YEUNG HO MAN v. SHUM KIN LEUNG AND ANOTHER

Summary (English)

Summary (Chinese)

HCPI 547/2017

[2020] HKCFI 2531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 547 OF 2017

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J U D G M E N T

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1.  This is an assessment of damages for personal injuries suffered in a road traffic accident that occurred on 27 June 2014. At the time of the accident, the plaintiff, who was born on 1 October 1959, was about 54.5 years of age. Liability was admitted on 25 November 2015, before proceedings were commenced on 29 May 2017. Interlocutory judgment for damages to be assessed was entered on 8 June 2017 against the 1^st and 2^nd defendants. At the time of the accident, the 1^st defendant was the driver of the 2^nd defendant’s bus bearing registration number HS539.

2.  The plaintiff was legally aided. However, legal aid was discharged on 22 May 2020 and the plaintiff appeared at trial in person. The defendants were represented by Mr Simon Wong of counsel.

3.  The trial was set down in the fixture list for four days commencing on 18 June 2020.  Prior to the commencement of trial, I had received opening statements from the plaintiff and the defendants.  On the morning of the trial on 18 June 2020, I received into evidence the assessment bundles comprising of the following sections:

A.  Pleadings and orders [A/1-92];

B.  Witness statements [B/93-144F];

C.  Medical reports [C/145-201];

D.  Experts reports [D/202-336];

E.  Other documents [E/337-492B] – this section was subsequently enlarged to include further documents attached to the plaintiff’s closing submissions (including their English translations) at E/351A-351W, 248A, and 359A.  These documents, which had been disclosed previously in the plaintiff’s list of documents filed on 27 November 2017, ought to have been included in the assessment bundles at the outset; and

F.  Medical records - the section was subsequently reduced to a handful of documents after the medical records, which were not relevant to the issues before me, were removed [F/543-550, 573, 901-3, 910-911].

Pursuant to directions made previously, the experts’ reports were adduced into evidence without the need to call the makers thereof.

4.  The plaintiff elected to give evidence in Putonghua. He confirmed the truth of his 2 witness statements made on 13 February 2018 [B/93-128] and 12 October 2018 [B/129-139] and he relied on them as his evidence in chief.  He also confirmed the truth of the factual statements that he had made in his opening statement.  He then gave further evidence complaining that what the doctors said to him orally was very different from the written medical reports; that lot of facts stated orally by the doctors had not been reduced into writing; and that they did not want to bear the responsibility of stating how serious his injuries were (Transcript/Day1/13A-17G).

5.  At this point I was about to adjourn for the morning break when the plaintiff complained to me about discomfort in his head and that he was not able to go on.  I suggested to the plaintiff that he should take a rest during the morning break. When the hearing resumed, the plaintiff complained that he was feeling worse and that he had forgotten to bring his medicine with him.  As he was residing in Kowloon City, I suggested to him that he should return home to take a rest and to take his medicine, and to return to court at 2:30 pm.  I then adjourned the trial to 2:30 pm.  Prior to the resumption of the proceedings at 2:30 pm, my clerk was informed that the plaintiff had been taken by ambulance to Queen Elizabeth Hospital (“QEH”) for medical treatment.  At about 2:40 pm, I adjourned the trial to Monday 22 June 2020 at 10:00 am, rather than Friday 19 June 2020, as I was concerned that costs might be wasted if the plaintiff was admitted to hospital and was unable to come to court the next day.

6.  On 19 June 2020, my clerk received a telephone call from Madam Zhang Qiongyun, the wife of the plaintiff, and was informed by her that the plaintiff had been admitted to QEH on 18 June 2020 and, further, that she was told by a doctor from QEH that the plaintiff was unlikely to be discharged on 22 June 2020.  My clerk communicated this information to the defendants’ solicitors who suggested that the trial should be adjourned to 23 June 2020.  I acceded to this suggestion and adjourned the trial to Tuesday 23 June 2020 at 10 am.

7.  On 22 June 2020, Madam Zhang Qiongyun telephoned my clerk again and informed her that she was told by a Dr Lau of the Department of Psychiatry of QEH that the plaintiff needed to be hospitalized for a longer period of time and she did not know when he would be discharged.  I then adjourned the trial to 3 – 5 August 2020 (3 days reserved).  The parties were notified accordingly.

8.  At the same time that I adjourned the trial to 3 – 5 August 2020, I also directed that:

“(1) Leave granted to the Defendants to adduce the Investigation Report prepared by Verity Consulting Limited dated 12 May 2020 together with a DVD and 4 pages of photos extracted from the surveillance video taken on 7 May 2020 at the resumed trial;

(2) Leave to the Plaintiff to file a further supplemental witness statement to respond to the Investigation Report prepared by Verity Consulting Limited dated 12 May 2020 together with a DVD and 4 pages of photos extracted from the surveillance video taken on 7 May 2020 on or before 24 July 2020.” 

On 18 June 2020, the defendants had made an application for leave to adduce this surveillance evidence which application the defendants withdrew upon my indication that I was unlikely to grant it. The last-minute admission of this evidence would have resulted in an adjournment of the trial as the plaintiff had to be given the opportunity to respond to the new evidence. However, I granted the application on 22 June 2020 as the trial was being adjourned for over a month which gave the plaintiff sufficient opportunity to respond to this factual evidence that was probative and relevant.

9.  The trial resumed on the morning of 3 August 2020. The plaintiff was reaffirmed in Putonghua and he confirmed the truth of his additional statement of 23 July 2020 which he had sent to court prior to the resumption of the trial (Transcript/Day2/22P-23K). The plaintiff was then cross examined by counsel for the defendants who put the defendants’ case to him and put questions to him relating to certain photographs taken at the scene of the accident and to certain previous statements he had made (Transcript/Day2/23M-32D).

10.  At about 11 am on the morning of 3 August 2020, I found the plaintiff guilty of a contempt in the face of the court.  He had continued to use his mobile phone in court to dial someone despite my warning to him not to use his mobile phone in the court room.  I ordered that he be sent down to the cells until 4 pm (Transcript/Day2/32E-33Q).  However, he claimed to be unwell and an ambulance was called for him.  He was conveyed to the Accident and Emergency Department (“AED”) of Queen Mary Hospital (“QMH”), accompanied by 2 bailiffs of the High Court.  He was admitted to QMH on the afternoon of 3 August 2020.  At about 4 pm, I released the plaintiff from the custody of the bailiffs and I released the bailiffs from their custodial duty (Transcript/Day2/33S).

11.  As his contempt was unrelated to the issues at trial, I adjourned the trial to myself to resume at 10 am on Monday, 10 August 2020.  I also indicated that I might adjourn it to a later date if the plaintiff was still in hospital on that day (Transcript/Day2/34A, J). However, the plaintiff was discharged from QMH on 5 August 2020.

12.  The trial resumed and was quickly concluded on 10 August 2020 when counsel for the defendants informed the court that he had no further questions to ask the plaintiff. He had already put the defendants’ case to the plaintiff on the second morning of the trial. The plaintiff then completed his evidence.  The plaintiff’s wife, Madam Zhang Qiongyun, was unable to come to court to give evidence.  However, the defendants’ counsel agreed that her witness statement could be received into evidence as a hearsay statement [B/140-144F]. That completed the plaintiff’s case.  Counsel for the defendants then informed me that the defendants were not calling any evidence and would not rely on the surveillance evidence. The defendants would only rely on the documentary evidence in the assessment bundles and the experts’ reports, in particular. I then gave directions for closing submissions to be lodged (Transcript/Day3/1A-6A). Written closing submissions were received from the defendant on 12 August 2020 and from the plaintiff on 18 August 2020.

Overview of the Parties’ Cases

13.  The defendants’ closing submissions contains a succinct overview of the parties’ cases which I set out below:

“2. P’s case [A/75/(r)] is that as a result of the Accident he suffered from multiple serious physical injuries which included those to his face, neck, back, right upper limb, and right lower limb. Significantly, he claimed that he had weakness in right upper limb and total paraplegia of right lower limb and is now wheelchair bound. He also claimed to have suffered from hearing loss on both ears, impairment to both eyes, urinary urgency/incontinence and had dizziness which caused him fall frequently. Mentally, he had persistent insomnia, poor mood, nightmare, auditory hallucinations, flashbacks and vivid recollection of the accident, and had psychotic depression and post-traumatic stress response. He said he is totally dependent on his wife now. P claims damages for PSLA, pre-trial and post-trial loss of earnings and loss of earning capacity. He also claims special damages and damages for future expenses for medical treatments and purchasing aids and equipment. Further, he claims costs of care and attention on the basis that his wife had to quit her jobs in order to look after him.

3. Ds’ case is that P suffered from no more than contusion to his face and mild soft tissue injury to his neck, and those injuries resolved within one month, and that P grossly exaggerated his symptoms and is a malingerer.

4. The parties’ respective quantum figures are summarized as follows:

Head of claim	Plaintiff’s figures (HK$)	Defendants’ figures (HK$)
PSLA	1,500,000	100,000
Pre-Trial Loss of Earnings	1,549,656	57,000
Post-Trial Loss of Earnings	2,665,560	Nil
Pre-Trial Loss of MPF	77,483	2,850
Post-Trial Loss of MPF	133,278	Nil
Loss of Earning Capacity	456,000	Nil
Pre-Trial Expenses	60,000	5,000
Pre-Trial Costs of Care and Attention	1,296,000	Nil
Post-Trial Costs of Care and Attention	2,002,320	Nil
Future Aids & Equipment and Miscellaneous	1,026,550	Nil
Sub-total:	10,766,847	164,850
Less: [Employees’] Compensation received	(652,808.33)	(652,808.33)
Total:	10,114,038.70	Nil

The Documentary Evidence

14.  At the time of the accident on 27 June 2014, the 1^st defendant was the driver of the 2^nd defendant’s bus bearing registration number HS539.  He was convicted of careless driving on 27 January 2015 in respect of this occurrence and fined $900.

