PAK SIU HIN SIMON v. J.V. FITNESS LTD

HCPI 574/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 574 OF 2014

____________

____________

_______________

J U D G M E N T

_______________

Introduction

1.  The plaintiff was employed by the defendant (now in liquidation) as a fitness trainer since 7 March 2011.  He had an accident on 2 June 2013 during training with a customer.  He slipped and fell and sustained injuries with resultant pain and psychiatric problems.

2.  Interlocutory judgment on liability has been entered by default on 13 July 2015.  This is a hearing for assessment of damages.

3.  There is no dispute that the plaintiff can return to his pre-accident work and that he had been suffering from panic disorder that required psychiatric treatment. 

4.  The plaintiff’s case is one of protracted non-recovery and deterioration, for which he requires future medical treatment.  He has sick leave for 637 days.

5.  The defendant’s case is that the injury was a minor contusion, ie soft tissue injury.  The plaintiff’s psychiatric symptoms were also minor.  He exaggerated symptoms which were not supported by objective medical findings. Sick leave should be something between 7 days and 9 months. 

6.  The core issue is whether or not the injuries were as serious as what the plaintiff claims or that he has been malingering; and whether he has to work with reduced capacity. 

The factual background

7.  The plaintiff has been employed by the defendant for about 2 years prior to the date of the accident. 

8.  On the day of the accident, he was training a customer to do TRX Suspension Training (“TRX”).  The plaintiff’s hands were holding the rings of the TRX and his body was in a semi-reclined position. 

9.  In his witness statement, he stated that he “引體上升將個人身體不斷吊起來上落” and “過程中雙腳會不斷升起懸空及踏回地面”。

10.  Having heard him give evidence and watched the video record of the defendant, I find that “吊上吊落” really meant “拉前拉後”.  “雙腳會不斷升起懸空” did not really mean the feet were lifted from the floor.  The plaintiff really meant that he was not lying on the floor and that he was either standing up or that his back was reclining towards the floor, but a foot was pointed towards the ceiling at a 90 degree angle from the floor.  I find that it was more a situation of imprecision in language of the draftsman of his witness statement rather than misstatement of facts.

11.  Shortly before the accident, the plaintiff’s knee was bent.  He accepted under cross-examination that his heels were on the floor. His left hand first lost grip of the TRX ring, followed by his right.  His right foot was firmly on the ground.  His left palm touched the mat first, followed by his low back/buttock, more over the left.  As he fell further backwards, his left palm was no longer on the floor whilst his right leg pointed up in the air.  He then rolled his body to the right.  He remained motionless for some time on the mat. 

Medical treatment received

12.  The plaintiff was first treated at the Accident & Emergency Department (“A&E Dept”) of Queen Mary Hospital (“QMH”) and was discharged on the same day.  Thereafter, he received orthopaedic and psychiatric treatment.  He has received 56 sessions of physiotheraphy between August 2013 and January 2015.  He was granted continuous sick leave from 2 June 2013 to 10 March 2015 (inclusive) for a total of 637 days.

13.  The ambulance record showed that the plaintiff did not complain about any palm or wrist injuries to the ambulance man at all.  He described his injury as contusion caused by a metal buckle (measuring 5 cm x 3 cm x 0.5 cm) of his waist-bag right in the middle of his waist.  There was pain at low back, numbness in right buttock and back of right thigh.

14.  Examination at the A&E Dept of QMH on the day of accident identified local tenderness over low back, full range of movement of bilateral hips, and no limb weakness.  There was a record of right thigh “numbness” but the plaintiff had refused to describe to the orthopaedic experts as to what that numbness felt like, what he meant by that or whether he was still having numbness or not.

15.  The plaintiff asserted that he had told the treating doctor that his pain level was 6 to 7 immediately after the accident.  However, this did not appear in the medical record.  I do not accept his assertion.

16.  In June 2013, the plaintiff consulted Dr Lai of Yan Kin Orthopaedic Pain Centre (“Yan Kin”) complaining of severe back pain at the L-S region, sciatica pain and numbness radiating down to right plantar region that limited his daily activities, walking, sitting and sleeping.  MRI of lumbar spine was performed. The plaintiff then had follow-up consultations with Dr Lai.

17.  The plaintiff first attended On Kin Physiotherapy Centre on 21 June 2013 for one physiotherapy session only, until 2 months later.  He could not explain the length of time.

