FOK YUK CHING v. K & P CONSULTANCY SERVICES LTD AND ANOTHER

DCEC 1981/2020

[2023] HKDC 1581

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1981 OF 2020

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ASSESSMENT OF COMPENSATION

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INTRODUCTION

1.  This is an application of Ms Fok Yuk Ching (“Ms Fok”) for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”) against her former employer K & P Consultancy Services Limited (“K&P”) for an accident arising out of and in the course of employment on 20 November 2018 (the “Accident”).

2.  Initially, both Ms Fok and K&P were legally represented.  Ms Fok’s solicitors, Messrs Huen & Partners (“H&P”), had acted for her from the very beginning of these proceedings until 21 February 2023, when Ms Fok filed a Notice to Act in Person.  Before that, H&P had filed for Ms Fok her Amended Application, List of Documents, and a witness statement.  In addition, H&P had obtained leave for Ms Fok to adduce medical expert evidence at the trial; the joint medical expert report has been filed.

3.  As to K&P, it was represented by Messrs Peter W.K. Lo & Co. (“PWKL”). PWKL’s involvement in these proceedings was limited.  They had filed an Answer to Notice for K&P on 18 November 2020, under which K&P merely disputed on the sick leave granted to Ms Fok beyond 24 November 2018.  On 28 May 2021, PWKL attended a direction hearing before HH Judge Levy, during which judgment on liability was entered against K&P, leaving compensation to be assessed.  On the same day, PWKL was granted leave by Judge Levy to cease acting for K&P[1]. Since then, K&P has not participated in these proceedings.

4.  The Employees Compensation Assistance Fund Board (the “Board”) entered the picture on 8 June 2022 when its solicitors, Messrs Cheng, Yeung & Co. (“CYC”), filed a Summons seeking leave to be joined as the 2^nd respondent in these proceedings, and to contest on the issue of quantum.  Leave to do so was granted by Deputy Judge Gary C.C. Lam on 5 July 2022.

5.  Pursuant to the Order of HH Judge Levy dated 3 March 2023, the trial for assessment of compensation was fixed for 12 October 2023 with 1 day reserved.  The trial was heard before me.  At the trial, K&P maintained its absence, whereas Ms Fok attended in person.  The Board was represented by counsel Ms Flora Lam (“Ms Lam”).

6.  As Ms Fok was not legally represented, the trial was conducted in Punti. However, as I have explained to her at the start of the trial, the crucial documents, i.e., the joint medical expert report, and majority of the medical reports prepared by her treating doctors, are all prepared in English.  I thus find it appropriate to also give my written Judgment in such language.  In view of her educational background[2], I trust that she should have sufficient knowledge of English to peruse and understand it.  Ms Fok has agreed to such proposal.  That being so, I have explained to her that interpretation of the contents of this Judgment could be arranged for her if so required.

MS FOK’S REQUEST FOR ADJOURNMENT OF TRIAL

7.  On 11 October 2023, the court received a letter from Ms Fok, asking for the adjournment of the trial[3]. She gave the following 4 reasons:-

(1)  To get full review on documents submitted by CYC dated 6 October 2023, including over 500 pages of documents contained in the Assessment Bundle, with content that she had not received before (“1^st Reason”).

(2)  To obtain medical records from the Physiotherapy Department (“PD”) of Queen Elizabeth Hospital (“QEH”) between November 2020 and February 2021, as they are important documents and evidence in support of her claims (“2^nd Reason”).

(3)  To seek the approval of the court to remove certain information of an accident from the Assessment Bundle.  She said that some previous records obtained and filed should be for another personal injuries case, and these records were not being acknowledged as authorised documents by her (“3^rd Reason”).

(4)  To seek leave from the court to add documents to this case, namely medical records from the PD of QEH, documents from the Labour Department, and the receipt and invoices issued by H&P to her for their legal costs (“4^th Reason”).

8.  Much time was spent on the day of trial to deal with Ms Fok’s request and to understand the reasons she provided in support.

9.  For the 1^st Reason, I asked Ms Fok what documents contained in the Assessment Bundle that she had never received before.  She was unable to answer this question, as she claimed that she had not read all documents contained in the Assessment Bundle.  On such answer alone, the 1^st Reason is clearly unsustainable. Furthermore, the documents included in the Assessment Bundle were all previously disclosed either by H&P on her behalf, or by the Board.  It is uncertain why she had not read some of the documents, as alleged.

10.  At the trial, Ms Fok added that she had not received some documents from her former solicitors.  However, she was unable to identify these documents.  Come what may, the court could not accept such unilateral allegation against H&P without hearing from them.

11.  As to the 2^nd Reason, and the part of the 4^th Reason about adding the medical records from PD of QEH to this case, Ms Fok explained those records could show that there was an accident when she was undergoing physiotherapy with the PD of QEH on 15 December 2020.  Such accident had led to the delay of her recovery.  I see no relevance of these records to the present case.  On the assumption that what she said was true, the alleged accident could be a cause for another action against another party.  And the delayed recovery period, hence, the extra sick leave granted due to such medical incident, could even be taken out of the sick leave period that she now claims against K&P.

