LAI LIN CHI v. A.S. WATSON GROUP (HK) LTD

HCPI 860/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 860 OF 2013

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ASSESSMENT OF DAMAGES

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1.  The plaintiff is suing for damages for a slip and fall incident in the defendant’s premises on 27 November 2012. Liability has been admitted and this is an assessment of damages.

2.  At the time of the accident, the plaintiff was 65 years old and a retired casual cleaner.

3.  She was taken to Department of Accident and Emergency (“AED”) of Queen Elizabeth Hospital.  She told the doctor that she landed on her back, right hip and head and complained of, inter alia, persistent headache and dizziness.

4.  X‑ray showed no fracture (thus she had suffered soft tissue injury / contusion only).  A brain CT scan showed “hypodense area…due to previous insults” but “no intracranial haemorrhage or subdural haemorrhage is seen, ventricles normal”.

5.  Since the accident, the plaintiff had complained of, inter alia, pains, headaches, on and off dizzy spells and psychiatric / psychological problems.

6.  A MRI scan of the brain done in February 2014 showed Chronic Microvascular Ischaemia of bilateral cerebral hemipheres and various areas of “hyperintensities” which could be due to “previous infarcts”.

7.  Dr. KO Put Shui, Peter, the defendant’s orthopaedics expert (“Dr. Ko”), opined that the “Chronic Microvascular Ischaemia” should be “pre-existing and should bear no causal relationship with the alleged injury”.  Dr. Ko also pointed out that “this subclinical or undiagnosed microvascular ischaemia and previous infarcts could lead to various degrees of psychiatric / psychological condition, behaviour and disorder…”

8.  Dr. MIU Yin Shun Andrew, the plaintiff’s orthopaedics expert (“Dr. Miu”), opined that it would be more appropriate to “seek advice from expert from the corresponding specialties i.e. neurologist and psychiatrist to comment…on its association with the subject injury.”

9.  No neurologist expert evidence is adduced before the court.  However, the psychiatric experts have been provided with all medical records as well as the orthopaedics expert report.  Dr. Benjamin Lai, the defendant’s psychiatric expert (“Dr. Lai”) opined that “the preceding brain disease…are stressors unrelated to the index accident”.  So, at least as far as his opinion is concerned, Dr. Lai would have taken into the account of and discounted the effect, if any, of “Chronic Microvascular Ischaemia” to the plaintiff’s current condition.

PSLA

10.  The plaintiff alleged that she suffered from a combination of physical injuries (right hip and shoulder pain) as well as neurological / psychiatric injuries (persistent headaches, dizziness, as well as Post‑Traumatic Stress Disorder).

11.  As far as her physical injuries were concerned, she suffered from a soft tissue injury / contusion to her right hip and shoulder.  During the joint examination by the orthopaedics experts on 14 November 2014 (some 2 years after the alleged accident), she still complained of intermittent right hip and buttock pain, as well as intermittent right shoulder pain and weakness.

12.  There was substantial disagreement between the orthopaedics experts: Dr. Miu suggested that she suffered from right frozen shoulder, Dr. Ko disputed this, pointing out that there was no history of her reporting any symptoms of right hip or right shoulder except on the day of the injury at AED, and in fact there was a record of full range of motion in bilateral hip and shoulders on examination on that day.

13.  Dr. Ko also commented that X‑rays of the right shoulder and right hip showed no abnormality.  On examination, although there was decrease in range of motion of the right shoulder and hip, there was a tendency for decrease in range of motion on the right side of her body (e.g. her right elbow) and there was “no sound medical explanation” for such.

14.  Dr. Ko opined that such tests depended on the plaintiff’s “voluntary active range” and there was “voluntary resistance”, be it “intentional or non-intentional” and throughout the examination, there was “significant guarding with voluntary resistance with complaint of pain” “persistently present” on the right side of the body except the right wrist.