18.  In the period on and after 5 July 2013, the plaintiff appeared to have undergone substantial change to his condition.  He claimed to be suffering from insomnia because of pain, increased heartbeat, heavy sweating and trembling.  He also had panic attacks.  According to his witness statement, his waist and right leg suddenly felt very painful on 5 July 2013 and he had to take painkiller.

19.  Contrary to that assertion, the treating doctor at the A&E Dept of Prince of Wales Hospital (“PWH”) only identified lower back and right hip pain. The A&E Dept record showed that he was “ambulatory”.  The plaintiff filled in a questionnaire for the Department of Physiotherapy, stating that he did not have pain every day.  When asked to describe the maximum degree of pain in the past 7 days, he indicated a level of 3 out of 10. He even “refused Panadol” and no medication was prescribed.  The plaintiff had no answer to the contradiction between his witness statement and the medical record.

20.  On 11 July 2013, the video surveillance showed that the plaintiff was walking without a stick.  Dr Tio (orthopaedic expert of the plaintiff) accepted that the plaintiff’s gait was normal.  The plaintiff’s explanation was that he was wearing a corset and had been doing so for 2 months after the accident, not under medical advice. 

21.  Wearing a corset was a fresh assertion.  None of the treating doctors or physiotherapist, or even the orthopaedic experts ever recorded such use.  In re-examination, Mr Chang, the plaintiff’s counsel, drew attention to references in the report of Dr Lai of Yan Kin that he had given him a lumbar support.

22.  Whatever lumbar support was given to the plaintiff, it was plainly not the corset that he bought.  Anyhow, the fact that the plaintiff chose to use a corset instead of the lumbar support indicated that his injury was minor.  I find the alleged use of a corset to be a recent invention of the plaintiff to boost his case.

23.  On 16 July 2013, the plaintiff consulted Dr Lau of St Paul’s Hospital.  Subsequent MRI showed no relevant findings.  The plaintiff regularly attended the outpatient department and received physiotherapy at St Paul’s Hospital with the last follow-up on 23 April 2014.  He was referred to PWH for further management.

24.  On 18 July 2013, the plaintiff went to the Physiotherapy Department of PWH.  The record was that:

(a)   The plaintiff claimed that his worst pain level was 5/10, and pain level at rest was 2/10.

(b)   There was no claudication ie no limping.  A tick was marked next to the item “Walking tolerance”.

(c)   In respect of ambulation, no aids were required.

(d)   Results for straight leg-raising test were negative.

(e)   No quad wasting or calf wasting was observed.

(f)   No palpation and no paraspinal muscle spasm was observed.

(g)   There was no red-flag symptoms.

Dr Tio agreed that the injuries depicted in the above answers were not serious at all.

25.  The plaintiff had gone to the Union Hospital (which was admitted by the defendant in the Answer) in July 2013 but he had not produced documentary evidence.  I can only presume that nothing relevant was in that Hospital’s finding.

26.  Since about July/August/September 2013 (each according to the plaintiff), the plaintiff had allegedly been using a stick because he had been relying on his left leg for support and walking.  This was quite contrary to what the questionnaire on 5 July 2013 described as ambulatory.  Anyhow, use of a stick seemed to have continued to the last video surveillance on 21 March 2015, ie for at least 18 months.

27.  On 6 August 2013, the plaintiff was first diagnosed by Dr Tai to suffer from panic disorder.  He consulted Dr Ng between 4 December 2013 and 7 May 2014.  Dr Ng diagnosed the plaintiff as suffering from panic disorder following the accident.

28.  On 12 November 2013, the plaintiff attended the Department of Orthopaedics & Traumatology of PWH.  Physiotherapy was prescribed.  There was persistent back pain and right hip pain.  He could walk unaided on level ground. Condition was static.  He was referred to the Medical Assessment Board for assessment.

29.  The plaintiff was examined by Dr Chan of PWH.  He was observed to walk “with limping gait with a stick”, and complained of “both R hip pain and R buttock numbness and pain radiating to R sole”.  That was just 40 days after the examination by Dr Cheng, the insurer’s doctor (see paras 32 & 33 below).  The plaintiff was unable to explain the drastic worsening of his condition within a period of 40 days.

30.  On 10 February 2014 (ie 7 days after his trip to Korea), the plaintiff went to the Orthopaedic Clinic.  The attending doctor recorded that the plaintiff “now [walked] with limping gait with a stick”.