15.  According to the statement made to the police by one, Chan Wai Lun, on 13 August 2014 [E/342-343D], the accident occurred at about 2:45 pm on 27 June 2014.  The place of the accident was the Kowloon bound lane of Tsuen Wan Road, outside Wing Kin Industrial Building. Four vehicles were involved in the accident, namely, a medium goods vehicle bearing registration number RJ5615, which he had been driving, together with trailer bearing number 46888T which sustained damage to its rear; a private car bearing registration number RU2729 which sustained damage to its front and rear; a private car bearing registration number HJ3269 which sustained damage to its front and rear; and the 2^nd defendant’s bus bearing registration number HS539.  At the time the weather was fine, the road surface was dry and the traffic was smooth. Tsuen Wan Road at the location of the accident was a three lane one-way carriage way: the left lane merged with the branch lane and the second and third lanes were separated by double white lines.  The speed limit was 70 kmh.  At the time, he was driving at about 40 kmh on the second lane.  When he approached the place of the accident, the vehicle in front suddenly reduced speed to almost stopping and appeared to change lane.  He wanted to change lane in order to avoid it but there were vehicles on the other lane.  He slowed down to several kilometres per hour and then stopped for 2 to 3 seconds.  During this time the rear of his vehicle was bumped by the second vehicle.  He was not injured.  When he alighted from his vehicle he saw that the rear of his trailer was damaged whilst the three other vehicles were stopped behind his vehicle on the same lane.  All the vehicles were damaged and the drivers of the second and third vehicles were injured.  The police later arrived to deal with the matter.

16.  The driver of the second vehicle, one, Chan Ka Lun, also made a statement to the police on 15 August 2014 about this occurrence [E/346-347D]. His description of the time and location of the accident, and the weather and the traffic at that time was the same as Chan Wai Lun’s description. At the time he was driving on the second lane at about 60 kmh.  When approaching the place of the accident he saw that the vehicle in front stopped with its hazard warning lights on.  He switched on his hazard warning lights and reduced the speed to several kilometres per hour following the vehicle in front.  He then stopped for 1 to 2 seconds but was bumped by the vehicle travelling behind him which caused his vehicle to move forward and hit the rear of the trailer.  He suffered injury to his back. When he got off from his vehicle to check, he saw that the front and rear of his vehicle was damaged, the third vehicle was stopped behind his vehicle, and the bus was stopped behind the third vehicle.  The driver of the third vehicle was also injured. The police later arrived at the scene.

17.  The plaintiff also made a statement to the police on 13 August 2014 [E/344–345E].  His description of the time and location of the accident, and the weather and the traffic at that time was the same as Chan Wai Lun’s and Chan Ka Lun’s description. There was traffic congestion on the first and second lanes and the traffic was smooth on the third lane.  He was driving on the second lane at about 30 kmh. When approaching the place of the accident he saw that the first and second vehicles in front had stopped.  He also stopped for 2 to 3 seconds.  He saw from the rear view mirror that the 2^nd defendant’s bus had not reduced its speed.  The bus hit the rear of his car and caused it to move forward and bump the rear of the second vehicle.  He then stated:

“After the accident, I suffered from injuries in my right eye, neck and waist. When I got off the car and checked the damage to the car, I saw that the front and rear of my car were damaged…”.

The first and second vehicles, his vehicle and the fourth vehicle, the bus, were all stopped on the same lane. All the vehicles were damaged and he and the driver of the second vehicle were injured.  The police arrived to deal with the matter.  He was sent to Princess Margaret Hospital (“PMH”) for treatment by an ambulance.  He was hospitalised for treatment for 4 days. His car had fully stopped before the collision and had not struck the second vehicle.  The distance between his car in the second vehicle was about 2 metres.  There was only one collision throughout the whole process.  He heard a bang sound at the back of his car and felt the back of his car being hit. His car was caused to rush forward and hit the back of the second vehicle.  He saw the bus bump into his car without reducing its speed.  As the airbag of his vehicle bounced out, he was unable to see the crashing of the first and second vehicles.  The accident was caused by the bus driver who failed to stop.

18.  The police took a cautioned statement from the 1^st defendant on 26 August 2014 [E/351A–351E] in which it was recorded that the 1^st defendant did not want to say anything and did not want to answer any questions.

19.  Police constable, PC 6857, Lee Chi Hang, made police statement on 15 July 2014 [E/351F–351M] in which he stated that he had reached the scene of the accident at 2:55 pm on 27 June 2014.  He noted that the sequence of the vehicles involved in the accident was RJ5615 (V1), RU2729 (V2), HJ3269 (V3) and HS539 (V4). The driver of V3, the plaintiff, had a red and swollen right eye.  When he asked the plaintiff at the scene about the cause of the accident, the plaintiff said “I was also able to stop in time.  The distance was one car space. Then I saw the bus ramming into my car.”

20.  The brief facts of the case dated 27 January 2015 in respect of the charge of careless driving against the 1^st defendant contained a summary of the statements made to the police by Chan Wai Lun, Chan Ka Lun, the plaintiff and PC Lee Chi Hang. The location of the accident on Kowloon bound Tsuen Wan Road outside Wing Kin Industrial Building was a three-lane one-way road which merged with a slip road next to the first left lane. There were double white lines dividing the second left lane and third left lane.  The speed limit was 70 km.  At the time of the accident, it was not raining and the road surface was dry and intact.  The traffic flow was smooth.

21.  The photographs taken by the police at the scene of the accident showed the damage to the vehicles concerned [E/348-351].  The top photograph on E/348 showed the damage sustained by the rear of the second vehicle, a private car: the back and the rear fender and the rear license plate of the vehicle were significantly dented. The bottom photograph on E/348 showed the damage sustained by the front of the plaintiff’s vehicle, also a private car: the front license plate and the front offside fender and front offside bonnet sustained damage.  The top photograph on E/349 showed the second and third vehicles and the bus stopped in the second lane of this straight section of road.  The bottom photograph on E/349 showed that the damage sustained by the rear of the plaintiff’s vehicle which was also dented, but not as significantly as the damage sustained by the second vehicle.

22.  Most significantly, the top photograph on E/350 showed the plaintiff on a stretcher with his eyes open. This photograph was taken at the scene of the accident before the plaintiff was conveyed by ambulance to hospital.

Injuries and Treatment

23.  A clear and concise summary of the medical records detailing the injuries and treatment of the plaintiff after the accident appears in the joint neurological report of Drs Brian Choa and Edmund Woo dated 19 October 2017 which I set out as follows [D/231-240]:

“2.1. The accident of 27^th June 2014 and its aftermath

On 27^th June 2014, Yeung was injured in a traffic accident in Tsuen Wan. He was the driver of a stationary 7-seater van (HJ 3269) which was collided into at its rear by a bus. His van was pushed forwards and collided with another motor vehicle (a mini-cooper) in front. The airbag of his van was released and he hit his right face against the airbag. In his own statement of 13^th August 2014 to the police, he stated that he could get out of his van to inspect the damages (我落車查看…). Photographs taken at the accident site shows that the front and the back of his van were somewhat dented; it by no means concertina’d.

He was taken to the Princess Margaret Hospital (PMH) and admitted under the surgeons. It was noted under the section of past medical history that he had sciatica with follow-up at the family medicine clinic (he also had a past history of haemorrhoids, sebaceous cyst at the right groin and gastritis). He reported being hit on the face by the airbag. The notes specified there was no other injury. He had no loss of consciousness, nausea or vomiting. He had mild dizziness but he could walk after the accident. Examination showed he had a full Glasgow Coma Scale score of 15/15 and normal power in all 4 limbs. The right face was erythematous and tender. The abdomen was soft and the anal tone normal. X-rays of the facial bones showed air-fluid levels in the right maxillary sinus but no fracture. X-rays of the cervical spine showed normal alignment. CT (computed tomographic) brain scan was normal. He complained of occipital pain, neck pain and left hip pain while in hospital; there was no cervical spine tenderness. It was further specified that he had no limb weakness or numbness and he was ambulatory. He was discharged on 30^th June 2014.

2.2 Follow-up with the surgeons of PMH

He attended follow-up visits at the surgery clinic of PMH. The background history of sciatica with follow-up at the family medicine clinic was again noted. When first seen on 17^th July 2014 (3 weeks after the traffic accident), he reported occasional dizziness and right peri-orbital pain with subjective decrease in visual acuity (he could not read small prints). He also complained of right lower limb numbness. Examination showed power in the right lower limb at grade 4/5 (it was stated that such weakness was the same as before the traffic accident). He had mild tenderness over the right zygoma but there was no cervical spine tenderness. Report X-rays of the face showed no air-fluid level or fracture. X-rays of the lumbosacral spine showed mild anterior osteophytes but the disc spaces were not narrowed. When seen again on 28^th August 2014, he complained of low back pain shooting down to the right lower limb which was numb and he needed crutches to walk since the accident. He also complained of blurring of vision with increased lacrimation in the right eye. Examination showed numbness in the right lower limb and its power was grade 2-3/5. When seen on 20^th November 2014, power in the right lower limb was grade 4/5. He had no sensation in the S1 (first sacral) region. Ophthalmological and orthopaedic assessments were arranged.

2.3 Physiotherapy at the Kwong Wah Hospital (KWH)

He was seen by the physiotherapists at KWH from 20^th October 2014. After 6 months of treatment, he reported an overall 30 to 40% improvement. He still had back pain and right leg numbness. When assessed on 13^th January 2015, power was grade 4⁺/5 in the right lower limb and grade 5^-/5 in the left lower limb. He could walk independently with 1 elbow crutch. He was discharged after the last session on 25^th March 2015.

2.4 Orthopaedic assessment at KWH

He attended the orthopaedic clinic of KWH on 11^th December 2014. He complained of low back pain and weakness/numbness in the right lower limb. Examination showed tenderness over the lumbar spine. He demonstrated numbness and weakness from the L2 (second lumbar) to the S1 segments with power at grade 3-4/5 on the right. X-rays of the lumbosacral spine showed loss of lumbar lordosis. MRI (magnetic resonance imaging) scan of the lumbosacral spine on 19^th March 2015 showed no spinal cord or nerve root compression. When seen on 2^nd April 2015, power in the right lower limb had improved to grade 5^-/5. When seen on 14^th May 2015, He reported another fall in late April 2015 for which he was admitted to the Queen Elizabeth Hospital (QEH). Examination showed power at grade 0/5 in the right lower limb and grade 4/5 in the right upper limb. MRI scans of the brain, the cervical spine and the lumbar spine performed subsequently were all normal. When last seen on 11^th November 2016, he could walk indoors with a frame and a knee-ankle-foot-orthosis.

2.5 Occupational therapy at KWH

He was assessed by the occupational therapists at KWH on 4^th February 2015 and 27^th March 2015. He complained of right shoulder pain when elevating the right arm, pain over the thoracolumbar spine and numbness/weakness in the right leg. Examination showed his tolerance in sitting was 30 minutes while tolerance was 20 minutes each for walking and standing with one elbow crutch. His gait was inconsistent. Hand grip was 18 kg-force on the left and 10 kg-force on the right. It was opined that his working capacity did not meet his job demand (as a chauffeur).

2.6 The fall of 29^th April 2015 and its aftermath

He was seen at the Accident & Emergency Department of QEH at 2:21 am on 29^th April 2015. He fell at home at 1:35 am. He landed on his right buttock. He complained of back pain and numbness in the right leg. Examination showed tenderness in the low back. His right leg was numb to touch. X-rays of the lumbosacral spine showed no fracture. He was admitted under the orthopaedic surgeons.