15.  There was extensive discussion between the experts on various aspects of the alleged disabilities.  The explanation Dr. Miu gave, in summary, was that the plaintiff “suffered from serious psychiatric and neurological problem” and this has somehow affected her “cognitive function” and that “it was quite common for depressive patients to neglect or under-report their somatic symptoms”.

16.  I would question this explanation. Firstly, to say that the plaintiff was “under-reporting” her symptoms would be inconsistent with the findings at the examination of “significant guarding with voluntary resistance with complaint of pain” “persistently present” on the right side of the body, which was a rather “over-reporting” of symptoms.

17.  Secondly, Dr. Miu is not a psychiatrist.  In fact, the plaintiff had a Mini-Mental State Examination done in the public psychiatric hospital and Dr. Lai, the psychiatric expert, opined that “Her score of 26 out of 30 indicates normal cognitive function”.

18.  I therefore agree with Dr. Ko that Dr. Miu’s opinion was “personal speculation”.

19.  Further, from the video surveillance recording, I noted that the plaintiff was capable of walking unaided. She could also walk (mostly with her daughter holding her right upper limb) at a reasonable pace for a substantial distance carrying a shopping bag on her right shoulder.

20.  After considering all the evidence, I prefer the opinion of Dr. Ko. Whatever soft tissue injuries that the plaintiff had, I agree with Dr. Ko that such “should have resolved in a matter of 2 to 3 months with simple conservative treatment”. The plaintiff should be physically capable of able to manage daily living and self-care activities as well as household chores but for her neurological / psychiatric problems (which I will examine next).

21.  One of the main complaints of the plaintiff was frequent headache and dizziness.  Dr. Lai stated on p. 30 of the joint psychiatric expert report:

“According to the available medical notes from the public psychiatric clinic, she had complained of disabling headache and dizziness as the underlying cause of her impairment of functioning and low mood.”

22.  Thus, Dr. Lai opined that it was clear from the available psychiatric records that the cause of the plaintiff’s continual functioning and psychiatric problem was (at least by a large part) the headache and dizziness, not any alleged residual physical injuries (which I have already addressed above).

23.  The key issue here is whether the plaintiff’s head injury caused this alleged persistent headache and dizziness.  If so, this would be a disease called Post Concussional Disorder or Postconcussional Syndrome (“PCS”).  Dr. Lai opined:

“In general when a head injury leads to development of a postconcussional syndrome in a person, the head injury usually leads to loss of consciousness. In the absence of loss of consciousness at the time of the accident as in her case if head injury has indeed led to a postconcussional syndrome, the degree of the postconcussional syndrome caused by the head injury should be of a very mild degree.

…According to her, there has not been any improvement in her headache and dizziness since the accident.  As far as I understand the natural cause of symptoms of a postconcussional syndrome is improvement in time especially with treatment.  The absence of improvement of headache and dizziness that she has complained of is inconsistent with the known natural cause of a postconcussional syndrome especially in a mild case of head injury.  The degree of the headache and dizziness would not likely have been as disabling as complained of by Madam LAI even if she has developed a postconcussional syndrome following the index accident.”

24.  Dr. Wong Yee Him John, the plaintiff’s psychiatric expert (“Dr. Wong”), was in agreement:

“I agree with DR. LAI that she does not suffer from Post Concussional Disorder.”

25.  In fact, in the medical report dated 11 August 2014 by Dr. SHA Yiu‑chung of the Department of Neurosurgery of Queen Elizabeth Hospital, there was no mention of any diagnosis of PCS.

26.  Dr. Sha stated:

“She first attended the Accident and Emergency Department, QEH on 27/11/2012. Urgent CT scan was performed on 27/11/2012 and was reported as:

(1) Hypodense areas are seen in the right anterior frontal and left centrum semivale. These are due to previous insults.

(2) No intracranial hematoma / subdural hematoma is seen.