31.  The plaintiff was assessed by the Employees’ Compensation (Ordinary Assessment) Board on 8 October and 10 November 2014.  He was assessed to be suffering from back injury resulting in (1) prolapsed intervertebral disc at L4/L5 and L5/S1 regions; (2) right hip pain; and (3) hypervigilance and panic disorder.  Loss of earning capacity permanently caused by the injury was assessed at 12%, of which 11% was in respect of orthopaedic and traumatology injury and 1% was in respect of psychiatric injury. 

Examination on 3 October 2013 by the doctor appointed by the insurer

32.  Going back a little in time, the plaintiff was examined by Dr Cheng on 3 October 2013.  The plaintiff could walk and stand normally.  He could support himself on any one leg, his toes and heels, a little steady. He could squat 4/5 down and rise normally.  There was tenderness over low back. The back had no deformity, no muscle sprain (which Dr Chun said should be no muscle “spasm” instead).  There was no muscle wasting.  Straight leg-raising results were typically normal.  Apart from some pain on flexion, his right hip was otherwise normal.

33.  Dr Cheng concluded that the plaintiff sustained “a back contusion injury and possibly a right hip injury.  However, these injuries were simple soft tissue injuries” and the plaintiff should be able to resume his pre-injury job as a fitness trainer.  Dr Cheng gave further sick leave of 3 months, making a total of 7 months upon expiry.

Joint examination by the orthopaedic experts

34.  More than 14 months after the assessment at PWH, the plaintiff was examined by the joint orthopaedic experts (Dr Tio for him and Dr Chun for the defendant) on 11 September 2014.  This time, he claimed to be suffering from continuous and non-stop pain (which Dr Tio agreed to be an exaggeration) in the right low back, at levels fluctuating from grade 2-3 to grade 5.  He also alleged that he was suffering from right hip pain of grade 6. That was despite his having already received many months of physiotherapy.

35.  The plaintiff was unable to perform any of the acts which he did before Dr Cheng.  Dr Tio could not see the objective reason.  Dr Chun for the defendant considered that these were simple tasks which should be easily performed without any problem to the hip or the low back.

36.  The relevant findings of the orthopaedic experts were that:

(a)   There was no objective neurological deficit and no fracture.  Both experts agreed that the plaintiff had only suffered minor contusion/soft tissue injury of the right hip and/or the low back;

(b)   The findings upon MRI were incidental and pre-existing conditions not related to the accident;

(c)   Waddell’s simulation tests on shoulder pressure and pelvic rotation were positive.  Both experts agreed that it indicated that the plaintiff’s pain could not be explained on organic grounds (ie in relation to bone, muscle, tendon, neurology, disc, or internal organs).  Dr. Chun commented that the plaintiff “had exaggerated and expanded his symptoms out of proportion to the initial possible minor trauma”.  Dr Tio likewise accepted that the plaintiff exaggerated his symptoms;

(d)   “There was no muscle wasting of the plaintiff’s lower limbs”.  Dr Chun testified that, if the symptoms described by the plaintiff in his witness statement were true, he would expect to find muscle wasting (ie significant difference between the muscles in the left and right thigh).  Dr Chun even stated that there was no difference in muscle tone on palpation;

(e)   Both experts opined that the plaintiff was able to return to work as before, although Dr Tio said the plaintiff might work with a reduced capacity; the plaintiff’s “endurance and power were likely to be moderately reduced” such that he would need “intermittent breaks of 15 minutes after each 2 hours’ work”;

(f)   Dr Chun opined that reasonable sick leave should not be more than a week.  Dr Tio endorsed all the sick leave in view of the presence of psychiatric illness and the pre-injury job.  In answer to the court’s question, Dr Tio said that without psychiatric problem, reasonable sick leave should be around 12 months; and

(g)   Dr Tio opined that the plaintiff was able to carry on his usual daily activities; he could resume his original duty with a reduced capacity.  Dr Chun opined that there was no permanent impairment to the plaintiff in relation to the injury and there was no loss of earning capacity.

Other relevant circumstances

37.  In his witness statement dated 23 February 2015 (some 5 months after the joint examination), the plaintiff described his “current condition” as involving constant pain, which seriously affected his daily activities.  The pain felt like pin-pricking.  There was numbness of the right thigh – something which he adamantly refused to describe despite the orthopaedic experts’ questioning.  In the witness box, he even claimed that in February 2015, he could not walk for too long, otherwise the hip joint would have pin-pricking pain.

