000.00
(2)	Pre-trial Loss of Earnings	$118,243.09
(3)	Entitlement under ORSO	Nil
(4)	Post-Trial Loss of Earnings	Nil
(5)	Entitlement under ORSO	Nil
(6)	Loss of Earning Capacity	$120,000.00
(7)	Special Damages	$18,000.00
		___________
	Sub-total	$456,243.09
	Less CN (20%)	($91,248.62)
	Less EC received	($324,203.43)
		___________
	Total	$40,791.04

CONCLUSION

151.  Based on my findings supported by the evidence in the present proceedings, the defendants should be held 80% liable for the Accident and the plaintiff should be held liable 20% for her contributory negligence. My calculation for the damages has been shown in the preceding paragraph. And, I order that judgment be entered against the defendants in the sum of $40,791.04 plus interest in this case.

INTEREST

152.  I will allow the claim for interest as follows:-

(a)  the usual award for interest at 2% per annum for general damages from the date of writ to the date of judgment;

(b)  at half of the judgment rate for special damages from the date of the Accident to the date of judgment; and

(c)  thereafter at judgment rate until full payment.

COSTS

153.  Costs will follow the event. I will make a costs order nisi that the defendants shall pay the costs of this action in favour of the plaintiff. Such costs to be taxed if not agreed on the District Court scale, with certificate for counsel. The plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations. In the absence of any application to vary the same within 14 days after the handing down of the judgment, the order nisi will become absolute.

154.  Lastly, I remain grateful to the plaintiff’s counsel Ms Julia Lau, the defendants’ counsel, Mr Gary Chung and Mr Jethro Pak and their instructing solicitors for their helpful assistance rendered to me in these proceedings.