(3) Ventricles are normal

During her first visit at our Neurosurgical Outpatient Clinic, QEH, she complained of persistent dizziness which was relieved after panadol and merislon medication. She could not tell the frequency nor duration of dizziness.

…we booked an elective MRI brain scan for her but she defaulted that MRI brain scan appointment in 8/2013.

She was reviewed…on 27/9/2013. She still required occasional panadol and merislon medication. We rebooked an elective MRI brain scan for her.

Elective MRI brain scan was performed on 20/2/2014 and was reported as:

(1) Chronic microvascular ischaemia of bilateral cerebral hemispheres

(2) White matter T2 hyperintensities in right frontal and left parietal lobes, can be due to previous infarcts.

Her last Neurosurgical Outpatient Clinic follow up was on 10/3/2014, she complained of occasional dizziness and headache. But she was able to walk unaided with activity of daily living independently…

In view of her MRI brain scan report, we offer a long term prophylactic aspirin treatment for her cerebral infarction….”

27.  The only diagnosis that, Dr. Sha, the treating neurosurgeon made, and the one that they had offered to treat, was “Chronic Microvascular Ischaemia”.  This was clearly unrelated to the accident and even on the day of the accident, there was evidence of “pervious insults” or “infarcts”.

28.  However, in a follow‑up report by Dr. Wong Yuk Wing Larry of the Department of Neurosurgery of QEH dated 13 January 2016, the diagnosis of PCS was mentioned:

“…She was continued managed having residual postconcussional syndrome. Main symptoms of headache and dizziness remained static.”

29.  There were several questionable features in the plaintiff’s evidence in court.  She could now give the “frequency and duration” of her dizzy spells, and she also said there were “improvements” in her headache and dizzy spells, stating that the first two years after the accident was very bad, with headache and dizzy spells lasting up to 30 minutes for 5-6 times a week, but now she only had perhaps 1-2 or 2-3 episodes a month.

30.  I would think that this rather raise a question on the witness’ credibility.  Clearly, she did not provide such information to Dr. Sha, her treating neurosurgeon at the time, nor to Dr. Lai and Dr. Wong, the expert psychiatrists during the joint examination.  There must be at least some suspicion that the plaintiff was now attempting to “improve” the evidence after seeing those reports.

31.  This put a big question as to the extent of the plaintiff’s claimed head injury: the complaints of dizziness and headache (and the diagnosis of PCS which is based upon such complaints) are entirely subjective and there are concerns as to the plaintiff’s credibility.

32.  Further, even if the plaintiff did suffer from some headaches and dizziness, Dr. Ko has raised the possibility that “microvascular ischaemia in the brain and pervious infarcts could lead to different degrees of psychiatric / psychological condition, behaviour and disorder”.  Dr. Ko is not a neurosurgeon and, without input from such experts, there is no more evidence on whether the microvascular ischaemia and previous brain infracts have caused or contributed to such alleged headache and dizzy spells, as well as other claimed disorders.

33.  As to the question of whether the plaintiff actually suffered from PCS, it is trite law that the court is not bound by the diagnosis of the treating doctor (Chu Kan Hung v. Shing Lee (Meat Supplies) Hong Ltd., unreported; HCPI 802/2013; Hon. Bhawwaney J.; 26 June 2015).  Given the above circumstances and the agreement between both psychiatric experts, I find that the plaintiff, on balance of probability, did not suffer any significant PCS and even if she did, the degree (as Dr. Lai opined) should be “very mild” and “the degree of the headache and dizziness would not likely have been as disabling as complained of by Madam LAI”.

34.  Turning to her psychiatric condition, Dr. Lai opined:

“Based on the information from available medical documents…inconsistencies are observed in the assessment, and it likely unreliable to make an assessment of the nature and degree of her psychiatric condition based on her information. On the basis that she had sustained some physical injuries in the index accident, and the physical symptoms had persisted and were disabling to her for some time, it is compatible that she could have developed symptoms of an adjustment disorder…”

“As to the assessment of the permanent disability based on her psychiatric condition, it will likely be in the mild range…From the psychiatric perspective she will have no problem in self care and be able to travel around by herself. There will be no limitation of her daily activities. She should be able to have normal social activities and enjoyment in life… She should have similar ability in adaptation to work environment as before the index accident. She will have very minor residual psychiatric symptoms.”