38.  The defendant has put the plaintiff under video surveillance.  It was observed that about a month after the accident, the plaintiff was walking in normal gait.  On another occasion on 3 October 2013, the plaintiff was walking with a stick.  He has also been driving a car.  In fact, the plaintiff has bought a new car at $500,000 6 months after the accident.

39.  The defendant also discovered that the plaintiff has had 4 pleasure trips during his sick leave period, the first 3 of which were taken within 8 months from the accident.

40.  The plaintiff’s employment with the defendant ceased by agreement on 10 April 2015.  He has had 3 jobs since.  One was with Wifi Egg Co Ltd (“Wifi Egg”) from 1 June 2015 to 29 February 2016.  The other was with Fighting Arts Centre (“FAC”) from 1 March to 6 November 2016.  He is now employed as a driver with a company which he is not willing to disclose.

Credibility of the plaintiff

41.  In assessing the credibility of the plaintiff, I have considered his assertions against the medical evidence and objective circumstances.  I remind myself that pain is subjective, which can be exaggerated or made up. 

42.  As invited by Mr Chang, I have considered whether the plaintiff had the incentive to lie.  He was promoted to Assistant Fitness Manager about 11 months before the accident with a good income.  He was newly wed about 7 months before the accident.  His income was largely commission based, derived from his personal training sessions with customers.  Prolonged absence from work may wipe out his clientele.  On the other hand, Mr Wong SC pointed out that during the sick leave period, the plaintiff had been paid almost the same level of pre-accident income until his employment was terminated.

43.  I find that the plaintiff did have the incentive to lie or exaggerate.  I shall not take his evidence at face value.

44.  As demonstrated below, the alleged current condition represented a “deterioration” since the date of the accident.  It was not supported by medical records and other objective circumstances.

Analyses of the orthopaedic condition

45.  The plaintiff fell on a plastic mat, a device to protect users of the gym.  Just before the accident, he had advised the customer that it was easy to slip.  One can expect the plaintiff to have been careful to reduce any chance of slip and the resultant impact.  The objective medical records support a case of minor injuries: no palm or wrist injuries, no hospitalization; complaint of minor injuries to the ambulance officers; redness, abrasion, bruising or swelling whilst at the A&E Dept; numbness was never described; treating doctors recorded no signs of serious injury.  There was no muscle wasting or neurological deficit months after the accident.  The plaintiff had positive results in the Waddell’s simulation tests.  These made the complaint of serious pain unlikely to be true.

46.  Dr Tio suggests that the impact might not have been taken up by the left palm/wrist but the plaintiff’s elbow might have flexed at the moment of contact.  I am unable to see from the video whether there was such flexing. The plaintiff’s own recent complaint to the ambulance man left no room for Dr Tio’s suggestion.

47.  Further, Dr Chun was of the opinion (unchallenged) that soft tissue injury at the back would only result in local tenderness.  Prolonged and continuous pain was not the sequel of possible minor trauma.  Any complaint of generalized widespread disturbance (of the whole limb) was unlikely to be genuine as that would have to involve injury to all 5 nerves in the spine. Compression of one of the nerves in 1 or 2 of the lumbar discs could only have caused localized disturbance.  Thus, the plaintiff’s allegation of pain or numbness of the whole of his right thigh was most likely to be an exaggeration of symptoms, Dr Chun said.

48.  Mr Chang submits that Dr Chun was not entitled to comment that the plaintiff suffered only “minor contusion of the right buttock or low back”.  Dr Chun was not an expert in physics and he was in no position to say how one should “normally” react in terms of reflex action, and the force of impact on the plaintiff’s right hip/buttock and low back, simply by looking at the CCTV footage.  In making these unwarranted comments, Dr Chun was allowing himself to trespass into the territory of an investigator of the facts, rather than giving medical opinion evidence as an orthopaedics expert: The Ikarian Reefer (No 1) [1993] 2 Lloyd’s Rep 68 at 81, Cresswell J.  Mr Chang submits that Dr Chun has examined the plaintiff with coloured blinkers and a closed mindset.

49.  I do not agree.  Dr Chun’s comments were fair and more consistent with the plaintiff’s abundant medical records, the video record and his examination of the plaintiff . I prefer his opinion to that of Dr Tio.

50.  There was of course the 56 physiotherapy sessions.  There was a gap of 2 months between the first 2 sessions.  If, as Dr Tio testified, one would do physiotherapy if there was pain, the plaintiff’s failure to do physiotherapy initially showed that his pain was minimal.  Anyhow, the physiotherapy may show continuous pain but there was simply no objective medical evidence or intervening occurrence since July 2013 to explain the need for physiotherapy.