12.  Turning to the 3^rd Reason, the accident that she sought to remove from the present case forms the very basis of the Board’s contention.  As one could see in the later part of this Judgment, Ms Fok met with another accident on 13 July 2019 whilst travelling on board of a bus.  Under the 3^rd Reason, Ms Fok said that such accident should not be included in this claim.  This is exactly what the Board is asserting, i.e., substantial part of the sick leave claimed, and the loss of earning capacity alleged by Ms Fok, derived from the traffic accident, and should not be claimed against K&P.  When I asked whether, by the 3^rd Reason, she was accepting the Board’s case and their calculations of compensation that she should be entitled to, Ms Fok was apparently in a confused state of mind.  She uttered that there would only be 4 to 10 days’ reduction of the sick leave that she is claiming.  She later changed her stance, and argued that all sick leave claimed in this case had nothing to do with the traffic accident.  To support it, Ms Fok asked to adduce certificates which showed that 180 days of sick leave were granted for the injuries sustained at the traffic accident.  However, she would need time to locate those sick leave certificates.

13.  I have explained to Ms Fok that, for the court to consider her request for adjournment of the trial, on the basis that she has new documents to adduce, she should take out proper application by way of Summons supported by affirmation, with the additional documents exhibited therein.  As this is a very late application, there is no guarantee that, even after perusing the supporting documents, the Board would agree to or for the court to grant it.  Regardless of the result, such late application would inevitably lead to the trial being adjourned, and the costs thrown away due to it would be paid by her to the Board.  Time was then given for Ms Fok to consider her options; ultimately, she decided not to take out such application.

14.  Regarding the 4^th Reason, I would first repeat what I have said in §11 above about the medical records from PD of QEH.  Ms Fok did not identify what documents from the Labour Department that she wished to adduce on top of those already disclosed in her List of Documents and included in the Assessment Bundle.  As to the receipt and invoices showing the legal costs incurred by her are, if she was entitled to costs of these proceedings, matters for future taxation and need not be adduced at this stage.

15.  As I found that none of the 1^st to 4^th Reasons are valid to justify Ms Fok’s request for adjournment of the trial, I ordered to proceed with the trial.

THE ACCIDENT

16.  Coming back to the assessment exercise, as judgment on liability has been entered, the facts set out below are for reference and background information.

17.  Ms Fok was employed by K&P as an Admin. & Marketing Executive since 3 October 2018.  On 19 November 2018, she was instructed by her superior that a second-hand wooden shelf with sliding doors (the “Shelf”) would be delivered to the office of K&P on 20 November 2018, and she should accept the delivery.  Knowing that the Shelf was damaged, Ms Fok was reluctant to do so, especially since the Shelf would be placed near her work station.  Her protests fell on the deaf ears of her superior.  Misfortune befell on Ms Fok, when on 20 November 2018 at about 6:35 pm, she was instructed by another superior to retrieve a set of documents from the Shelf.  Whilst doing so, the 2 sliding doors of the Shelf suddenly came loose and fell on her left foot (the “1^st Accident”).  Although she was in pain, Ms Fok did not seek immediate medical attention, as there was a seminar scheduled for 7 pm on even day.  It was not until the next day, i.e., 21 November 2018, that she received treatment from Hong Kong Baptist University TST Chinese Medicine Clinic (“HKBU Clinic”).  Ms Fok was diagnosed with left toe contusion.

ASSESSMENT AND RE-ASSESSMENT BY THE EMPLOYEES’ COMPENSATION (ORDINARY ASSESSMENT) BOARD (THE “ASSESSMENT BOARD”)

18.  Ms Fok’s injury was initially assessed by the Assessment Board on 15 June 2021 and 14 July 2021.  In the Form 7 issued on 28 July 2021, she was found to have sustained left foot injury resulting in left foot pain.  The Assessment Board opined that she has suffered 1% loss of earning capacity (“LOEC”) permanently due to such injury.  Intermittent sick leave from 21 November 2018 to 1 December 2019 amounting to 619 days was found to be necessary.

19.  Unhappy with the above findings, Ms Fok made her objection, which led to a review on 17 November 2021.  In the Form 9 issued on 1 December 2021, the Assessment Board maintained the same assessments given in Form 7.  Notice of Appeal against Form 9 was filed on 30 December 2021.

20.  At the trial, Ms Fok expressed to the court that she now accepts the assessment of 1% LOEC.

21.  Pausing here, the Board had applied for leave to appeal against the Form 9 out of time on 5 September 2023.  The application came before me on 14 September 2023, which was not attended by Ms Fok[4]. The purpose of such application was to tie up the loose ends, as evidently, relying on the joint medical expert report, the Assessment Board’s opinion on Ms Fok’s LOEC and the period of sick leave found to be necessary would be contested by the Board.  I also observe that, by the time when the Board became a party to these proceedings, the 6-month time limit to appeal against the Form 9 had already expired.  At the end of the hearing, I granted leave to the Board to appeal against the Form 9 out of time.

MS FOK’S EVIDENCE

22.  Turning now to Ms Fok’s case, she adopted her witness statement filed on 3 March 2022 as her evidence-in-chief at the trial[5]. A summary of her narratives therein is provided below.