35.  Dr. Wong, however, was of the view that the plaintiff suffered from Post Traumatic Stress Disorder.  He stated that:

“I do not think there is any ground to say that Madam LAI’s account of her illness is not credible or that her presentation at the Joint Evaluation is inconsistent with that of PTSD…”

36.  In explaining his reasons, Dr. Wong concentrated on the plaintiff’s psychiatric complaints and behaviour.  Unlike Dr. Lai, Dr. Wong did not address the inconsistencies in her complaints with the diagnosis of PCS (despite agreeing with Dr. Lai that the plaintiff did not suffer from PCS).  It is rather surprising that Dr. Wong failed to take this further: the question must be that if the plaintiff did not suffer from PCS, what would be the cause of the plaintiff’s complaint of “persistent headache and dizziness”?  If no cause could be identified, would there be  question on the plaintiff’s credibility?

37.  Under the circumstances, I would prefer Dr. Lai’s opinion.  If there are inconsistencies in the history given by the plaintiff, or if the plaintiff is found to have exaggerated her complaints, this may not, of course, mean that she definitely did not suffer any symptoms at all, but it would render her subjective complaints (symptoms or history told to the doctors) unreliable.  As psychiatric diagnoses are mostly if not entirely based upon subjective complaints, Dr. Lai was very fair to observe that “it likely unreliable to make an assessment of the nature and degree of her psychiatric condition based on her information”.

38.  Given this problem with the subjective history given by the plaintiff, one can look at the more “objective” or “circumstantial” evidence.  I agree with the submission of Mr. Daniel Chan, counsel for the defendant, that there were evidence to show that the plaintiff’s symptoms and disabilities might not be as serious as she claims, or at the very least, the plaintiff did not seem to be too concerned about such. She refused health care professionals to go to her home for home safety assessment for risk of fall.  The file was closed with the consent of her daughter, Madam Wong.  She (and Madam Wong) also refused psychiatric in-patient management for her claimed low mood and suicide risk. When earlier psychiatric follow‑up was advised, Madam Wong refused because of her own busy work schedule.  They also refused community psychiatric nurse referral.

39.  The plaintiff and Madam Wong did provide some explanation to this: the plaintiff, being very “tradition”, did not like hospitals and did not want neighbours to see “people with white clothes” to come to the flat.  Whilst I am not sure if community psychiatric nurses or health care professionals would make home calls wearing “full uniforms”, the plaintiff did not seem to have enquired about this or, if needed, requested for them not to wear such.

40.  In any case, if daughter’s work schedules and “not being seen with people with white clothes” etc. would take priority over claimed suicide risk and various remedial measures for her alleged disabilities, one could infer that the plaintiff and Madam Wong could not have been that concerned about such alleged disabilities.

41.  Further, Madam Wong gave evidence for her desire for the plaintiff to consult doctors in the private sector for better and more frequent care (and the claim for future medical expenses was based on such).  However, all these times, Madam Wong did not even try any private medical care for her mother.  When questioned, Madam Wong said that she was the only earner in the family and she had to be careful with her money.  But it was the plaintiff’s case that after the injury, Madam Wong had stopped paying her HK$4,000 a month.  Madam Wong could have used this money for consulting private doctors.  No convincing explanation was given by Madam Wong for failing to do this.

42.  All such evidence appears to show that whatever the plaintiff’s disabilities were, obtaining treatment was not a high priority for the plaintiff and Madam Wong.