A more detailed history taken by the orthopaedic surgeons pointed to previous sciatica since 2013; he had right-sided low back pain radiating to the right lower limb. It was also stated he had a past history of LUTS (lower urinary tract symptoms). As for the fall, he slipped in the toilet while urinating holding onto crutches. Examinations showed no movement of the right lower limb when instructed to do so but active movements including flexion of the right hip and extension of the right knee were noted at other moments. There was inconsistent sensory loss. MRI scan of the lumbosacral spine showed mild disc bulges at several levels but without any nerve tissue compression. He was given analgesic medications and physiotherapy.

He was evaluated by the neurologists. He complained of pain over the whole spine, numbness in the ulnar aspect of the right upper limb, paraesthesiae in the right thigh and no sensation below the right knee. Examination showed normal muscle tone and no muscle wasting. Power was pain-limited at grade 4/5 in the right upper limb but grade 0/5 in the right lower limb. The deep tendon reflexes were normal and symmetrical. Sensation was absent in the right L1 (first lumbar) to L5 (fifth lumbar) dermatomes.

He was also seen by the ENT (Ear, Nose & Throat) surgeons while in hospital. He complained of right hearing loss since the traffic accident of 27^th June 2014. Pure-tone audiogram on 20^th May 2015 showed bilateral sensorineural hearing loss, moderate on the left and severe on the right.

When he was discharged on 26^th May 2015, he walked with a frame.

Subsequent nerve conduction study on 5^th June 2015 at QEH showed prolonged distal latency and reduced compound muscle action potential in the left peroneal nerve; conduction in the nerves of the right lower limb was normal. It was opined there was no electrophysiological evidence to account for the right lower limb symptoms.

2.7 Neurological assessment at KWH

He was admitted to KWH under the orthopaedic surgeons on 11^th June 2015 and 27^th July 2015 for consultation with the neurologists in respect of the diagnosis of a possible whiplash injury. His accident of June 2014 and his fall in April 2015 were noted. Examination showed weakness in the right upper and lower limbs but there was no definite upper motor neurone or lower motor neurone sign. Power was grade 0/5 in the entire right lower limb but the deep tendon reflexes were normal and the plantar response was flexor.

Review of the MRI scan of the lumbosacral spine taken earlier in March 2015 showed only minimal disc bulge at the L4/5 (fourth/fifth lumbar) and L5/S1 levels with only minimal thecal sac indentation. MRI scan of the brain and the brainstem on 14^th July 2015 showed only a few tiny foci of nonspecific signal changes in the cerebral hemispheres. MRI scan of the cervical spine on 2^nd October 2015 showed only mild cervical spondylosis with a disc bulge at the C6/7 (sixth/seventh cervical) level, worse on the left, and possible encroachment on the left C7 nerve root.

Somatosensory evoked potentials on 3^rd December 2015 showed normal responses in the C5/6/7/8 (fifth/sixth/seventh/eighth cervical) dematomes, in both median nerves and in both posterior tibial nerves. Nerve conduction study on 7^th June 2016 showed normal conduction in all the nerves of the upper and lower extremities.

No conclusive diagnosis could be offered.

2.8 Psychiatric assessment at the Kwai Chung Hospital (KCH)

He was seen at the common mental disorder clinic of KCH from 13^th August 2015. He complained of insomnia for 7 to 8 months and headache for more than a year. His mood was low and he was irritable. He had fear of being hit from the back. He could commute on the bus and the MTR. He had only fleeting suicidal ideas. He was not violent. He had vague auditory hallucination but no visual hallucination. The diagnoses of post-traumatic stress disorder and psychotic depression were made. He was given antidepressant (sertraline) medication. At the next visits on 10^th September 2015 and 8^th October 2015, he was calm with a low mood. His speech was relevant and coherent. He was neither suicidal nor violent but he became wheelchair-bound. He was admitted to KCH on 5^th November 2015 because of suicidal ideas. When reviewed on 27^th October 2016, his mood was neutral. His sleep was improved. He had no active auditory hallucination. When last seen on 12^th January 2017, his mood was irritable with poor sleep. He was still bothered by auditory and visual hallucinations. Examination showed he was calm with relevant and coherent speech. His mood was on the low side. He was not suicidal. His insight was partial. He was given antidepressant (mirtazapine, venlafaxine), antipsychotic (quetiapine) and anxiolytic (clonazepam, propranolol) medications.

2.9 ENT assessment at QEH

He attended follow-up visits at the ENT clinic of QEH on 4^th November 2015. Examination showed both eardrums were normal. Pure-tone audiogram on 4^th November 2015 showed mild left sensorineural hearing loss and severe right sensorineural hearing loss. His pure-tone audiogram repeated on 19^th June 2016 showed moderate left sensorineural hearing loss and profound right hearing loss but the test had fair to poor reliability as he did not co-operate and intended to exaggerate his hearing loss. Examination of his eardrums remained normal. Clinical voice test showed no response on the left ear while the hearing threshold was 30 to 60 dB on the right ear. Pure tone audiogram was repeated on 22^nd June 2016 and it showed mild left sensorineural hearing loss; right hearing loss was exaggerated and Stenger test (a test for differentiating feigned from true unilateral hearing loss) was positive on the right. Cortical evoked response audiometry on the same day showed a hearing threshold at 40 dB from the 500 Hz to the 2,000 Hz range on both sides. He was discharged from further follow-up after the last visit on 6^th July 2016.

2.10 Rehabilitation at the Kowloon Hospital (KH)

He attended physiotherapy from 9^th December 2015 and occupational therapy from 5^th January 2016 at the Kowloon Hospital. In April 2016, he was fitted with a right knee-ankle-foot-orthosis.

2.11 Urological assessment at QEH

He attended the urology clinic of QEH from 28^th April 2016. He complained of deteriorating urinary symptoms since the accident of 27^th June 2014. He had urgency and incontinence. He needed 2 to 3 diapers a day. Examination showed power in his right lower limb at grade 0/5 while power in the right upper limb was grade 3-4/5. He was wheelchair-bound. His anal tone was normal and he had a mildly enlarged prostate. His renal function on 28^th April 2016 was normal. Urodynamic study on 16^th May 2016 (he signed the consent form himself with the same signature as he did on the police statement of 13^th August 2014) showed detrusor external sphincter dyssynergia with insignificant post-void residual urine. When seen on 21^st July 2016, he complained of erectile dysfunction since the traffic accident; he was prescribed erectogenic (sildenafil) medication. Ultrasound scan of the urinary system on 25^th July 2016 showed no abnormality. When reviewed on 15^th September 2016, he was given an alpha-blocking agent as symptomatic treatment for his urinary symptoms.

2.12 Assessment by the clinical psychologist at the East Kowloon Psychiatric Centre

He was seen by the clinical psychologist at the East Kowloon Psychiatric Centre on 31^st October 2016. His accident of 27^th June 2014 was noted. He came in a wheelchair. He complained of headache, poor sleep and frequent nightmares. He presented with a low mood. He wept when talking about his loss of occupational functioning. He heard high-pitch machinery sound like that of a brake. He avoided going out for fear of further traffic accidents. His speech was relevant and coherent. He was not suicidal. The diagnoses of post-traumatic stress disorder and psychotic depression were made. He was given psychotherapy.

2.13 Ophthalmological assessment at the Hong Kong Eye Hospital

He attended the ophthalmology clinic of the Hong Kong Eye Hospital. When last seen on 22^nd November 2016, his best corrected visual acuity was 0.6 on the right and 0.7 on the left (improved compared to July 2015). Optical coherence tomography, multifocal electroretinogram and visual field testing were all normal.  The diagnosis of mild refractive error was made.”

The Expert Evidence

24.  The plaintiff was jointly examined by medical experts from four different areas of speciality:

Expertise	For Plaintiff	For Defendants	Report
Orthopaedics	Dr. Lam Yan Kit	Dr. David Cheng	D/202-229
Neurology	Dr. Brian Choa	Dr. Edmund Woo	D/230-265
Psychiatry	Dr. Benjamin Lai	Dr. Gabriel Hung	D/266-316
Ophthalmology	Dr. Tsui Chung Wan	Dr. Ng Wing Ho	D/317-336

The Orthopaedic Expert Evidence

25.  The joint orthopaedic report of Dr Lam Yan Kit and Dr David Cheng was dated 29 June 2017.  There was no disagreement between the two experts. They expressed the following opinions [D/224-226]:

“3. … From review of the medical documents, we opine that the diagnosis was a contusion of the face and possibly a mild neck soft tissue injury, without any complications. … We further opine that the accident should be the sole cause of the injury.

4. For this injury, Yeung was treated conservatively, and appropriate treatment.

Subsequent Development

5. However, Yeung’s condition gradually deteriorated…. He ended up in this present condition, paraplegia of the right lower limb, and paraparesis (partial paralysis) of the right upper limb. Both motor and sensory functions are affected.

6. The treating orthopaedic surgeons, both at KWH and QEH did their very best to try to find out the cause of such a clinical presentation. Exhaustive investigations … were done. The opinion of neurologists was also sought. All investigations drew a blank. …

7. We opined that the treatment given to Yeung is appropriate and complete. In our joint examination today, we also found Yeung in a state of right lower limb paralysis, and [paraparesis] of the right upper limb. These findings are genuine. … We, like our colleagues in the HA hospital, are also at a loss of the cause of such a presentation. There is simply not a single orthopaedic condition that fits.

Relation with the captioned accident of 27.6.2014

8. We consider:

(i) The injury was described as a facial contusion and possibly a minor neck injury without complications.

(ii) The neck symptom resolved quickly.

(iii) Symptoms of right lower limb weakness and paraesthesia surfaced weeks after the accident, unlikely to be due to any acute involvement.

(iv) From our experiences, it is highly unlikely that an injured person not to inform his treating doctors of any complaints, even if not on the first encounter, but during subsequent stay in hospital.

(v) There was another episode of back injury some 10 months (April 2015), causing rapid deterioration, and also new symptoms of neck and right upper limb paraparesis.

(vi) We note the neurologists had put forward a possible diagnosis of whiplash injury to neck.  With due respect, we opine that this does not hold water. Yeung’s clinical presentation suggests severe neurological involvement of a broad degree, either in the spine at different levels, or the brain. Whiplash injury referred to soft tissue injury of the neck.  Furthermore, symptoms appear much later.”

9. All considered, we have to say we do not know the cause.  However, we must confess that we could not relate Yeung’s present state to any orthopaedic injury with such a presentation.  We are unable to say that the captioned accident and/or the subsequent back injury is the sole cause.” 