Working experiences

23.  Ms Fok was born on 6 February 1975, and was 43 years old at the time of the 1^st Accident.  Before her employment with K&P, Ms Fok had accrued about 10 years of experiences in the same field of work.  Her duties as an Admin. & Marketing Executive would include input of documents, general office works, communicating with clients, preparation for seminars, and purchasing office equipment.  She worked from 9:30 am to 6:30 pm on Mondays to Fridays, and half a day on Saturdays.  In return, she was paid on average HK$15,637 per month as her wages.

Treatments

24.  When she attended the HKBU Clinic on 21 November 2018, she could feel the toes of her left foot twitching.  Ms Fok said that the trembling affected the left side of her body, hence she was given cupping therapy on the back.  The next visit to HKBU Clinic took place on 23 November 2018[6]. At that time, the toes of her left foot were still twitching, and there was tightness on her left foot.

25.  Aside from the 2 visits to HKBU Clinic, Ms Fok received treatments from various general outpatient clinics (“GOPC”) due to persistent pain on her left foot.  They include: (1) the Family Clinic of North Lantau Hospital (“NLH”) on 25 July 2019; (2) West Kowloon GOPC on 3 September 2019; (3) Tsing Yi Cheung Hong GOPC on 16 September 2019, 28 November 2019, 10 December 2019 and 13 December 2019; (4) Ha Kwai Chung Polyclinic GOPC from 27 September 2019 to 9 January 2020; (5) North Kwai Chung Clinic GOPC from 23 December 2019 to 31 December 2019; and (6) Shek Kip Mei GOPC on 27 December 2019.

26.  Ms Fok also attended the Accident and Emergency Department (“AED”) of QEH on 4 January 2020 for the pain.  On that occasion, she was referred to the Orthopaedics and Traumatology Department (“OTD”) of QEH for treatment scheduled for 14 April 2020.  She was later given physiotherapy and occupational therapy.

27.  Three MRIs were taken on her left foot at the St. Teresa’s Hospital (“STH”) on 24 January 2020, 8 July 2020, and 16 November 2020.  On 10 February 2020, she was examined by the Neurosurgery Department (“ND”) of the Union Hospital (“UH”).  And finally, due to her insomnia problems, Ms Fok attended the West Kowloon Psychiatric Centre on 21 January 2021 and 26 January 2021.

28.  Ms Fok said, for the injury sustained in the 1^st Accident, she was granted sick leave sporadically for the period from 21 November 2018 to 13 July 2021, totalling 623 days.

Post-1^st Accident

29.  In support of her then appeal against the assessment in Form 9, Ms Fok emphasised on her left foot being perfectly healthy prior to the 1^st Accident.  She next pointed to the lengthy period of treatments and how they could not bring about full recovery of her left foot.  Ms Fok remarked that since the 1^st Accident, continuous walking for over 30 minutes would lead to needling pain to muscle near the second, third and small toes on her left foot.  She was also unable to walk whilst carrying weighty objects.

30.  As to how the 1^st Accident impacted her working ability, Ms Fok said that she resigned from her employment with K&P on 30 November 2018.  Before being employed by K&P, she had all along worked as a food blogger.  In July 2019, she was invited to take up such role again by a company.  However, her disability forbade resumption of the old trade, as the job would require her carrying shooting equipment to the restaurants, something that she could no longer endure. Ms Fok said she was unable to work since the 1^st Accident and until mid-July 2021.

JOINT EXPERT REPORT

31.  Ms Fok was examined on 22 September 2022 by experts in orthopaedic, Dr Fong Chi Ming (“Dr Fong”) and Dr Chan Wai Kit Terence (“Dr Chan”), respectively nominated by Ms Fok and the Board.  A joint expert report dated 6 December 2022 was compiled by the experts (“JER”).

32.  Additional information provided by Ms Fok at the examination was revealed in the JER:-

(1)  She received Master degree in Business Administration from the Hong Kong Polytechnic University.

(2)  During her employment with K&P, Ms Fok had to take photographs during events.  She said that the average weight of the camera and lens were about 3 kg.

(3)  The sliding doors which fell on her left foot were approximately 2 kg in weight, and they fell from a height of about 1 metre.

(4)  After the 1^st Accident, she had twitchiness and pain on her left foot, localised around the second toe.

(5)  She was given sick leave from 21 to 24 November 2018 by HKBU Clinic.  There was not much pain afterwards, and she could walk normally.  Ms Fok regularly received massage for her feet.  She was asymptomatic for around 6 to 7 months.

(6)  She became a helper at the restricted area of the Hong Kong International Airport (“HKIA”) since April 2022.

Pre-existing condition

33.  Ms Fok was aware of her bilateral flatfeet (扁平足) and deformity on both big toes since early 2018, i.e., before the 1^st Accident.

Another accident

34.  There was another accident on 13 July 2019.  She met with a traffic accident whilst on board a bus, during which her back and right ankle were hit by a falling luggage weighing approximately 20 kg (the “2^nd Accident”).  Ms Fok immediately felt pain on those areas; she said there was also pain coming from her left foot.  Ms Fok attended the AED of NLH on even day.  Since then, she had multiple visits at AED and GOPC, and was referred to physiotherapy, occupational therapy, and orthopaedic doctors for treatment.