43.   This adds support to Dr. Lai’s opinion that the plaintiff could have developed “an adjustment disorder” after the accident but any permanent disabilities based on her psychiatric condition would likely be “in the mild range”.

44.  Given the above considerations, the plaintiff’s claim of HK$800,000 under this head is grossly exaggerated.  Having considered Cheung Chak Fui v. Sun Hing Organization Plastic Management Ltd. [2011] HKEC 1299, Chong Hgan Seng v. China Harbour Engineering Co. Ltd. [2011] HKEC 1663, Wong Yan Lam v. Lam Wing Kei [2011] HKEC 769 and Luk Sung Fei Veronica v. Chau Chung Shun [2012] HKEC 929, I think an award of HK$175,000 is appropriate under the circumstances.

PRE‑TRIAL LOSS OF EARNINGS

45.  The plaintiff is 65 years old.  She retired as a part-time cleaning lady at 60 but she claimed that she was employed by her daughter to take care of her grandson.

46.  In court, the plaintiff gave minute details of her “work”: shopping for food, picking up her grandson at school, taking him to playground, taking care of him and cleaning his home, as well as cooking and cleaning her daughter’s own home etc.

47.  The plaintiff also gave evidence that her daughter pay her HK$6,000 for reimbursement of food she bought and a “salary” of HK$4,000 for her “work”.

48.  I asked the plaintiff for details of such an arrangement.  The plaintiff clarified that her “employer” was Madam Wong, her daughter.  Madam Wong, the plaintiff and husband lived together in Madam Wong’s flat.  The grandson was not the son of Madam Wong but the son of Madam Wong’s brother.  The brother’s family lived in a flat nearby (within 15 minutes or so of walking).  It was not the brother who paid the plaintiff.

49.  In other words, it was alleged that Madam Wong “employed” her mother to care for her brother’s son.

50.  I would question this rather unusual “employment” arrangement.

51.  I note that the plaintiff all along never mentioned who paid her HK$4,000.  In paragraph 6 of her witness statement, she stated, as translated:

“…every month I was paid cash about not less than HK$4,000…”

52.  More surprisingly, in Madam Wong’s own witness statement, there was no mention of her paying the plaintiff any salary for such employment.  One might expect that this would be the first thing that she would state in evidence if she indeed was the “employer” of her mother.

53.  Further, in either the Statement of Damages or Revised Statement of Damages, there was also no mention of who was paying the plaintiff:

“Prior to the accident, the plaintiff was the main care taker of her grand-children and she was paid about HK$4,000.00 / month on average and the same was paid in cash.”

54.  Thus, the plaintiff, and those advising her, must be aware that the impression that such documents gave was that the plaintiff must be paid by the parents of the grand-children (in fact only a grandson) and not Madam Wong.

55.  The plaintiff’s various loss of earnings claims accounts to almost HK$600,000.  One would reasonably expect that the plaintiff (and those advising her) must see it as a priority to clarify such an unusual employment arrangement and to adduce evidence to support such, perhaps by calling the brother or disclosing bank statements of Madam Wong to support such payments.

56.  In fact, no such clarifications nor evidence was adduced and this unusual “employment arrangement” only first came to light when I asked the questions in court.  And there was nothing but bare assertions of such an arrangement by the plaintiff and Madam Wong in court.

57.  There are also other question marks on this claimed employment arrangement.

58.  Neither the plaintiff nor Madam Wong ever mentioned the additional HK$6,000 as reimbursement of food purchase in their respective witness statements.  This evidence was raised for the first time at the hearing.

59.  It would be inconceivable that Madam Wong could afford to pay HK$10,000 a month to the plaintiff when she was well.  But when she suffered the alleged disabilities, Madam Wong stopped all payments but yet did not use some of those saved money to employ (or even try to employ) part-time or full-time domestic help to care for the plaintiff, the grandson and to help with the household chores (or to allow the plaintiff to consult private doctors as stated above).