[My emphasis]

26.  Although the orthopaedic experts considered that the plaintiff’s symptoms and condition were genuine, they were unable to say what could have caused such a condition which did not fit any orthopaedic injury that they were aware of.

The Neurological Expert Evidence

27.  The neurological experts’ joint report of Dr Brian Choa and Dr Edmund Woo was dated 19 October 2017.  They were agreed in almost all aspects, their only disagreement of note being Dr Choa’s opinion that a three-month sick leave was reasonable which differed from Dr Woo’s opinion that one month was sufficient [D/263].  I have already set out above, their review of the medical records.  They also reviewed the X-rays and the various scans that were taken. The positive air fluid level in the right maxillary sinus shown on the X-ray of 27 June 2014 was resolved, as shown by the X-ray of 17 July 2014.  All other X-rays and scans were normal save for mild degenerative changes of the thoracic and lumbar spines and a mild disc bulge at C6/7 and L4/5 levels without any spinal cord or nerve root compression [D/251-253].

28.  In the course of their examination, they observed:

(1)“Yeung was evasive in his answers, mendacious in his account of events and prone to claim that all his symptoms were getting worse”. [D/247/paragraph 6.2]

(2)“He used the right pincer grasp to hold onto a pencil to write his Chinese name and to copy a geometric figure in a feeble and clumsy manner; he held the pencil steadily in the right pincer grasp and he moved the piece of paper with his left hand so as to produce the characters and the drawings.

When not being formally tested, Yeung was seen to use his right arm to raise himself from his wheelchair by forcefully extending at the right elbow; he also used his right hand in an agile fashion to assist in unlocking the knee-ankle-foot orthosis.” [D/250/paragraph 6.4.3]

(3)“When transferring onto the reclining chair, there was a brief interval of at least 1 to 2 seconds when the plaintiff could actually stand stably with the knee-ankle-foot orthosis detached.” [D/251/paragraph 6.4.4]

(4)“Head turning to one side is carried out by the contralateral sternomastoid muscle, i.e. the left sternomastoid muscle turns the head to the right while the right sternomastoid muscle turns the head to the left.  The layman is not aware of this paradoxical crossed innervation and the malingerer will demonstrate head turning to the wrong side.  Yeung demonstrated poor head turning to the right; this indicates weakness in the left, not the right, sternomastoid muscle.” [D/257-258].

29.  As regards the traffic accident itself, Dr Choa’s opinion was that the plaintiff’s current account that he had lost his memory for 30 to 60 minutes was fabricated, given his statement to the police to the contrary and the negative investigations, including more than one head scan and a full spinal MRI scan, which supported his opinion.  Dr Woo was of the opinion that he did not have any head injury, brain injury or concussion and that any soft tissue injury to the neck should have resolved within a month [D/253-254].

30.  As regards the fall of 29 April 2015, Dr Choa was of the opinion that there was no mechanism whereby a fall onto his buttocks could lead to a paralysis of the limb in the absence of evidence of extensive nerve damage.  Dr Woo was of the opinion that he sustained, at most, soft tissue injury to the low-back in the fall which should have resolved within a month [D/254-255].

31.  Dr Woo summarised the plaintiff’s disability is as follows.  He complained of residual headache, impaired memory, irritability, neck pain and weakness in his right extremities. He claimed that the neurological deficits worsened progressively since the traffic accident, during the months between the accident in June 2014 and the fall in April 2015, and that the deficits in the right lower extremity became profound as a further result of the fall [D/257].

32.  Dr Choa’s opinion on the plaintiff’s residual disability was:

(1)only severe spinal cord compression or a large brain lesion could account for his clinical picture and these had been excluded;

(2)the series of negative results since 2014 have shown unequivocally that there was no organic basis for his alleged visual impairment, hearing loss and paralysis of right-sided limbs;

(3)an MMSE (mental examination) score of 16/30 would identify a patient is being markedly demented which the plaintiff clearly was not;

(4)although the difference of 3 cm in the girth of his two thighs was just outside the normal limit of 2.5 cm this could be the residuum of his long-standing sciatica or the result of disuse or a combination of both - his normal knee and ankle tendon reflexes were inconsistent with significant damage to his femoral or sciatic nerves;

(5)the plaintiff’s evasive behaviour, and his observed ability to use his allegedly paralysed limb when not normally tested strongly suggest that his disability is mostly if not entirely feigned [D/255-256].

33.  Dr Woo’s opinion on the plaintiff’s residual disability was:

(1)the plaintiff’s neurological examination demonstrated many unusual features;

(2)the magnitude of cognitive impairment demonstrated by the plaintiff was observed only after a severe head injury in which there was significant, diffuse brain parenchymal damage (damage to the functional tissue of the brain) and in whom primitive reflexes and/or paratonia (inability to relax muscles) were evident on examination to corroborate frontal lobe dysfunction.  In the plaintiff’s case, he had no head injury, there was no objective sign of frontal lobe dysfunction on examination, and there was no radiological evidence of any parenchymal brain damage;

(3)the layman is not aware of the paradox that the left sternomastoid muscle turns the head to the right while the right sternomastoid muscle turns the head to the left and the malingerer will demonstrate head turning to the wrong side - the plaintiff demonstrated poor head turning to the right which indicated weakness in the left, not the right, sternomastoid muscle;

(4)motor deficits in an extremity associated with a brain or cervical spine injury is associated with hypertonia (increase in muscle tone) and hyper-reflexia (hyperactive deep tendon reflexes). In the plaintiff’s case there was no associated hypertonia or hyper-reflexia;

(5)if the plaintiff’s diffuse weakness and sensory loss in the right upper extremity were genuine, they would indicate an extensive lesion spanning from C5 down to T1 on the right.  However, the objective signs of such weakness and sensory loss, namely, muscle wasting and absent deep tendon reflexes, were absent in the plaintiff’s case - he had no muscle wasting and all deep tendon reflexes were preserved. Further, MRI scans showed no compression of exiting nerve roots and no evidence of any nerve root lesion;

(6)the plaintiff demonstrated profound, total sensorimotor loss in the right lower extremity.  If genuine they would indicate a massive lesion spanning from L2 down to S1 nerve roots, all and only on the right; yet there was only mild muscle wasting in the right thigh and all deep tendon reflexes were preserved. Again MRI lumbar scans showed no compression of exiting nerve roots and other studies showed no evidence of nerve root lesion;

(7)notwithstanding his claim, the plaintiff demonstrated for at least a second or two that he could bear weight on the right lower limb without the orthosis;

(8)the distribution of right-sided sensory loss was non-physiological;

(9)there were multiple inconsistencies between the plaintiff’s version of events and the recorded information;

(a) he claimed to have been rendered unconscious upon the impact and not regain awareness until 2 hours later but, in his police statement, he said he got out of his vehicle and inspected the damage at the scene;

(b)he claimed he was confined to bed and needed two canes to walk when discharged from PMH but the hospital notes clearly stated that he was ambulatory with no limb weakness;

(c) he claimed that his right hand was too weak to write and he demonstrated marked clumsiness in writing at their examination which was incompatible with the signatures in his police statement in August 2014 and the consent form in May 2016 which were clearly made in an agile fashion; and

(d)he claimed to have urgency of micturition and he had to micturite every hour but he sat through the almost 2-hour interview without the need to go to the toilet.

Dr Woo concluded that the plaintiff was a malingerer.  The deficits he demonstrated were completely nonphysiological. There was marked discrepancies between his version and the medical records. All these indicated that his deficits were feigned [D/257-261].

The Psychiatric Expert Evidence

34.  The joint psychiatric report of Dr Benjamin Lai and Dr Gabriel Hung was dated 23 November 2017. Dr Hung offered the following opinions [D/280-286]:

“16.3 Before proceeding to consider the possible psychiatric diagnosis, I will address the issue of Mr Yeung’s reliability. Most psychiatric diagnoses are based on reported and subjected symptoms. In a treatment situation the psychiatrist does not doubt the veracity of the patient’s symptoms. This is posited on the shared goal of the patient’s desire to get well and the psychiatrist’s commitment to help the patient get well. Whereas in litigation the plaintiff’s goal is to obtain compensation and the responsibility of the expert psychiatrist is to assist the court. In this context the expert psychiatrist has to look at all the information made available in a critical manner and to form a view on the reliability of the plaintiff. The core of reliability is consistency.

16.4 The most important issue in this case is the reliability of the physical disability. The orthopaedic experts could not find a reason for the physical disability. The experts in neurology agreed that his physical disability as feigned and there is no physical explanation for his symptoms. Dr Woo went [on] to state that Mr Yeung is a malingerer.

16.5 In the joint examination, there was also an inconsistency in the sequence of events. The medical records indicated that there were two injuries (the index Accident on 27 June 2014 and the fall at home on 29 April 2015). After the Accident, the medical records indicate that he was able to walk with a stick and his right leg was not immediately paralysed. However, he told us at the joint examination that his right leg was immediately paralysed after the Accident. The medical records indicated that it was after the fall at home on 29 April 2015 that he lost all power and movement in the right leg.

16.6 It was also very strange that he was unable to answer simple questions about his background (e.g. if his parents were alive, how many siblings he has, whether he had a second marriage, and his answered that he had no children when he had a son according to the medical records). This most likely indicate lack of effort or unwillingness to answer and not due to true loss of memory, as he was clearly able to answer other questions without any difficulty.

…

16.8 … I will proceed to discuss the diagnosis on the assumption that he was truthful in his meetings with the treating psychiatrists and also at the joint examination.

…

16.20 the basis for his psychiatric symptoms is the severe physical disability following the Accident and the subsequent fall at home. The orthopaedic experts could not find a reason for his severe physical symptoms. However, both neurological experts have opined that his symptoms were feigned. Accordingly, if his physical disability is feigned, the basis for his psychiatric symptoms also fails.

16.21 Therefore, in this case, I have doubts regarding the reliability of the diagnosis due to the presence of either malingering or an abnormal sick role. It is not advisable in this case to take his self-reported psychiatric symptoms in full.

…

16.26 Therefore, despite Mr Yeung volunteering many symptoms of Major Depressive Disorder, it is unlikely that he was actually suffering from such severe symptoms.

…

16.39 His main impairment at the moment is his severe physical impairment. His psychiatric symptoms are very mild compared to his physical condition.”  [My emphasis]

35.  Dr Lai offered the following opinions [D286-290]:

“17.8 In the assessment of his current psychiatric condition, the following have been considered:

…

(h) … if according to the opinions of the neurology experts that from the neurological perspective there should not be any restriction on his activities of daily living and there is no loss of earning capacity, his current physical complaints should not be as severe as he has complained of, and thus his current psychiatric symptoms would likely be less severe as he has tried to portray.