51.  Up to October 2013 when the plaintiff was examined by the insurer’s doctor, all injuries appeared minor.  Subsequently, the deterioration arose for no objective reason.  However, by the time he saw the orthopaedic experts, he could not even do simple tasks.

52.  As for the stick, there was nothing to show when earlier had the plaintiff known of being followed by loss adjusters until he told Dr Ng (psychiatrist) in December 2013.  I give him the benefit of the doubt.  Anyhow, Dr Tio gave no reason to justify use of the stick.  Dr Chun commented that the stick was totally unnecessary in the absence of serious objective neurological deficit or serious local pathology of the lower limbs.  I am not satisfied that the use of a stick was necessary.

53.  Further, the plaintiff had been driving.  He even bought a car at $500,000 without consulting the doctor to see if he was fit to drive.  How could he have managed the car pedals if he was having serious pain, and numbness of his whole right thigh up to his toes, making his right foot weak and powerless?  The plaintiff’s right leg numbness could hardly be true.

54.  The injuries did not make the plaintiff bed-ridden.  However, I find it difficult to accept that the plaintiff was not fit to work for orthopaedic reason and yet fit to travel.  Moreover, if as he alleged, most of the time he stayed inside the hotels, one just wondered how that could relief his pain/panic attack as he claimed.  The plaintiff’s testimony was that doctors have told him that he was fit to travel if the flight was not too long, but such advice never appeared in medical reports.  He was adamant that he sought advice from Dr Chan of PWH in respect of his trip to Korea.  However, that was simply impossible because his first consultation with Dr Chan was on 12 November 2013, when that trip had ended 2 days before.  The plaintiff was apparently not so physically bad as he claimed.

55.  Anyhow, I am content not to rest my decision on those 4 trips.

56.  I find it most probable that the plaintiff’s low back pressed against the metal buckle, as he described, resulting in contusion/soft tissue injury. As the metal buckle was at the waist level of his back, there was no contusion of the hip.  The plaintiff’s assertion of symptom deterioration was simply not borne out by the objective medical findings.  I found that he had exaggerated and malingered.  His daily activities were not affected by the pain.

Psychiatric injuries of the plaintiff and treatment received

57.  There is no dispute that the plaintiff has had panic disorder and that he could resume his original duty.  His alleged symptoms first appeared in July 2013.  He was treated since 6 August 2013 and was last seen by a psychiatrist on 7 May 2014.  He complained of increased worries, sweating, increased anxiety and panic attacks now and then.  As admitted by the plaintiff, Dr Ng only first granted him sick leave of 5 months from 9 October 2014 (16 months post accident).  But did he really need it?

58.  The sick leave on psychiatric ground started immediately after the sick leave on orthopaedic grounds expired on 8 October 2014.  The plaintiff achieved this by bringing forward a pre-booked date of consultation with Dr Ng by 6 days to 9 October 2014.

59.  His explanation was that (i) he had to be assessed by the Medical Assessment Board, and (ii) Dr Chan told him that nothing could be done with the plaintiff’s right hip joint and that it had to be replaced. 

60.  Those, in my view, were just excuses.  That assessment would not prevent the plaintiff from consulting a psychiatrist.  In any case, the assessment was completed a month later.  Explanation (ii) was never recorded in any medical records, or Joint Report, or the plaintiff’s witness statement despite the plaintiff’s claim for future medical costs.

61.  The plaintiff had ceased consultation with Dr Ng after the 5 months’ sick leave had expired.  He alleged, for the first time in the witness box and without documentary proof, that he was and is receiving treatment from the Department of Psychiatry of PWH for panic attack. 

62.  Although Dr Ng’s notes indicated a referral to public psychiatric out-patient clinic on 17 June 2014, as noted by the Joint Psychiatrists, the plaintiff missed the appointment at PWH in June 2015.  The plaintiff said he was satisfied with Dr Ng’s treatment.  In fact, Dr Ng scheduled a follow up appointment on 30 October 2015.  I am not satisfied that the plaintiff had been treated at PWH for psychiatric cause.

63.  In the Joint Report of the Psychiatrists dated 11 February 2016, it was recorded that, according to the plaintiff, there were no attacks from September or October 2014 until November 2015.  There was no evidence or any medical records to show that he had sought psychiatric treatment.  In fact he told the psychiatric experts that his mental condition had become better after the increase of drug dosage.