Treatments received

35.  After reviewing the medical notes, Dr Fong and Dr Chan listed out the dates and the venues Ms Fok had received treatments from the AED and GOPC, and diagnosis made by the treating doctors.  Suffice it to say, not all diagnosis and treatments were related to her left foot injury.

36.  The experts then gave detailed descriptions of some of the treatment Ms Fok had received.

37.  First, they referred to Ms Fok’s visit to the Foot and Ankle Clinic of QEH, stemming from the complaint she had on 14 April 2020.  On that occasion, Ms Fok reportedly had bilateral pain and numbness at her feet, which was worse on the left side.  The diagnoses were bilateral flexible flatfeet and bilateral hallux valgus (拇趾外翻). Option of surgery was offered but turned down by Ms Fok.

38.  Second, the X-ray and MRI results from STH were examined.  The MRI reports showed that there was edema (水腫) in the plantar aspect (i.e., the bottom) of left forefoot, especially superficial to the 2^nd and 3^rd metatarsophalangeal joints (“MTPJs”), which could be caused by abnormal mechanics or trauma.

39.  Third, as to the visit at ND of UH on 10 February 2020, nerve conduction test performed on the left leg produced a result of “normal”.

40.  Fourth, the occupational therapist reported that Ms Fok was first referred to her by the Family Medicine Clinic of Caritas Medical Centre on 19 October 2019.  At that time, the chief complaints from Ms Fok were the pain at her back and left foot.  Work-hardening program was set for her with 2 sessions per week starting from 27 December 2019 until her discharge on 14 July 2020.  The therapists commented that Ms Fok had self-perceived barriers in return to work such as fair tolerance in walking and limited physical capacity for manual exertional task.  That being so, her condition was viewed as marginally match her job demand, and she could likely manage certain tasks if special arrangement was made.

41.  Ms Fok returned for another round of occupational therapies from 26 February 2021 to 26 April 2021, with referral from the OTD of QEH.  The only complaint this time was left foot pain.  Although 2 sessions per week were arranged for her, it was reported that Ms Fok had low attendance.  It was also remarked that she was keen to resume previous industry despite persistent of the pain.  The therapist concluded that Ms Fok’s ability matched with her job demand without significant limitation.

42.  Fifth, Ms Fok received 2 courses of physiotherapy at QEH.  For the first course, she had 16 sessions of therapy between 22 August 2019 and 10 December 2019.  She was referred by the AED with diagnoses of back and right ankle pain. On 3 October 2019, there was a new referral with diagnosis of neck pain.  At the end of the first course, Ms Fok said she felt grossly improved 80-90%.  She was not treated for foot pain.

43.  She had 15 sessions of physiotherapy for the second course between 17 September 2020 and 2 February 2021.  This time, the referral came from the OTD of QEH, with a diagnosis of flatfeet.  Ms Fok complained that there was left medial foot pain. Examination revealed bilateral flatfeet, hallux valgus and mild edema at the left 1^st, 2^nd, and 3^rd MTPJ. It was also shown that she could walk and climb stairs independently.  On 24 November 2020, there were two new referrals from OTD with diagnosis of triggered left middle finger.  At the end of the second course, it was said that she felt 70% improvement; she could walk for 1.5 hours and 4 flights of stairs.

Joint examination by experts

44.  At the time of the joint examination, Ms Fok reported that she could walk for 2 to 3 hours without aid.  However, she would start having left foot pain and twitching after walking for more than an hour.  Her left leg weakness prevented her from carrying objects which weigh more than 3 kg.  Hence, she could not resume her previous duty as a photographer and event organiser.  On 1 April 2022, she became a helper at the restricted area of the HKIA.  Her duty would require her to stand up to 6 hours, but she could manage it without much problem.

45.  Both experts agreed that the physical examination performed on Ms Fok revealed no abnormality, save for bilateral flexible flatfeet, bilateral hallux valgus with bunion, and diffuse tenderness along plantar side of 2^nd metatarsal, MTPJ and the 2^nd toe.  Having seen the surveillance video and its report, the experts agreed that Ms Fok could be seen walking normally on 18 August 2022, 22 September 2022, and 26 September 2022.  She was seen carrying a big bag and umbrella on 18 August 2022, and had her backpack on and carrying many shopping bags in the evening of 22 September 2022.

Diagnosis and causation

46.  The experts diagnosed Ms Fok to have suffered from 2^nd toe contusion after the 1^st Accident, with pre-existing hallux valgus and 1^st MTPJ osteoarthritis (presented with transfer metatarsalgia). Both experts opined that the pre-existing hallux valgus led to the excessive loading being transferred from the big toe to other metatarsal heads, and the pain is experienced under one or several lesser rays.  The natural progression of the pre-existing condition would have brought about Ms Fok’s present state at some stage of her life.  They also opined that this is the reason for her recurrent left plantar foot pain.

47.  Dr Fong added that Ms Fok should belong to category (ii) in terms of her pre-existing condition, i.e., the deformity is expected would have brought her present state within 2 to 7 years after the 1^st Accident.

48.  Dr Chan highlighted the inconsistency between what Ms Fok told him at the examination (immediate left foot pain after the 2^nd Accident) and what the medical records revealed (the complaint came 2 weeks after the 2^nd Accident).  He found such gap in time to be peculiar should the pain be tied with an injury or trauma.  Dr Chan also opined that her left foot pain had no connection with the 1^st Accident.