…

(j) In the current joint psychiatric examination he said that he could not recall where he was born, where his parents were currently, whether they were currently alive, how many siblings he had, the age he came to Hong Kong, the year he left school, when he got married, his wife’s age, whether his current marriage is his second marriage and his home address. On the basis that he did not have severe degree of head injury at the time of the Accident and clinically he appears to have a mild to moderate degree of depressed mood, it is not expected that he would be affected in his long term memory to the degree of not being able to recall background information and affected in his recent memory to the degree of not being able to tell his home address. The inconsistency raises a caution that he has not tried his effort in answering the doctors’ questions in the current joint psychiatric examination or he has tried to impress the doctors of the seriousness of his psychiatric condition.

17.9  Based on the information from the available medical documents, current examination findings and the above discussion, there is inconsistency observed in the current joint psychiatric examination. If he has permanent physical disabilities as opined by the orthopaedic experts it is compatible that he is currently suffering from mild to moderate degree of psychiatric symptoms. However, if according to the neurology experts he has no restriction in his activities of daily living and there is no loss of earning capacity, it is compatible that he would be suffering from only mild degree of psychiatric symptoms.”

The Ophthalmological Expert Evidence

36.  The joint ophthalmological report of Drs Tsui Chung Wah and Dr Ng Wing Ho was dated 18 January 2018 [D/317-336].  During their joint examination, the experts were unable to obtain a reliable visual acuity test result:

“Unaided visual acuity

Right eye: 20/200; improved to 20/60+ with malingering test

Left eye: 20/60; improved to 20/30 with malingering test

Best-corrected visual acuity

Right eye +2.00 = 20/50

(i.e. 2.00 dioptres of longsightedness)

but fluctuated from 20/100 to 20/50 with malingering test” [D/324]

The experts were in total agreement in their joint report [D/327-329].  They noted that the plaintiff complained of progressive blurring of vision in his right eye since the accident.  His visual acuity was found to be impaired initially but was later confirmed to be 6/9 bilaterally by malingering test, which was satisfactory.  Various ophthalmic investigations were conducted and the results were all normal.  The only positive clinical finding observed was the mild retinal pigment epithelial changes at the macula of the right retinal fundus on 10 June 2015. All subsequent investigations conducted were essentially normal.  During the joint examination on 15 December 2017, a Spatial Domain Optical Coherence Tomography (“SD-OCT”) examination was conducted that revealed at the fovea of the right eye a small retinal pigment epithelial detachment (“PED”) which was not present in the previous SD-OCT examination report of 31 August 2015. PED is a primary retinal disease not caused by ocular trauma.  In the plaintiff’s case, his right eye PED could be idiopathic (a disease or condition which arises spontaneously or for which the cause is unknown) because it was unilateral and there was absence of clinical signs of other retinal diseases.  As a result, his right eye vision was further blurred with distorted images.  The newly diagnosed PED in the right eye and its subsequent visual impairment are not related to the accident on 27 June 2014 and his current ocular complaints are not attributable to the accident.  Judging from the available normal clinical findings obtained in the left eye, it is highly probable that the plaintiff should be able to achieve a normal best corrected visual acuity of 6/6 in his left eye. The best corrected visual acuity of his right eye was 20/50 (i.e. 6/15) with metamorphopsia (a visual defect that causes linear objects to look curvy or rounded) which was due to the newly diagnosed PED and was not related to the accident.

37.  The experts concluded that despite the plaintiff’s complaint of progressive blurring of vision in his right eye since the accident, repeated ophthalmic examinations and investigations conducted failed to delineate any pathology in his eyes.  During the joint examination on 15 December 2017, he was found to be suffering from right eye PED which was newly diagnosed and not related to the accident.

The Plaintiff’s Evidence

38.  In his first witness statement dated 13 February 2018 [B/93-128], the plaintiff gave an account of the accident which was similar to the account contained in his statement to the police. He then stated:

“6. …The airbag of the steering wheel of the private car immediately popped out and hit the left of my face. Everything turned white before my eyes and I passed out afterwards.

7.      Soon afterwards, passers-by pried open the driver’s door and woke me up and then held me to leave the compartment. At that time, I already felt pain over my right eye, right face, neck and waist/back and numbness of right trunk. …”

He was sent to the AED of PMH and admitted to the Department of Surgery.  He was discharged on 30 June 2014 and had to walk on a pair of crutches.  In paragraphs 9 to 13 of his witness statement, he described the various treatments he received for his right eye, right ear and weakness of spine.  In paragraph 16 of his witness statement, he described the fall he had at night on 28 April 2015.  He had severe numbness and weakness on his right leg and he was admitted to the Department of Orthopaedics and Traumatology of QEH.  He required a walking frame when he was discharged on 26 May 2015 and received a recommendation to purchase a wheelchair.  In paragraphs 17 to 27 of his witness statement, he detailed the various treatments he received at various hospitals including treatment for incontinence and psychiatric treatment.  In paragraph 28 of his witness statement, he listed his disabilities as follows:

(a) paralysis of right leg, loss of sensation and mobility;

(b) persistent pain on back;

(c) persistent severe pain on the back of the neck; frequent headache and dizziness;

(d) weakness of right hand, numbness of thumb and index finger; loss of sensation of middle finger, ring finger and little finger;

(e) impaired vision and persistent discomfort of right eye; pain in the eye and watery eyes; vision getting poorer;

(f)  impaired hearing of right ear which was getting poorer - advised to use hearing aid;

(g) urinary incontinence, particularly at night; diaper was needed;

(h) severe headache at night preventing him from falling asleep;

(i)  feeling despondent, slow in response, reduced concentration, occasional auditory hallucination, frequent dizziness and once had suicidal idea;

(j)  wheelchair-bound; and

(k) inability to work.

Except for toileting and eating, he required his wife’s assistance in all daily activities. He could no longer swim, fish and play badminton nor engage in any sport activities.  He could not engage in sexual intercourse after the accident.  In paragraph 33 of his witness statement, he described his mental state.  In paragraphs 34 to 43 of his witness statement, he supported his various claims for loss and damage.

39.  In his supplemental witness statement dated 12 October 2018, the plaintiff provided further information in support of his claims for aids and equipment and the cost of renovations and alterations [B/129-139].

40.  In paragraph 3 of his opening statement dated 9 June 2020, the plaintiff stated that the 1^st defendant’s bus rammed into the rear of his private car at a speed of over 80 kmh.  The tremendous impact just pushed his private car into the rear of the vehicle in front and his private car was turned instantly into a wreck.  The bodywork was crushed at both ends and left almost 2 feet shorter.  The engine was knocked down and machine oil was all over the road surface. As the airbag exploded in the car instantaneously, his view was full of white smoke.  His right eye was struck by the plastic cover of the airbag and he fell unconscious as a result.  At the same time, the driver’s seat was severely damaged and deformed.  The offside car door was contorted and his right upper arm was in turn crushed.  He sustained multiple bodily injuries, with those in his right eye, cervical spine, the back of his head and his lower back being more serious.  He was then whisked off to PMH for emergency treatment.

41.  He also stated in paragraph 12 of his opening statement that on the day when he went to give his statement to the police, he was very weak physically and his head was painful and dizzy as a result of the severe injuries he suffered.  He finished giving his statement with difficulty.  At that time, he did not read in detail the statement taken by the police. The contents of the statement taken by the police were prepared by them in advance. The statement taking was conducted by way of question-and-answer with the police asking the questions and him answering, giving the information he required.  He did not have the chance nor any time to explain in detail what had happened.  The format, wordings and contents of his statement and the statements of another two witnesses were basically the same.  The contents of the statement did not accurately reflect what actually happened at the time of his accident.

42.  In paragraph 3 of the plaintiff’s closing submissions dated 18 August 2020, the plaintiff sought to introduce additional evidence of receiving a threatening letter from a boy at about 8:30 am on 3 August 2020.  The attachments to the plaintiff’s closing submissions included a copy of this threatening letter, a translation in English prepared by the plaintiff of the contents of the threatening letter, and a letter in English from the plaintiff addressed to the court dated 10 August 2020 the contents of which were similar to what was stated in paragraph 3 of the plaintiff’s closing statement. The full English translation of the letter is as follows:

“Today in court you must cooperate with us, (and) admit that your disability is faked by you yourself, otherwise we will take action against you, you and your family will suffer more serious disaster.”

The contents of the letter suggest that the threat to the plaintiff emanated from the defendants or from one of them.  On 3 September, 2020, I directed the defendants to respond to the court in writing within 7 days regarding this new evidence and, in particular, whether it should be admitted after the parties had already closed their cases and, if admitted, what evidence, if any, the defendants would seek to adduce in response or rebuttal thereof.

43.  On 10 September 2020, the defendants wrote to the court and submitted that this new evidence should not be admitted. It was irrelevant. It was obvious that the plaintiff had not been threatened to make any admissions. He vigorously denied the case put to him. Although the defendants doubted the veracity of the plaintiff’s evidence about the incident and the letter, the matter should best be left to be investigated by the police to whom the plaintiff had made a report. Although they did not seek to adduce evidence in rebuttal, they asserted that neither they nor their agents were in any way involved in the alleged incident.

44.  In the exercise of my discretion, I admit into evidence the matters set out in paragraph 3 of the plaintiff’s closing submissions and the attachments to it, which I have set out in paragraph 42 above.  As I am able to assess the veracity of the plaintiff’s complaint set out in paragraph 3 of his closing submissions without the need to hear or receive further evidence on this matter, I would not have granted leave to the defendants to introduce rebuttal evidence, had they sought to do.

45.  In paragraph 8 of the plaintiff’s closing statement, he stated that the second defendant’s bus involved in the accident travelled at the speed of about 90 kmh and that it collided into the boot of his car without slowing down.

46.  In her witness statement dated 18 May 2020 [B/140-144F], which was received into evidence as a hearsay statement, Madam Zhang Qiongyun stated that she had resigned from her 2 jobs as a manager in a restaurant and as a part-time salesperson in an electronics factory in Mainland China in order to take care of the plaintiff, her husband, in Hong Kong.

47.  In his evidence in chief, in addition to relying on his two witness statements, the plaintiff gave further evidence complaining that what the doctors said to him orally was very different from the written medical reports; that lot of facts stated orally by the doctors had not been reduced into writing; and that they did not want to bear the responsibility of stating how serious his injuries were (Transcript/Day1/13A-17G).