64.  When he was working with Wifi Egg, the plaintiff was having panic attacks.  He admitted in the witness box that panic attacks did not prevent him from working.

65.  The plaintiff’s expert psychiatrist (Dr Cheung) opined that the panic disorder was caused 100% by the accident. He endorsed all previous sick leave as the combined effect of physical and mental symptoms.  On the other hand, the defendant’s expert (Dr Yu) stated that only 50% was caused by the current litigation, which required him to continue to feign physical disabilities.  He considered appropriate sick leave to be about a month.

66.  Mr Chang criticized Dr Yu for giving opinion beyond his expertise. Whilst it may appear that Dr Yu has placed too much reliance on Dr Chun’s opinion, I consider that Dr Yu’s conclusion that the plaintiff was feigning physical disabilities was amply supported by the evidence on orthopaedic cause in this case.

67.  There was no objective circumstance to support serious psychiatric symptoms.  I accept Dr Yu’s report.  The plaintiff’s psychiatric cause did not affect his ability to work.  He feigned disabilities for the purpose of this litigation.  The plaintiff did not need the sick leave granted by Dr Ng. 

Quantum of damages

68.  The plaintiff seeks damages of about $8.7 million.  The defendant suggests $180,000.  Their respective case is as follows:

	Plaintiff (HK$)	Defendant (HK$)
PSLA	400,000	80,000
Pre-Trial Loss of Earnings and MPF	3,407,730.76	97,217.31
Future Loss of Earnings	5,234,040.00	0
Loss of Earning Capacity	300,000.00	0
Special Damages	88,000.00	3,000
Future Medical Expenses	100,000.00	0
Less employees’ compensation received	(795,766.96)	(795,766.96)
Total excluding interest	8,734,003.80	0

Pain, suffering and loss of amenities (“PSLA”)

69.  The plaintiff was aged 32 at the time of the accident and is now 36.  Prior to the accident, he enjoyed good physical health.

70.  Without disrespect to Mr Chang, the authorities relied on by him involved different circumstances: CMY v Tam Siu Wing [2008] 4 HKLRD 604 and Luk Shu Keung v Kwok Chi Shing, HCPI 848/2005, unreported, 28 February 2011 (both involving traffic accidents); Liu Shui Bik v Countfortune Ltd & another, HCPI 60/2008, unreported, 17 March 2010 (lifting heavy loads);  Wu Leung Kui Jacky v Leung Ming Yun & others, DCPI 1154/2008, unreported, 7 March 2011 and Luk Sung Fei Veronica v Chau Chung Shun & another, HCPI 392/2009, unreported, 29 June 2012 (both involving assault).  Those cases involved more serious injuries and no malingering.  I decline to rely on them.

71.  The authorities referred to by Mr Wong SC are more consistent with the contusion and soft tissue injury suffered by the plaintiff.  I gratefully adopt his brief summary of those cases:

(a)   Lau Wa Ying v Caritas – Hong Kong,DCPI 2885/2014, unreported, 6 March 2017,it was a slip and fall accident in a toilet with the buttocks landing on the floor (§6(e)).  The plaintiff attended the A&E Dept the day after the accident.  Physical examination showed mild tenderness over her low back and the sole of her left foot.  No bone fracture or neurological sign was noted (§95).  Both psychiatrists agreed that the plaintiff had major depressive disorder and showed a great deal of exaggeration of mental symptoms (§113).  Both orthopaedic experts agreed that the plaintiff suffered a soft tissue injury of back (§118(a)).  The Court found that the plaintiff has been exaggerating, totally out of proportion to her relatively minor injury, her symptoms and her present complaints (§124).  Taking into account the plaintiff’s psychiatric disorder, the court would have awarded HK$120,000 for PSLA to the plaintiff if liability was established (§128).  The facts are rather close to the present case and the judgment was given in March 2017.

(b)   Cheng Liu Nei Su v Clare Environmental Services Ltd, DCPI 842/2008, unreported, 30 July 2009, the plaintiff, a cleaning foreman, fell off a ladder and landed on her buttocks and back (§13).  She developed mental depression due to residual back pain 6 months after the accident (§17).  The orthopaedic experts agreed that the plaintiff had suffered soft tissue injury with residual pain but the described symptoms were disproportional to the actual injury sustained (§55).  They also agreed that the plaintiff could take up lighter cleaning duties (§22).  The psychiatric experts agreed that the plaintiff suffered from a mild form of adjustment disorder and depressed mood, but was fit to return to her previous job from a psychiatric perspective (§59).  PSLA was awarded at HK$150,000 (§62). 