Treatment and prognosis

49.  Neither expert could comment on the treatment Ms Fok received after the 1^st Accident, as they said there was not much information about it.  They remarked, however, that she was asymptomatic for more than 7 months afterwards, forming the basis for them to believe that the left 2^nd toe contusion had recovered spontaneously.  The objective findings supported that the prognosis of her left foot condition should be excellent.  The experts concluded that no further treatment would be required; no permanent disability is expected.

Assessment on sick leave and working capacity

50.  Both experts agreed Ms Fok should be able to resume her pre-1^st Accident occupation as a marketing executive.

51.  Sick leave is an area where the experts significantly differed in their opinions.  Dr Chan considered only the sick leave granted by HKBU Clinic would be necessary and appropriate (from 21 to 24 November 2018).  The other sick leave granted after the 2^nd Accident should be unrelated to the 2^nd toe contusion suffered at the 1^st Accident.

52.  Dr Fong, conversely, endorsed on all sick leave granted by the treating doctors from 21 November 2018 to 13 July 2021, linking them to the injury suffered under the 1^st Accident.

Assessment of impairment

53.  Adopting the “Guides to the Evaluation of Permanent Impairment”, 6^th Edition, Table 16-2, Dr Chan is of the view that Ms Fok’s condition should be assigned to class 0, with 0% lower extremity impairment.  He also gave a grade of 0% on the whole person impairment (“WPI”).

54.  Without citing any journals, Dr Fong graded Ms Fok’s WPI at 2.5%, allowing a 20% reduction due to the pre-existing condition, giving a final grade of 2% for WPI.  Dr Fong also assessed Ms Fok’s LOEC to be 2%.

DISCUSSIONS

55.  As a matter of preview, I have decided to dismiss Ms Fok’s claim after considering the evidence before me.  My reasons are given below.

The lack of treatment after the 1^st Accident and the extent of injury

56.  I agree with the Board’s suggestion that the effects of 2^nd toe contusion Ms Fok suffered from the 1^st Accident should have subsided and healed after the last day of sick leave granted by HKBU Clinic, i.e., on 24 November 2018.

57.  First, it is incontrovertible that, after the 1^st Accident, Ms Fok had only received 2 treatments from HKBU Clinic on 21 and 23 November 2018.  She did not receive any medical treatment until 13 July 2019 when the 2^nd Accident happened, and no further medical treatment on her left foot until 27 July 2019, 2 weeks after the 2^nd Accident.

58.  Second, for the same reason, the experts commented that Ms Fok should have recovered from such injury spontaneously.

59.  Third, Dr Chan opined the left foot pain that Ms Fok complained of after the 2^nd Accident had nothing to do with the 1^st Accident. There was no disagreement from Dr Fong on this.  It is also telling that both experts agreed Ms Fok’s recurrent left plantar foot pain was due to her pre-existing condition.

60.  Fourth, after she resigned from her employment with K&P on 30 November 2018, she could not resume work until mid-July 2021.  Ms Fok, in her witness statement, painted the picture that it was due to the 2^nd toe contusion she suffered from the 1^st Accident.  However, she agreed at the trial that she was also hesitant to find a new job because of the restraint of trade clause in the employment contract with K&P, which would remain effective for a period of 6 months after termination of the contract[7].  Thus, one would wonder whether her failure to return to fruitful employment between 30 November 2018 and 31 May 2019 was due to the injury or the restriction imposed under such contractual clause.  On this point, I note that shortly after expiry of such clause, Ms Fok met with the 2^nd Accident on 13 July 2019, and, perhaps more than a mere coincidence, her unemployment continued.

61.  All these indicated that the 2^nd toe contusion suffered from the 1^st Accident having nothing to do with the discomfort that Ms Fok felt on her left foot since the 2^nd Accident.

Ms Fok’s rebuttal

62.  Ms Fok argued at the trial that she had continued to suffer from the 2^nd toe contusion, as she had persistently treated her pain by massage.  I disagree.  The massage allegedly performed on the left foot are not supported by any documentary evidence.  Hence, it cannot be checked as to the veracity of such assertion, nor could one examine whether the massage sessions, if any, focused solely or primarily on her left foot.  In addition, the effectiveness of the same in aiding the recovery from 2^nd toe contusion, or in relieving the pain due to such injury, cannot be determined.  In this regard, I see that neither expert had in the JER included the massage Ms Fok received as a form of medical treatment.  Moreover, should her condition continued to be dire as alleged, I see no reason for her not to receive conventional treatment from licenced doctors (Western or Chinese) between 24 November 2018 and 25 July 2019, as she did for her ailments after the 2^nd Accident.  Tellingly, Ms Fok did not opt for massage over conventional medical treatment from licenced doctors after the 2^nd Accident.

63.  I also reject her refutation that not all pains and injuries required proper medical attention, for the reason she gave.  Ms Fok used the example of a chef whom experienced soreness after work; the chef would opt for massage rather than medical treatment to ease the soreness.  In my view, she was comparing apples to oranges.  