60.  The plaintiff told the court that the daughter-in-law was only working part-time at a chocolate shop (which has closed down) and that she would not need take care of the grandson when the daughter-in-law was not working.  However, when asked how often this would be, the plaintiff was unable to tell except “very rarely”.

61.  Having considered all the evidence, I do not accept that there was any employment arrangement as claimed or at all so I would not give any award under this head of claim.

POST-TRIAL LOSS OF EARNINGS AND LOSS OF EARNING CAPACITY

62.  Similarly, there should be no award under the claims for post-trial loss of earnings and loss of earning capacity.

LOSS OF ABILITY TO PROVIDE SERVICE TO THE FAMILY

63.  Although I found no “employment arrangement” as claimed, I do accept that the plaintiff did provide a service to the family: caring for grandson, as well as some household chores for both her son’s family, Madam Wong and the plaintiff’s husband.

64.  As such, it is more appropriate and just to allow the plaintiff a claim under this head rather than a claim of loss of earnings.

65.  I have explained at length above the reasons why I prefer the expert opinions of Dr. Ko and Dr. Lai.  I note that Dr. Ko opined that “sick leave” for the contusion of right shoulder and right hip should be 2 to 3 months.  Similarly, Dr. Lai would give a sick leave of “about 3 months” (and that she is mentally capable of returning to pre-accident work capacity).

66.  Given the age of the plaintiff and also the fact that the grandson should not need much “looking after” after a certain age (he is now 14 years old), I am of the view that the plaintiff’s role in providing service to the family would in any case decrease with time.

67.  I would therefore allow a loss of service claim of 3 months’ of the equivalence of a domestic helper’s current salary: HK$4,310 x 3 = HK$12,930.

VALUE OF SERVICES OF THE CARER

68.  I would allow the value of care by Madam Wong and other relatives for the plaintiff at HK$5,000 per month for 3 months in line with Dr. Ko and Dr. Lai’s opinion stated above: HK$5,000 x 3 = HK$15,000.

VALUE OF SERVICES OF DOMESTIC HELPER

69.  I note that neither Dr. Ko nor Dr. Lai was of the view that there was any need for domestic helper, and, as discussed in paragraph 56 above, the “circumstantial” evidence did not support such a need.  I would therefore not allow this head of claim.

FUTURE MEDICAL EXPENSES

70.  I accept Dr. Ko’s opinion that the plaintiff’s contusion injury has already resolved 2-3 months after the accident.

71.  I also accept Dr. Lai’s opinion that the plaintiff could continue her psychiatric treatment in the public sector (once every 8 weeks at HK$200 per session for the next 9 months or 6 months after the conclusion of the litigation).  She could also seek clinical psychological treatment in the public sector for 2-3 sessions at HK$100 per session.

72.  I would therefore allow (HK$200 x 5) + (HK$100 x 3) = HK$1,300.

MISCELLANEOUS SPECIAL DAMAGES

73.  The plaintiff claimed “about HK$30,000” as medical expenses, “about HK$30,000” as tonic food and “about HK$8,000” as travelling expenses.  There was no breakdown of these claims.

74.  The medical receipts produced amount to around HK$3,300.

75.  As a broadbrush approach, I would allow a total of HK$10,000 under this head of claim.

SUMMARY

76.  I will give the following award, in summary:

		HK$
PSLA		175,000
Pre-trial loss of earnings		0
Post-trial loss of earnings		0
Loss of earning capacity		0
Loss of ability to provide services to the family		12,930
Value of services of the carer		15,000
Value of services of domestic helper		0
Future medical expenses		1,300
Miscellaneous special damages		10,000
Total:		214,230 (plus interest)

77.  There be interest on general damages at 2% from date of writ to the date of judgment and interest on special damages at half judgment rate from the date of accident to date of judgment.

78.  I would also give an order nisi for the costs of the action to be paid by the defendant to the plaintiff to be taxed if not agreed in the District Court scale and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations with certificate to counsel.