(c)   Tse Sin Yee v Wing Wah Cake Shop Limited, DCPI 1618/2010, unreported, 19 July 2011, the plaintiff sprained her back and right thigh while lifting trays of cakes from the floor (§§8 and 48).  She suffered from adjustment disorder with anxiety and depressive mood (§49(a)).  The court awarded sick leave of 609 days (§63) and PSLA at HK$175,000 (§61).

(d)   Tam Kwok Man v The Kowloon Motor Bus Co (1933) Ltd, HCPI 755/2001, unreported, 11 July 2003, one of the wheels of the office chair was lost, causing the plaintiff to land on his buttocks and the upper part of his back hit against the door-sill of the kiosk (§3).  The Court noted that the plaintiff might have become depressed (§42).  The Court also found that the plaintiff had a degree of exaggeration in the complaints about his condition (§47).  9 months of sick leave were allowed (§59).  PSLA was awarded at HK$150,000 (§62). 

72.  Having regard to these authorities, the plaintiff’s minor injuries and the psychiatric illness, I award a sum of $150,000 to the plaintiff for PSLA.

Pre-trial loss of earnings

73.  There is no dispute that the pre-trial loss of earnings was $100,000 per month, net of tax and MPF.

74.  The plaintiff’s pre-trial loss of earnings is governed by the period during which he was prevented by the injuries sustained from returning to work. The court can place weight on views of treating doctors.  However, the experts’ views of the overall picture are equally important.

75.  The court is not bound by the sick leave certificates as they were issued primarily because of subjective symptoms reported to the doctors by the plaintiff: Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, §18, by Le Pichon JA; Subba Alvinv Houng Kee (Asia) Limited & ors, HCPI 154/2010, 16 July 2014, by Master Leong.  

76.  The evidence on sick leave period is as follows:

(a)   Dr Chun – one week for orthopaedic cause;

(b)   Dr Tio – endorsing 637 days granted by various treating doctors; but just for orthopaedic cause, 12 months;

(c)   Dr Cheng (insurer’s doctor) – 7 months up to 2 January 2014;

(d)   Dr Cheung – 637 days;

(e)   Dr Yu – one month for psychiatric cause.

77.  The fact that the plaintiff suffered pain did not mean that he would be entitled to sick leave.  People may suffer pain for all sorts of reason and that would not prevent them from discharging their duties in full.  Employees do not go to work only when they are 100% fit and efficient.  The remarks of Master Leong in Chan Sze Yuen v Tin Wo Engineering Co Ltd, HCPI 427/2008, 5 February 2016,at §§16-21 are illuminating:

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

17.   We do not go to work only when we are 100% fit and efficient. I cannot imagine that, for example, any professional football player only play matches when he is perfectly fit. Any professional (or even amateur) athletes are likely to be affected all through their careers by various old and new injuries, pains or aches due to training etc.

18.   Similarly, “general workers” like us are often affected by various minor ailments, coughs and colds, back pains, headaches, tiredness, jet-lags, hangovers 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 a headache and have to take some painkillers. Thus, any reduction in work capacity and efficiency does not always translate to a loss in income.

20.   On other occasions, even if we have some long term illness or disabilities, a reasonable attitude to work and a sympathetic work environment might mean that we could still cope with our work: change of work practice, working “around” an injury etc.

21.   Such situations may depend upon finding a sympathetic employer and work team. These are the occasions when the court needs to consider a claim under “loss of working capacity/disadvantage in the labour market” on the account that the plaintiff may be at risk to lose his job and then he may take longer than usual to find a new employer.”

78.  Dr Chun’s opinion might be too conservative, having regard to the fact that the plaintiff has to do physical work as a fitness trainer. Dr Tio and Dr Cheung’s opinion is too generous, having regard to the minor injuries.  Dr Cheung’s opinion, in particular, has to be considered with care because it was based on the plaintiff’s alleged back pain alone before 9 October 2014.

79.  On balance, I am not satisfied that there was basis to grant sick leave for psychiatric cause beyond that for orthopaedic cause.  I also have doubts as to whether he needed psychiatric treatment at all from Dr Ng.  He clearly was shopping for sick leave certificates immediately after the sick leave for orthopaedic cause had expired.  Sick leave for 637 days was grossly excessive.