64.  At trial and in her closing submissions, Ms Fok relied on some of the sick leave certificates, medical notes, and records, to support her claim that she had continued to receive treatment on her left foot due to the 1^st Accident.  Perusal of these documents do reveal reference to the left foot injury being suffered on duty on 20 November 2018.  However, one should know that Ms Fok did not receive medical treatment on her left foot from the hospital immediately or shortly after the 1^st Accident.  In fact, she did not do so until 2 weeks after the 2^nd Accident.  Hence, the information must have been provided to the treating doctors by Ms Fok herself.  In this regard, I echo on what DDJ Leong (as HH Judge Leong then was) said in the case of Gurung Kamala v Hong Wei Limited[8]:-

“78.  However, when reading medical documents like records and reports, the court must be aware that it is not the usual duty of the attending doctors (and therapists) to judge whether a patient’s subjective complaints (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.

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.” (emphasis added)

65.  I also see that the Court of Appeal had in 2 different cases given the same caution against over-reliance on the medical records and sick leave certificates.  The first Court of Appeal case, Tam Fu Yip Fip v Sincere Engineering & Trading Co. Ltd has already been cited by DDJ Leong in the passages quoted above and I shall not repeat it here.  In Choy Wai Chung v Chun Wo Construction & Engineering Company Limited[9], Rogers VP said:-

“9.  On this appeal Mr Chan SC, who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates.  In my view the judge was perfectly entitled to reject these as an indication of the plaintiff’s inability to work for the reasons which she gave.  It was for the judge to decide whether on the evidence the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work.  Obviously in doing so the judge must have regard to the medical evidence.  Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates.  As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.” (emphasis added)

66.  Notwithstanding what the sick leave certificates and medical notes and records showed, I observe that Ms Fok had never received any physiotherapy on her left foot, despite 2 courses of the same were undertaken by her.  It is irreconcilable with her allegation that she had persistent pain due to the 2^nd toe contusion suffered from the 1^st Accident.

67.  In addition, it is apparent that both experts did not include the treatment and therapy received by Ms Fok after 23 November 2018 were treatment for the 2^nd toe contusion, as they had expressly stated that they could not comment on this topic without much information.  Surely, the experts would have much to say about their reasonableness and sufficiency should the experts opine the treatment and therapy received since the 2^nd Accident are relevant.

68.  Taking a holistic view of the evidence before me, I am not persuaded that the medical records, notes, and sick leave certificates relied upon by Ms Fok, could overcome the undisputable fact that she had received no medical attention on her left foot between 24 November 2018 and 27 July 2019.

69.  Apart from the above, Ms Fok has in her closing submissions criticised the records[10], findings and opinions of the experts, including those rendered by Dr Fong.  In countering their findings and opinions, she gave evidence in the closing submissions, which are neither included in her witness statement nor her testimony at trial.  This is not allowed.  I should therefore disregard them.

70.  Ms Fok resumes the blame game in her closing submissions, complaining that the information regarding the 2^nd Accident should never have been disclosed by H&P in this case.  I disagree. If H&P had chosen to follow Ms Fok’s instruction and refused provision of these documents to the Board, they would have failed to discharge their duties as officers of the court.  In this regard, I shall refer to what HH Judge Andrew Li said in the case of Cheung Ka Man v Wong Yu Huen[11]:-

“12. It is important to note at this juncture that nowhere in the SOC or the SOD filed by the plaintiff in this case that she or her solicitors had ever mentioned about a second traffic accident which occurred to her on 15 November 2018, ie within around 6 weeks from the [2nd Accident]. In the 2nd Accident, she apparently had suffered from very similar if not identical injuries, ie a whiplash. On that occasion, she had consulted Dr Wong for the injuries sustained by her in that accident also. It is also important to note here that sick leaves were given to the plaintiff by Dr Wong covering the period from 2 October 2018 to 18 July 2019 on a continuous basis. It was not clear by reading those sick leave certificates as to whether they covered injuries resulting from the 1st Accident or the 2nd Accident or both. Nonetheless, these are the sick leaves relied on by the plaintiff and her solicitors to claim for her loss and damages throughout the present proceedings and apparently for the 2nd Accident also when they negotiated with the insurer’s legal representative of the other vehicles for a settlement.

13. Further, in the list of document filed by the plaintiff on 12 March 2021, none of the documents disclosed by the plaintiff has mentioned anything about the 2nd Accident.

14. In addition, the plaintiff has never mentioned anything about the 2nd Accident in her witness statement filed in the present proceedings, including the injuries she had sustained and the subsequent settlement she has managed to reach with the insurer’s solicitors of the other vehicle, without having the need to issue separate proceedings for the same.

15.  It was not until 10 August 2021 when the defendant’s solicitors wrote to the plaintiff’s solicitors asking for an updated report from Dr Wong that they had found out for the first time from Dr Wong’s report that in fact the plaintiff had met with the 2nd Accident on 15 November 2018…

…

The plaintiff’s refusal to include the documents disclosed/discovered in relation to the 2nd Accident in the trial bundle

…

40.  The Trial Bundle however did not contain all the latest documents disclosed by the parties since the last checklist review hearing from Master Matthew Leung on 3 May 2022.  In particular, the plaintiff refused to enclose the correspondence between the parties in relation to the injuries sustained by her in the 2nd Accident and her claim in relation to the 2nd Accident.