48.  When the trial resumed on the morning of 3 August 2020, the plaintiff confirmed the truth of his additional statement of 23 July 2020 which he had sent to court prior to the resumption of the trial (Transcript/Day2/22P-23K). The statement contained the additional evidence, in paragraph 4, of the plaintiff’s plan to consult an orthopaedic specialist to amputate his right leg so that the prosthesis could be fitted to him to enable him to stand and walk.  During his cross-examination, the plaintiff stated that he had lost consciousness after the accident but he could not recall when he regained consciousness, whether at the scene or in hospital. When shown the photograph taken at the scene of him lying on the stretcher with his eyes open [E/350], he answered:

“INTERPRETER: “The mere fact of my eye opening was not equivalent to my state of being sober.  In the hospital, I have seen a lot of patients with their eyes wide open but they all lost their consciousness.”

COURT:  So your evidence is that although this is a photograph of you with your eyes open, you were unconscious.

A.; That’s correct.”

The plaintiff was also referred to his statement to the police and asked whether he knew at the time he signed it that he had to provide true and accurate statements [E/344, 345A]. He answered that he was not sober and had difficulty walking.  His wife and elder sister accompanied him but his mind was not sober.  The police officer told him to sign and he just did so. Whatever is told to him by the police, he will just do it.  In addition, his eyes could not see well.  He disputed the correctness of his police statement in which he had stated that he “got off the car and checked the damage to the car, I saw that the front and rear of my car were damaged” (E/344, 345, 345C).  When referred to the statements that he had made to the experts during their examination of him [D/320, 241], he said that it was so long ago and that he could not remember what he had said. (Transcript/Day2/24M-32D).

49.  The plaintiff did not give any further evidence in re-examination (Transcript/Day3/2D-3D).

My Findings

50.  I refer to the documentary evidence of the accident which I have set out in paragraphs 14 to 22 above.  I find that this was an accident which occurred as described by the plaintiff and the 2  drivers, Chan Wai Lun and Chan Ka Lun to the police and as set out in the prosecution’s brief facts of the case against the 1^st defendant on the charge of careless driving.  The plaintiff submitted that the contents of the statement did not accurately reflect what actually happened at the time of the accident.  The format, wordings and contents of the statements were basically the same and the contents of the statements were prepared by the police in advance.  The statement taking was conducted by way of question-and-answer. I am not impressed by these submissions. It is quite natural for a police officer taking a statement about a traffic accident to assist a witness in giving his statement by asking him to first describe the date and time of the accident; the location of the accident and the speed limit at that location; the weather and the road and traffic condition at the relevant time; and then to describe how the accident occurred; the injuries suffered and the damage sustained by the vehicles involved; and what happened at the scene after the accident including the arrival of the police and the ambulancemen. In this case, each of the three witnesses, including the plaintiff, gave an account of how his own vehicle was involved in the accident. Each of them was able to stop his vehicle from colliding into the vehicle in front of him. The similarity of their accounts does not detract from the veracity of their accounts.

51.  I find that, by reason of the fact that the vehicle in front of Chan Wai Lun’s vehicle suddenly reduced speed and appeared to be stopping, Chan Wai Lun, Chan Ka Lun and the plaintiff all slowed down and stopped their vehicles without colliding into one and other. However, the 2^nd defendant, as a result of his carelessness, did not stop his bus in time which collided into the rear of the plaintiff’s vehicle, causing it to move forward and collide into the rear of Chan Ka Lun’s vehicle which, in turn, moved forward and collided in the rear of Chan Wai Lun’s trailer. The bottom photograph on E/348 showed the damage sustained by the front of the plaintiff’s vehicle: the front license plate and the front offside fender and front offside bonnet sustained damage.  The bottom photograph on E/349 showed that the damage sustained by the rear of the plaintiff’s vehicle which was also dented. More significantly, the photographs showed, and I find, that the body of the plaintiff’s vehicle did not sustain any damage and, in particular, that the driver’s door and compartment was not damaged as a result of the collision and there was no engine oil leaking out from the vehicle onto the road surface.

52.  I reject entirely the plaintiff’s evidence that the 1^st defendant’s bus rammed into the rear of his private car at a speed of over 80 kmh (which, in his closing submissions, he said was 90 kmh), that the tremendous impact pushed his private car into the rear of the vehicle in front and turned his private car instantly into a wreck, that the bodywork was crushed at both ends and left almost 2 feet shorter, that the engine was knocked down and machine oil was all over the road surface, that the driver’s seat was severely damaged and deformed, and that the offside car door was contorted. I find that the 2^nd defendant’s bus was not travelling faster that the plaintiff’s own speed of 30 kmh prior to the collision and that, because of inattention, he did not react quickly enough to prevent the collision.  I also infer from the dent suffered by the rear of the plaintiff’s vehicle, which was not significant, that the 1^st defendant did slow down the bus from its initial speed of 30 kmh, but not quickly enough to prevent the collision that occurred.

53.  I refer to the medical records and reports in C/145-201 and to the summary of these medical records and reports appearing in the joint neurological report of Drs Brian Choa and Edmund Woo dated 19 October 2017 which I have set out in paragraph 23 above.  I find that the contents of these medical records and reports are factually correct and that the said summary is an accurate summary of them.  I do not accept the plaintiff’s complaints that what the doctors said to him orally was very different from their written medical reports; that lots of facts stated orally by the doctors had not been reduced into writing; and they did not want to bear the responsibility of stating how serious his injuries were. The medical records and reports I have seen in this case are in the standard form and contain concise information relevant to the condition of the plaintiff and the injuries suffered by him. I can discern no reason, and certainly there is no evidence, to support the plaintiff’s contention that the medical doctors and other medical personnel who examined and treated the plaintiff would deliberately conceal the true extent of his injuries; and that they did not want to bear the responsibility of stating how serious his injuries were. The plaintiff’s evidence that they did so is pure fabrication.

54.  I have noted, in particular, the following medical records and reports which I found to be very relevant to the issues before me:

(a)  The extent of his injuries was clearly recorded in the notes of the AED of PMH which stated [F/545]:

“Triage Assessment

Condition on arrival: eye injury by airbag. LOC^o (meaning no loss of consciousness). c/o [complain of] Rt [right] eye pain

Clinical findings

- Sprain neck

- R face & eye hit over air bag

- Blurred vision+ pain+

- No other injury

- Limb weakness^o numbness^o (meaning no limb weakness nor numbness)”

(b)  He was admitted to the Department of Surgery on the same day.  The medical report from the Department of Surgery [C/151] stated:

“His right facial region was hit by airbag, and there was no other associated injury, On admission, he was alert with stable haemodynamics, 4 limbs power full, there was erythema over the right face with mild tenderness, abdomen was soft and non tender. XR facial bone showed some fluid level in right maxillary and frontal sinus, no fracture was seen. CT brain showed no intracranial haemorrhage or skull bone fracture. X-ray C spine was unremarkable.”

(c)  It was recorded that his pain improved with analgesics and he was discharged on 30 June 2014 [F/544].  The discharge note also recorded that he was “able to walk” and “4 limbs power full” [F/543]. However, it was the plaintiff’s evidence that upon discharge, he had to walk on a pair of crutches [B/114/paragraph 8].

(d)  The plaintiff was then followed up 3 times at the outpatient department.  It was recorded that during these follow-ups that he complained of “subjective blurring of right eye vision and lacrimation” and also “worsening of [right lower limb] numbness” [C/151]. 

(e)  On 12 September 2014, the plaintiff attended the Eye Clinic of Caritas Medical Centre.  He complained of right eye grittiness and tearing since the accident.  The doctor noted that the condition was unlikely to be related to the accident [C/146].

(f)  He started physiotherapy treatment in the Department of Physiotherapy of Kwong Wah Hospital on 20 October 2014. He attended a total number of 31 treatment sessions and reported 40% overall improvement of his right leg pain and numbness.  In the final assessment on 25 March 2015, he reported that his right leg numbness was slightly improved during walking. Muscle strength of bilateral lower limbs was about normal.  Straight leg raising test of bilateral legs were still limited with pain.  He was discharged [C/153-154].

(g)  He also started a course of occupational therapy treatments in Kwong Wah Hospital on 4 February 2015 [C/155-156]. He complained of persistent pain over his lumbar spine, bilateral iliac crests and gluteal regions, and numbness over the lateral and dorsal aspects of his right leg.  Objective assessment did not reveal significant limitation on active movement of his neck and bilateral arms.  He also complained of back pain and demonstrated difficulty in squatting and stooping. He walked with one elbow crutch.  He continued with the treatment until the last work assessment done on 27 March 2015 when, based on what he reported, he was assessed to have failed to manage the job demands.

(h)  On 28 April 2015, the plaintiff claimed that he had a fall at home which resulted in a complete paralysis of his right leg.  He said on the night of 28 April 2015, he suddenly felt severe pain on the back of his neck and passed out falling down with his buttock.  He was sent by ambulance to the AED of QEH [B/116/paragraph 16]. However, other versions of this event are recorded in various other sources:

(1)  The ambulance record [F/903] recorded that “patient stated that accidentally slip fell down on floor in toilet about 0135 hrs”.  No loss of consciousness was mentioned.

(2)  The note from the AED of QEH [F/902] and the medical report from the Department of Orthopaedics and Traumatology of QEH [C/163] also recorded that the plaintiff slipped and fell.

(3)  As recorded in their joint report, he told the neurologists that, when urinating, he could not balance properly and fell. He had no loss of consciousness. [D/242-243]

[My emphasis]

(i)  He was admitted to the Department of Orthopaedics and Traumatology of QEH.  Their medical record is telling [C/163]:

“During physical examination, there was no movement of the right lower limb when the above-named was instructed to move, while active movement was observed at other moments. There was inconsistent sensory loss. X-rays of lumbosacral spine were unremarkable”.

(j)  On 5 June 2015, a nerve conduction test was performed and the result was unremarkable.  It was recorded that “there was no electrophysiological evidence to account for the right lower limb symptoms” [C/163].

(l)  On 9 July 2015, he visited Hong Kong Eye Hospital [C/157].  After physical examination, the doctor noted that his “eyes are essentially normal”. 