80.  The plaintiff has been able to drive and travel overseas.  There was no evidence that his work required lifting heavy objects.  As could be seen from the video, he could have breaks in his demonstration as a fitness trainer.  He could work despite his psychiatric condition.

81.  I am of the view that the plaintiff should have returned to work on expiry of sick leave grant by Dr Cheng (7 months).  Accordingly, pre-trial loss of earnings should be limited to 7 months:

    $100,000 x 7 = $700,000

Future loss of earnings

82.  The plaintiff’s employment with the defendant was terminated on 10 April 2015.  Even if he had continued, appointment of provisional liquidators for the defendant on 13 July 2016 would have placed the plaintiff in the same disadvantage as any of his colleagues not under disabilities.  Accordingly, any future loss of earnings should, at most, be limited to 3 years since the accident.

83.  Mr Chang submits that the plaintiff’s claim should not be affected by the defendant’s liquidation in July 2016 because his claim was “crystalized” at the time of his accident.  I disagree.  The plaintiff’s physical condition and the defendant’s condition may change before the time of trial.  It is impossible to say that a plaintiff’s claim was crystallized on the date of the accident.

84.  Further, all the experts opined that the plaintiff could have returned to and he did return to his pre-accident job.  He suggested that loss of earnings were $75,000 per month until termination by FAC.

85.  However, the plaintiff’s witness statement said nothing about his recovery and his efforts in finding a job before he worked with Wifi Egg.

86.  Since 1 March 2016, the plaintiff had worked for 8 months as a fitness trainer in FAC.  He said little about the nature of his work at FAC, produced little documentary evidence of his income of $25,000 per month and the cause of termination of employment there.

87.  Given that his pre-accident income was $100,000 and his income from FAC was $25,000, he never explained why he claimed only $20,000 per month for future loss of earnings.

88.  Just to complete the analyses, I accept a multiplier for a person of his age is 20.31 (Personal Injuries Table 2016, p 29).

89.  I am not satisfied that he should be awarded any future loss of earnings. 

Loss of earning capacity

90.  In Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, at 311I-312G, Keith JA held that if there is a “substantial” or “real” risk that a plaintiff would lose his present job at some time before the estimated end of his working life, and he thereby suffers the risk of financial damage, he may be awarded future loss of earnings.

91.  The plaintiff claims a sum of $300,000 as the alleged residual disabilities would cause him to lose competitiveness in the labour market and substantially reduce his choice of employment.

92.  The facts spoke for themselves.  The plaintiff was able to return to a similar job at FAC.  I repeat paragraphs 86 and 87 above.  I am not satisfied that the plaintiff has lost earning capacity.  I make no award.

Special damages

93.  The plaintiff claims HK$88,000 for special damages, consisting of HK$70,000 medical expenses, HK$8,000 travelling expenses, and HK$10,000 tonic food.

94.  Medical expenses should be allowed for only the first 7 months. There is no evidence that future medical treatment is required.

95.  There is no evidence that as a result of the accident, the plaintiff required more use of taxis or even his car.  All that I allow would be nominal expenses for travelling for medical treatment for the first 7 months, in the amount of $7,000 (an average of $1,000 per month).

96.  There is no evidence as to the suitability of nourishing food to assist in recovery: Yu Ki v Chin Kit-lam & another[1981] HKLR 419, at 421F-G, per Roberts CJ.  I allow a nominal sum of $5,000 for tonic food.

Conclusion

97.  I award damages as follows:

	Amount (HK$)
PSLA	150,000
Pre-Trial Loss of Earnings and MPF	700,000
Future Loss of Earnings	0
Loss of Earning Capacity	0
Special Damages	12,000 + 7 months’ medical expenses
Future Medical Expenses	0
Less employees’ compensation received	(795,766.96)
Total excluding interest	66,233.04 + 7 months medical expenses

98.  There shall be interests, on a nisi basis, as follows:

(a)   2% per annum for general damages from the date of service of the writ to the date of judgment;

(b)   Half judgment rate for special damages from the date of the accident to the date of judgment; and

(c)   Judgment rate on the final award from the date of judgment until full payment by the defendant.

99.  Costs should follow the event.  I make an order nisi for the plaintiff’s cost to be on District Court scale since the time he received the employees’ compensation. 

100.  I thank counsel for their thorough analyses and great assistance to the court.