…

44.  It is not clear where the plaintiff’s solicitors have got the idea from that inclusion of relevant and already discovered documents in the trial bundle need to have leave of the court.  Nonetheless, the plaintiff’s refusal to include the already disclosed/discovered documents in the Trial Bundle caused the defendant’s handling solicitors to prepare an affirmation to enclose the above correspondence…

…

101.  Let me start with my findings by saying that this is by far the worst case I have come across in my 10 years sitting on the bench of how a solicitor, who is supposed to be an officer of the court, had deliberately and consciously tried to hide a second accident from the court and from his opponents (in both claims).  Further, he tried to grossly inflate his client's claim to such an extent that it renders the whole exercise of pleadings and/or setting out a “without prejudice” claim to his opponent rather superfluous and meaningless.  In addition, he had failed to make proper discovery of documents in relation to the other accident both in the present claim and the other claim resulting from the 2nd Accident.  Last but not the least, he tried to hide the husband and wife relationship between him and the plaintiff from his opponent and the court when his financial interest may be at stake.

…

(A)  Deliberate and conscious efforts on the part of the plaintiff’s solicitor to hide the 2nd Accident from the court and the defendant

103.  Judging from the history of this case, there is no doubt in my mind that there was a deliberate and conscious effort on the part of the plaintiff’s handling solicitor in trying to hide the 2^nd Accident from the defendant and the court in this case.  Likewise, I also find that there was such a deliberate and conscious effort on the part of the plaintiff’s solicitor to hide the 1^st Accident from ONC, ie the solicitors who acted for the insurer of the driver of the other vehicle in the 2^nd Accident.

104.  First of all, as Ms Wu from the defendant’s solicitors in her affirmation has stated, “up to the date of the trial scheduled for 7^th November 2022, the plaintiff did not mention anything about the 2nd Accident in the pleadings and her witness statement”: See para. 29 of Wu Yaqing’s affirmation filed on 20 December 2022.

105.  Since the 2 accidents happened within about 6 weeks from each other, I simply cannot imagine when the plaintiff’s solicitor issued the writ and filed the SOC & SOD in January 2021 in this case, he would not have in mind the 2^nd Accident, in particular the very pertinent fact that the injuries sustained by his wife in the 2^nd Accident were very similar if not identical to those sustained by her in the 1st Accident.  Yet, he had, in my judgment, deliberately chosen not to mention this in the SOD which was filed on 25 January 2021 and later in the RSOD which was filed on 6 January 2022.” (emphasis added)

71.  In our case, the 2^nd Accident is not mentioned in the Amended Application and Ms Fok’s witness statement.  Existence of it was indicated in the medical reports, and it was upon the Board’s request that the documents relating to the same were provided to and subsequently disclosed by the Board.  With these documents, thus the details of 2^nd Accident, one could now realise why Ms Fok had resumed medical treatments and received sick leave after a halt of more than 7 months.  Without knowing about the 2^nd Accident, at best, the court could be left in a blank.  At worst, the court could be misled to believe that all these subsequent treatment, therapy, and sick leave, were somehow connected to the 2^nd toe contusion suffered at the 1^st Accident, especially in view of the cause of injury recorded in the medical documents that Ms Fok sought to rely on as stated in §64 above.

LOEC and sick leaves

72.  As I have summarised in the above, these are areas where the experts differed in their opinions.  I prefer Dr Chan’s for the reasons below.

73.  First, I do not understand the bases on which Dr Fong concluded that all sick leave endorsed by the Assessment Board were appropriate and necessary.  He had not given the reasons for coming to this conclusion.  Dr Fong had not said, and indeed there is no indication, that the Assessment Board was aware of the 2^nd Accident, and that all sick leave (save for the ones granted by HKBU Clinic) presented by Ms Fok were granted by the hospitals and clinics after it, when they made their assessments.

74.  In addition, Dr Fong’s opinion on sick leave came after:

(1)  learning from Ms Fok that there was not much pain after the treatment from HKBU Clinic, that she could walk normally, she was asymptomatic for 6 to 7 months, and she did not seek other medical advice nor treatment on the left foot afterwards;

(2)  not disagreeing with, and saying anything to refute, Dr Chan’s opinion that Ms Fok’s left foot pain is unrelated to the 1^st Accident;

(3)  agreeing with Dr Chan that Ms Fok’s recurring left plantar foot pain is caused by her pre-existing hallux valgus deformity; and

(4)  reading Dr Chan’s reasoned rejection on endorsing all sick leaves aside from those granted by HKBU Clinic, but withheld giving his own reasons to come to an opposite conclusion.

75.  Although he had commented that Ms Fok should belong to category (ii) in terms of her pre-existing condition, i.e., the deformity is expected to bring about her present state within 2 to 7 years after the 1^st Accident, Dr Fong did not expressly point to the 1^st Accident having ignited or aggravated the pre-existing condition and the pain that could come with it.  Again, even if he did take this line of argument in justifying his opinion, the lack of medical treatment received by Ms Fok, and her being asymptomatic for over 7 months after 24 November 2018, negated it.

76.  Unlike Dr Fong, Dr Chan had clearly conveyed the reasons for his conclusion under this head. I agree with his reasons.