55.  As can be seen from the following table prepared by counsel for the defendants, the plaintiff has made very many inconsistent statements which have been recorded in the various statements, medical records and reports identified in the table which I have amended slightly and which I set out below:

Inconsistencies (arranged in chronological order)
As seen from the following documents: Plaintiff’s (“P”)’s Police Statement 13.08.2014 [E/344-345E] Orthopaedic Joint Report (“Orth JMR”) 29.06.2017 [D/202-299] Neurological Joint Report (“Neuro JMR”) 19.10.2017 [D/230-265] Psychiatric Joint Report (“Psy JMR”) 23.11.2017 [D/266-316] Ophthalmological Joint Report (“Eye JMR”) 18.01.2018 [D/317-336] P’s Witness Statement 13.02.2018 [B/98-128] Re-Revised Statement of Damages (“RRSOD”) 07.05.2020 [A/70-92]
Did P lose consciousness in the road traffic accident? If yes, when did he regain consciousness?	1.      AED notes, PMH [F/545]: No loss of consciousness. 2.      Police Statement [E/344/§3 (§=paragraph)]: “I got off the car and checked the damage to the car.” 3.      MR, Surgery, PMH [C/151]: “On admission, he was alert with stable haemodynamics”. 4.      MR, PSY, KCH [C/174]: P said he was once passed out and regained consciousness inside the car. 5.      Orth JMR [D/207/§6]: P said he became unconscious and woke up finding himself in the surgical ward of PMH. 6.      Neuro JMR [D/241/§3.2]: P said he was rendered unconscious and did not regain his awareness until 2 hours later when he was already at PMH. 7.      Psy JMR [D/268/§10.7]: P could not recall the actual collision as he lost consciousness.  P could not recall when he regained consciousness, but later changed to say he regained consciousness in hospital. 8.      Eye JMR [D/320]: Lost consciousness. P said he regained consciousness after he was admitted into the hospital. 9.      WS [B/113-114/§§6-7]: “Everything turned white before my eyes and I passed out afterwards…. Passers-by pried open the driver’s door and woke me up and then held me to leave the compartment…I stayed on board the bus waiting for rescue.” 10.  Photograph [E/350]: he was alert and opened his eyes when he was sent to hospital.
What injuries did P suffer immediately after the road traffic accident?	1.      AED notes, PMH [F/545]: sprained neck; right face and eye hit over airbag; blurred vision and pain; no other injury; no limb weakness; no limb numbness. 2.      MR, Surgery, PMH [C/151]: Right facial region was hit by airbag and there was no other associated injury, 4 limbs power full, erythema over right face with mild tenderness. 3.      Police Statement [E/344/§3]: “Right eye, neck, waist” 4.      Neuro JMR [D/241/§3.3]: P said he had swelling at the occiput, neck pain, tingling in the outer aspect of right arm/forearm extending down to the ulnar 3 fingers and numbness/tingling in the right hindquarter extending from right lower trunk into entire right lower limb.  Right upper and lower limbs were weak and he was confined to bed. 5.      Psy JMR [D/268/§10.8-§10.9]: injury to eye, arm, neck and head. Unable to walk. Right leg unable to move. 6.      WS [B/113/§7]: “Right eye, right face, neck, waist, back, numbness of right trunk”
What was P’s condition when he was discharged from PMH on 30.6.2014?	1.      PMH Discharge Summary [F/543]: Able to walk after injury, 4 limbs power full. 2.      Neuro JMR [D/242/§§3.3-3.4]: He could only walk with the aid of 2 canes and his wife supporting. Then at home, he was virtually bed-bound. 3.      WS [D/114/§8]: “Upon discharge, I had to walk on a pair of crutches.”
How did the fall happen on 29.4.2015?	1.      Ambulance record [F/903]: “patient stated that accidentally slip fell down on floor in toilet about 0135hrs”. 2.      AED notes, QEH [F/901-902]: slip and fall at home, landed on buttock. 3.      MR of AED, QEH [C162]: “fell accidentally at home”. 4.      MR of O&T, QEH [C/160]: “slipped and fell at home”. 5.      Orth JMR [D/208/§9]: P felt headache and weakness of the lower limb.  He fell at home onto his buttocks. 6.      Neuro JMR [D/242-243]: P said when urinating, he could not balance properly and fell.  He had no loss of consciousness. 7.      WS [B/116/§16]: “I suddenly felt severe pain on the back of my neck (beneath) my skull and passed out falling down with my buttock.” 8.      RRSOD [A/73/§2(g)]: “P suddenly collapsed and fell onto the ground”.
Could P move his right leg after the fall on 29.4.2015?	1.      MR of O&T, QEH [C/160]: “there was no movement of the right lower limb when he was instructed to move”. “Inconsistent sensory loss” 2.      Same report: “active movement was observed at other moments.” 3.      Same report: On 26.5.2015, P was able to walk with a frame.
What was the treating doctors’ opinions on P’s complaint of right lower limb paralysis?	1.      MR of O&T, QEH [C/163]: “there was no electrophysiological evidence to account for the right lower limb symptoms”. 2.      WS §27 [B/120]: “the doctors from Department of O&T and Department of Neurology have repeatedly told me that they opined that I suffered from damage of the tip of nerve close to the back of the skull, resulting in my paralysis.  They even said that there were similar cases in Hong Kong and everywhere in the world, but it is incurable in the current medical technology.
Did P have previous health problems?	1.      Patient Assessment Form PMH [F/573]: “past health history: LBP [low back pain]” 2.      MR, Surgery, PMH [C/151]: “known background of sciatica”. 3.      WS [B/121/§29]: “Prior to the accident, I was healthy and suffered no serious illness and injury”. 4.      Orth JMR [D/207/§5] “enjoyed good health before this accident, no known major illness.  No previous injury.” 5.      Neuro JMR [D/244/§4.3]: Records show P suffered from LBP with right sciatica.  P was reluctant to own up to this and claimed that he has little memory of it.”
Did P return to any gainful employment after accident?	1.      Work record [E/380]: P worked in August 2014. 2.      Neuro JME [D/247/§5.10]: Did not return to any gainful employment. 3.      WS [B/124/§34]: “Since the accident … I was on sick leave” 4.      RRSOD [A/82/§5]: claimed loss on basis that he did not resume any gainful employment.
P’s pre-accident job	1.      Psy JMR [D/268/§10.2]: worked 7 days per week and rarely got any days off.  Earned $20,000/month. 2.      Work record [E/377-379] shows he had one day off per week. 3.      WS [B/111/§3] & RRSOD [A/82/§5(a)]: Earned $19,000/month.
Personal background	P was able to tell expert neurologists on 6.10.2017 about his background, but he was unable to do so on 13.10.2017 to expert psychiatrists: Neuro JMR [D/243/§4] Psy JMR [D/271-272/§12] Came to HK at age of 12. Could not recall what age he came to HK. Married twice. Did not know whether his current marriage is second marriage. Wife is 40 years of age. Did not know his wife’s age. --- Could not recall where parents are now, did not know if they were alive --- Could not recall how many siblings he had. --- Could not recall which year he left school --- Unable to tell home address.

56.  Counsel for the defendants submitted that the plaintiff has given numerous and unexplainable inconsistent statements concerning his injuries, condition and disabilities; that his accounts of events were often contradicted by other documents; and that there was no credible evidence that could explain away these inconsistencies.

57.  It was further submitted that, contrary to what the plaintiff claimed about his right upper limb disability, the right-handed plaintiff was able to write the 18-page opening statement on 9 June 2020; and the 6-page statement and a declaration on 23 July 2020 (Transcript/Day2/24A-J). This was remarkably different from what he demonstrated in the neurological joint examination where he demonstrated grave difficulty in even writing a signature properly.

58.  I disbelieve the plaintiff’s evidence that his right eye was struck by the plastic cover of the airbag and he fell unconscious as a result; and that he sustained multiple serious injuries in his right eye, cervical spine, the back of his head and his lower back.  The plaintiff is a blatant and unmitigated liar.  He had no qualms asserting the bare faced lie that, although the photograph at the scene of the accident showed him with his eyes open, he was, in fact, unconscious; which lie he sought to support with another preposterous lie that, in hospital, he had seen a lot of unconscious patients with their eyes wide open.  I also disbelieve his evidence that, at the time he made his police statement, he was physically very weak, his head was painful and dizzy, his mind was not sober and he had difficulty walking.  I find that his statement to the police made on 13 August 2014 in which he stated that he had alighted from his car after the accident and checked and saw that that the front and rear of his car was damaged, was truthful.  PC Lee Chi Hang was able to speak to him at the scene of the accident. The plaintiff never lost consciousness at the scene of the accident.

59.  Equally unbelievable is his additional evidence that he planned to consult an orthopaedic specialist to amputate his right leg so that a prosthesis could be fitted to him to enable him to stand and walk.  I refused his application at the beginning of the trial to conduct a “simple and yet brutal” nerve test by plunging an 8 inch steel needle into his right leg (paragraph 24 of his opening statement).  The nerve conduction test performed on 5 June 2015 was unremarkable.  These exaggerated theatrics only serve to prove the complete unreliability of his evidence.

60.  Another instance of these exaggerated theatrics occurred during the joint neurological examination when he wrote his Chinese name and copied a geometric figure in a feeble and clumsy manner: holding the pencil steadily in the right pincer grasp and moving the piece of paper with his left hand so as to produce the characters and the drawings.  Yet he was able to produce, in his own handwriting, an 18-page opening statement, a 6-page statement and a declaration, and a 15-page closing submissions. The hand written characters on these documents were written very clearly.

61.  These exaggerated theatrics have continued with his new evidence of receiving a threatening letter to admit that his disability was feigned.  It is ludicrous to suggest that the defendants would resort to such criminal behaviour to win this case when they were already armed with a wealth of clear and compelling evidence to prove that the plaintiff is a malingerer.  I find this letter, and his evidence about it, to be pure fabrication by the plaintiff.  This unsophisticated ruse only serves to confirm my finding that he is a calumnious and mendacious liar.

62.  I totally reject the plaintiff’s submission that the defendants used their huge financial means to compile a large amount of false medical expert reports (paragraphs 12, 13 and 15 of plaintiff’s closing submissions and paragraph 3 of his “core” submissions).  These experts were appointed by the defendants’ solicitors and by the plaintiff’s solicitors at the time when he was legally aided.  These reports were joint reports that were produced by the experts after the plaintiff had been jointly examined by them.

63.  I refer to the opinions of the neurologists set out in paragraphs 27 to 33 above.  The plaintiff has doubted their expertise and professional ethics and has asserted that there was no basis to support the opinions of these “so-called medical specialists”, who were “colluding” with each other and with Drs Lai and Hung “to maximise their personal gains”.  He did not explain the basis of his doubt or why he asserted that there was no basis for their opinions (paragraphs 11, 13, 15, 16 and 20 of plaintiff’s opening statement). I totally reject the plaintiff’s unsubstantiated allegation that these 2 experts were colluding with each other and with Drs Lai and Hung.  Dr Choa and Dr Woo have given expert evidence in our courts for very many years.  Their testimony has been accepted by the courts on a multitude of occasions.  Both experts are well recognised and trusted by the courts.  I accept the opinion of Dr Choa, for the reasons that he has given, that the plaintiff’s disability was mostly, if not entirely, feigned; and the opinion of Dr Woo, for the reasons that he has given, that the plaintiff was a malingerer and that all his deficits were feigned.  I accept and rely on their expert opinions to support my findings in this case.  I set out below my findings on the injuries and deficits he actually suffered as a result of the accident.  I also deal below with the slight difference of opinion between these 2 experts on the amount of reasonable sick leave the plaintiff was entitled to.