77.  As to Dr Fong’s assessment on LOEC, again I feel dumbfounded on how he reached his conclusion against what I have highlighted in §§74 and 75 above.  Most importantly, his assessment of Ms Fok having 2% WPI contradicted his own agreement with Dr Chan that Ms Fok has no permanent disability arising out of the 2^nd toe contusion suffered at the 1^st Accident.  There is neither reference to any medical journals nor reasons given by Dr Fong in support of such assessment.

Summary

78.  Considering the discussions above, I find:-

(1)  Ms Fok suffered from 2^nd toe contusion on her left foot due to the 1^st Accident;

(2)  the sick leave granted by HKBU Clinic from 21 November 2018 to 24 November 2018 sufficed for her recovery from the said injury;

(3)  she did not receive medical treatment and therapy on her left foot, in particular, for her 2^nd toe contusion, after 24 November 2018, because she had sufficiently recovered from the same by then;

(4)  the medical treatment and therapy received, and sick leave granted by the hospitals and clinics, after the 2^nd Accident, have no connection with the 1^st Accident;

(5)  the sick leave to be allowed for the 1^st Accident should thus be limited to 4 days, i.e. from 21 November 2018 to 24 November 2018;

(6)  equally, any disability that she suffered after the 2^nd Accident, has no connection with the 1^st Accident; and

(7)  she suffered no permanent disability, and no LOEC, for her 2^nd toe contusion caused by the 1^st Accident.

Section 18 appeal

79.  Based on my findings above, I allow the section 18 appeal by the Board on the LOEC (from 1% to 0%) and on sick leave (from 619 days to 4 days).

80.  With these findings, I will now proceed to consider Ms Fok’s claims under sections 9, 10 and 10A of the ECO.

Claim under section 9

81.  As I have found there is no LOEC, no compensation would be awarded to Ms Fok under this head.

Claim under section 10

82.  At the trial, Ms Fok clarified that her monthly basic salary was HK$15,000, and the difference of HK$637 came from the overtime pay on average each month that she received from K&P.  Her average monthly wages of HK$15,637 were adopted by K&P when they calculated the 4/5 periodical payments for her.

83.  The Board agreed to adopt the same figure for the calculation under this head.

84.  As her sick leave are reduced to 4 days, a sum of HK$1,667.95 should be awarded (HK$15,637 x 4/30 x 4/5).

Claim under section 10A

85.  For the same reasons, I will only allow claim for the medical costs expended for the treatment she received from HKBU Clinic.  For this, Ms Fok claimed for HK$120 in her witness statement.  Although she has not disclosed any receipt for the payment, the Board is ready to accept such claim.

86.  At trial, Ms Fok alleged that she should have paid over HK$500 to HKBU Clinic.  The HK$120 only covered the costs for medication, with the balance representing the consultation fees.  I do not accept this.  If that was true, there is no reason for her not to include the balance in her witness statement. In the absence of any documentary proof, Ms Fok could only rely on her memory as to the amount that she had indeed paid to HKBU Clinic in November 2018.  It is hard to believe that she had a better recollection of that at trial, i.e., on 12 October 2023, than at the time when her witness statement was made, i.e., on 28 February 2022.

87.  In her closing submissions, Ms Fok claimed that the receipts had been provided to H&P, but they failed to disclose the receipts in this case. She added that H&P had told her that the medical fees claimed in the witness statement could be adjusted at a later time. Again, the court could not accept such unilateral allegation against H&P without hearing from them.

88.  Come what may, Ms Fok confirmed at trial that the costs incurred for the medical treatments from HKBU Clinic on 21 and 23 November 2018 had been fully paid by K&P.  Thus, regardless of her complaints against H&P, no award would be received by her under this head.

The compensation to be awarded

89.  For the above reasons, compensation that should be awarded to Ms Fok are as follows:-

(1)  Section 9	Nil
(2)  Section 10	HK$1,667.95
(3)  Section 10A	Nil
	HK$1,667.95
	==========

Periodical payment received from K&P

90.  Ms Fok agreed that K&P had given her HK$159,705.89, representing 383 days’ worth of periodical payment[12]. This amount should be used to completely set-off the sum awarded under section 10[13].

CONCLUSION

91.  Based on the above, no compensation would be awarded to Ms Fok.  Her claim is therefore dismissed.

92.  Costs should follow the event.  Although it could be said that, by its Answer to Notice, K&P has succeeded in its defence of Ms Fok’s claim, K&P has no involvement in the proceedings since 28 May 2021.  Hence, I would make an order nisi that Ms Fok should pay the costs of K&P, including all costs previously reserved, up to 29 June 2021, to be taxed if not agreed.  There be no order as to costs between Ms Fok and K&P from 30 June 2021 up to the date of this Judgment. I will also direct that a copy of this Judgment be sent to PWKL.

93.  As to the costs between Ms Fok and the Board, I shall follow the decision in Tsui Ming Ki v Aman Group Limited t/a Aman Moving Services & Ors[14] and order on nisi basis that Ms Fok should pay the costs of the Board, including all costs previously reserved, with certificate for counsel, to be taxed if not agreed.

94.  The orders nisi above shall become absolute unless any party applies to vary it within 14 days of this Judgment.

95.  I thank Ms Lam for her assistance.