64.  I refer to the opinions of the psychiatrists set out in paragraphs 34 to 35 above. Again, I totally reject the plaintiff’s unsubstantiated allegation that these 2 experts were colluding with each other and with Drs Choa and Woo. Dr Lai and Dr Hung are well recognised psychiatric experts whose expert evidence has been accepted by our courts.  I accept the opinion of Dr Hung that if his physical disabilities are feigned, the basis for his psychiatric symptoms also fails.  Dr Lai was also of the opinion that he would be suffering from only mild degree of psychiatric symptoms if he had no restriction in his activities of daily living and there was no loss of earning capacity.  However, Dr Lai has not explained, why, if the plaintiff has feigned his physical disabilities, he would suffer from even a mild degree of psychiatric symptoms.  I prefer the opinion of Dr Hung that, if his physical disabilities were feigned, the basis for his psychiatric symptoms would not exist. I accept and rely on the expert opinion of Dr Hung to support my findings in this case.

65.  I refer to the opinions of the ophthalmologists set out in paragraphs 36 to 37 above. I accept the joint opinion of Drs Tsui and Ng that that, despite the plaintiff’s complaint of progressive blurring of vision in his right eye since the accident, repeated ophthalmic examinations and investigations conducted failed to delineate any pathology in his eyes; and that, during the joint examination on 15 December 2017, he was found to be suffering from right eye PED which was newly diagnosed and not related to the accident.  I accept and rely on their expert opinions to support my findings in this case.

66.  I refer to the opinions of the orthopaedic experts set out in paragraphs 25 to 26 above.  I accept the joint opinion of Drs Lam and Cheng that the diagnosis was a contusion of the face and, possibly, a mild neck soft tissue injury, without any complications; that the neck symptom resolved quickly; that the symptoms of right lower limb weakness and paraesthesia that surfaced weeks after the accident was unlikely to be due to any acute involvement with the accident; that they could not relate the subsequent deterioration to any orthopaedic injury; and that they did not know the cause of the subsequent deterioration.  I accept and rely on their expert opinions, set out above, to support my findings in this case.

67.  The plaintiff praised and relied on the orthopaedic experts as men of integrity and professionalism (paragraph 10 of plaintiff’s opening statement, second paragraph 11 of plaintiff’s closing submissions and paragraph 4 of plaintiff’s “core” submissions).  However, I do not rely on their joint opinion that the plaintiff’s right lower limb paralysis and paraparesis of the right upper limb was genuine. Whether or not a plaintiff’s complaints are genuine is a question of fact for the court to determine, with or without the assistance of expert evidence.

68.  During their physical examination [D/210-211], the experts found that he could stand up with the brace on but was unable to walk.  They performed a straight leg raising test – both legs could be raised to 80 degrees out of a maximum of 90 degrees. The Babinski reflex was normal.  There was little appreciable difference of the calf circumference (37.5 cm on the right and 38 cm on the left) and no difference of the arm circumference (31 cm on both sides) and the forearm circumference (27 cm on both sides).  There is a typographical error in the report which stated that thigh circumference was 44 cm on the right and 4.75 cm on the left.

69.  The reading was probably 47 cm on the left, a difference of 3 cm, which is what Dr Choa found [D/250].  Dr Choa noted that a 3 cm difference was just outside the normal limit of 2.5 cm between sides.  He stated that [D/256]:

“This could be the residuum of his long standing sciatica or the result of disuse, or a combination of both. This observation is not consistent with significant nerve damage to his femoral or sciatic nerves as his knee and ankle tendon reflexes are normal.”

Dr Choa also noted that when not formally tested, the plaintiff was seen to use his right arm to raise himself from his wheelchair by forcefully extending at the right elbow; he also used his right hand in an agile fashion in unlocking the knee-ankle-foot orthosis [D/250].  Dr Choa also noted that when transferring onto the reclining chair, there was a brief interval of at least 1 to 2 seconds when he could actually stand stably with the knee-ankle-foot orthosis detached [D/251].

70.  The orthopaedic experts arrived at their conclusion that the plaintiff’s right lower limb paralysis and paraparesis of the right upper limb was genuine without expressly addressing the possibility that the plaintiff might have been malingering. They expressly stated that there was not a single orthopaedic condition that fitted his condition and that they could not relate his present state to any orthopaedic injury with such a presentation. Yet they did not expressly consider and rule out the possibility that he was malingering. Given the other evidence that has been adduced before me, both factual, which I have found to be truthful, and expert opinion evidence that I have preferred, I do not place any reliance on the orthopaedic experts’ opinion that the plaintiff’s right lower limb paralysis and paraparesis of the right upper limb was genuine.

71.  The plaintiff has told me a multitude of lies. He is a consummate, flagrant and egregious liar and I disbelieve his evidence. I find that he is a malingerer. I find that he suffered a contusion of the face and a mild neck soft tissue injury without any complications in the accident on 27 June 2014. I entirely reject his evidence and his claims that he suffered a multitude of disabilities, including his claims that he suffered frequent headaches and dizziness and severe headaches at night; severe pain on the back of his neck and persistent pain on his back; weakness of right hand, numbness and loss of sensation of his thumb and fingers; impaired hearing in his right ear; urinary incontinence; mentally slow in response and reduce concentration; depression, auditory hallucinations and suicidal ideas; being wheelchair-bound because of paralysis and loss of sensation of right leg.

72.  I find that sometime after 31 August 2015, as discovered by an examination on 15 December 2017, the plaintiff suffered from a small PED which was not present in the previous examination conducted on or about 31 August 2015. This was a primary retinal disease not caused by ocular trauma.  As a result, his right eye vision was blurred with distorted images. The newly diagnosed PED in the right eye and its subsequent visual impairment were not related to the accident on 27 June 2014 and his current ocular complaints of blurred and distorted vision in his right eye are not attributable to the accident.  I reject the plaintiff’s evidence that he suffered from visual problems as a result of the accident on 27 June 2014.

Assessment of Quantum

73.  I have referred to the authorities cited to me on the issue of damages for pain suffering and loss of amenities (“PSLA”): Yau Po Shan v The Express Lift Company Limited & Anor DCPI 2370/2014, 8 November 2019, [2019] HKDC 1495, DDJ S.H. Lee; Wong Ka Lai v Lau Wai Lam & Anor DCPI 1218/2016, 17 April 2019, [2019] HKDC 445, DDJ K.C. Hui; Chung Yin Ting v Chan Miranda (HCPI 1008/2015, 15 February 2019, [2019] HKCFI 270, Master Leong; Wong Eleven v China Way Transportation Ltd & Anor (DCPI 1697/2015, 21 August 2018, [2018] HKDC 1016, DDH Simon Ho; and Lee Chit Ming v Man Siu Hung HCPI 1242/2014, 15 March 2017, Master Chow.  I assess damages for PSLA in the sum of $100,000 for the minor injuries, a contusion of the face and a mild neck soft tissue injury without any complications, suffered by the plaintiff in the accident on 27 June 2014.

74.  The plaintiff was employed as a chauffeur at the time of the accident by Artwell Tapioca Limited. According to the plaintiff’s employment contract dated 11 March 2014, his monthly salary was $9,000 and he was given an additional $7,000 as parking and meal allowance [E/375-376B].  He was also entitled to double pay at Chinese New Year. I find that his income at the time of the accident was $16,750 ($9000 + $7,000 + ($9,000/12)).  Although the defendants were prepared to accept three months as an appropriate sick leave period, I am not prepared to do so.  I prefer the opinion of Dr Edmund Woo that it was reasonable for the plaintiff to have one month’s sick leave, which is supported by the fact that the plaintiff resumed work with his employer on 1 August 2014 [E/380].  He resigned on 29 August 2014.  According to his letter of resignation, he resigned for personal reasons [E/397–397A].  I would have assessed damages for loss of earnings in the sum of $16,750.  However, I note from his bank passbook records that the plaintiff was paid his usual salary of $8,550 a month ($9,000 – $450 being his 5% MPF contribution) for the months of June, July and August 2014 [E/416-417].  I also infer, from the payments of salary by the plaintiff’s employer and the deduction of the plaintiff’s own contribution towards MPF for these months, that the plaintiff’s employer would have paid its contribution towards the plaintiff’s MPF.  I find that the plaintiff did not suffer any loss of MPF contributions. However, in the absence of evidence of the payment of his monthly allowance of $7,000 for the month of July 2014, I assess damages for loss of earnings in that amount.

75.  I assess special damages in the sum of $5,000 being a sum that the defendants are prepared to agree.

76.  I reject all other claims for damages advanced by the plaintiff.

77.  The plaintiff received the amount of $652,808.33 as employees’ compensation from Artwell Tapioca Limited on or before mid- March 2019 [E/361-363] which far exceeds my assessment of damages in this case as shown on the following table.  Accordingly, I do not award any damages nor any interest on damages to the plaintiff.

Head of claim	(HK$)
PSLA	100,000
Pre-Trial Loss of Earnings	7,000
Post-Trial Loss of Earnings	Nil
Pre-Trial Loss of MPF	Nil
Post-Trial Loss of MPF	Nil
Loss of Earning Capacity	Nil
Pre-Trial Expenses	5,000
Pre-Trial Costs of Care and Attention	Nil
Post-Trial Costs of Care and Attention	Nil
Future Aids & Equipment and Miscellaneous	Nil
Sub-total:	112,000
Less: Employees’ Compensation received	(652,808.33)
Total:	Nil

Dismissal of Action and Costs

78.  I dismiss the plaintiff’s action. I make a cost order nisi that the plaintiff pays the costs of the action to the 1^st and 2^nd defendants on an indemnity basis, to be taxed if not agreed. Such an order will become absolute unless a written application is made within 14 days by any party to vary it. I direct that such written application may be made by letter addressed to my clerk. Such letter should state the variation of my order that is sought and the reasons for seeking such variation. Upon application being made, I will dispose of the same on paper. I may or may not give directions to serve further written submissions before disposing of the same on paper.

79.  As the cost order nisi will impact upon the Director of Legal Aid, I grant him leave to apply, by letter, to vary the order within 14 days and/or to apply for wasted costs orders, in respect of which I had made certain observations in paragraph 26 of my recent decision in Lai Sin Yan Elsie v. Tata Communications (Hong Kong) Ltd. HCPI 1092/2015, 14 August 2020.  If application is made for wasted costs orders, I will give appropriate directions to enable affected parties to be heard and to deal with the same.

80.  I also direct the solicitors for the defendants to send a copy of this judgment to Artwell Tapioca Limited or to their solicitors.