PERSONAL INJURIES ACTION NO. 258 OF 1999
Date of Handing Down Judgment: 16 November, 2001
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Assessment of Damages
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Introduction
1. On 17 December 1997, the plaintiff then aged 36, having been born on 13 October 1961, and a property sales manager, was standing on the pavement on Fung Shing Road outside the Caltex Petrol Station on Kowloon when a van owned and driven by the defendant reversed into her back, pushing her forward for two to three paces. The plaintiff did not fall down. The defendant, not realising that a collision had occurred, attempted to drive out of the petrol station. The plaintiff caught up with the driver, remonstrated with him and eventually the police was summoned. She was then taken to Queen Elizabeth hospital. X-rays of the lumbar and sacral spine were taken, revealing no fracture. The clinical diagnosis was contusion. The plaintiff was treated with analgesics and discharged. From the hospital notes, the subject of lengthy cross-examination, it seemed clear that no follow-up action was recommended or indicated. On the same day, the plaintiff checked herself into St. Theresa's Hospital, a private medical facility. MRI was conducted, again revealing that her spine was normal. She was discharged on 20 January 1998 and re-attended Queen Elizabeth Hospital on two subsequent occasions, namely 23 and 31 December 1997 for complaints of persistent pain. From that stage onwards, she was seen by numerous doctors, both private and at public hospitals. Treatment began in earnest eventually encompassing psychiatric, psychological and physiotherapy intervention.
2. It was the plaintiff's case that as a direct result of the very minor accident, her life has now been completely ruined. Hitherto, she was able to manage her full time job, albeit with the assistance of part-time domestic help, competently run the family household with two young children and enjoy life quite fully. At the time of the assessment, she presented a sad shadow of her former self. In very broad outline, she claimed to suffer from poor memory, numbness, nightmares, cramps and constant racking pain that medication and treatment offered only relief but no complete cure, and latterly from a total inability to even look after herself. She said her condition had worsened over time although admittedly with some improvement in the past. In sum, her health had gone from bad to worse.
3. Her psychiatrist, Dr. Peter Yu (Dr. Yu) opined that she was suffering from post-traumatic stress disorder (PTSD) as a consequence of her subjective perception of having experienced a life-threatening event in the accident. The defence expert, Dr. K. Singer (Dr. Singer) offered a wholly different diagnosis. He was firmly of the view that this was a case of malingering. Even if he were to offer her the benefit of the doubt, it would at most be a mild case of PTSD which she would certainly overcome with a period of treatment. He saw no reason why she could not return to a useful working life as before.
4. From the outset, it seems clear that the plaintiff's credibility must feature largely in the assessment in view of the conflicting positions of the psychiatric experts. It seems patent that clinical diagnosis of PTSD would by necessity involve evaluations of a patient's complaints and the expert's observation of his patient. That much was a common thread in the evidence of both seasoned psychiatrists. It was the defence case that the plaintiff had by subterfuge managed quite ably to pull the wool over the eyes of Dr. Yu. The defence responded by querying whether she had such consummate skills to bamboozle not only Dr. Yu but a whole host of medical practitioners. I must confess that this issue has troubled me considerably as there was no way of reconciling the evidence of Dr. Yu and Dr. Singer. Their opposing views were stark and uncompromising.
5. The plaintiff obtained judgment on full liability after trial and now claims damages for pain, suffering, and loss of amenities, pre and post trial loss of earnings, loss of earning capacity, and medical and other expenses.
Genuine case of PTSD or Malingering?
6. The assessment over-ran considerably. In all that time, I have had ample opportunity of clearly observing the plaintiff from up close when she was in the witness-box and as she sat or stood up for periods at a time, seemingly to obtain relief from discomfort at the back of the court. From the very beginning, she wore a pained expression. That appearance did not alter throughout. If her account was genuine, she must have been suffering a great deal just from the look of her. She moved very slowly about when she returned to or departed from the witness-box. At one stage, she even had to support herself on an umbrella as she moved about. It was indeed a sorry sight to behold. Quite expectedly, Miss Lau counsel for the defence took the plaintiff to task and sought to demonstrate that she was not to be believed.
7. Miss Lau has very ably demonstrated on a number of matters that the plaintiff was capable of exaggeration. She was also evasive. This is of considerable significance when I come to my deliberation as the case involved complaints of psychological and psychiatric problems that could easily be feigned or exaggerated.
8. The plaintiff was cross-examined at length on her version of her conduct during the traffic collision. The account in her witness statement suggested that on realising that she had been bumped into from the back and that the defendant was about to depart from the scene, she had run after the slowly moving vehicle. She tapped on the driver's door to draw the defendant's attention. The defendant looked at her and totally ignoring her, proceeded to move on. That was when she said she ran to the front of the light goods vehicle near the windscreen and blocked its progress. An exchange then followed between the plaintiff and the defendant. If all that were true, it seems clear that the plaintiff must have had her wits about her and did not appear to have been too traumatised or frightened by the impact, which in any event, was not heavy. She would have been bowled over or thrown some distance forward had it been otherwise. The collision could hardly have been described as a life threatening occurrence according to Dr. Singer, but as Dr. Yu explained, it was the plaintiff's own perception that mattered and she, having dwelled upon the event and concluding how fortunate it was that she had escaped serious bodily harm, began to exhibit symptoms of PTSD.
9. Under cross-examination, the plaintiff sought to retract from that account at least in so far as to whether she had run or walked over to confront the defendant. She deliberately side-stepped pointed questions in this regard. At first she was adamant that she had not run at all but had merely walked over to the vehicle. Counsel, not satisfied with her response pursued the matter. The plaintiff clearly understood the difference between walking and running and even offered the tenses for the word run, adding that she tutored her sons in English. I am satisfied that for some one like herself educated to Form 5 standard and who has worked as an insurance agent explaining the terms of policies to prospective clients, she would only have been too well aware of what the term 'ran' meant as she and counsel used that word. Yet she suggested she did not comprehend the expression in English. When pressed further, she offered that she was foolish and pleaded for this line of questioning to stop. I found the plaintiff deliberately evasive. Questions were put to her plainly and accurately interpreted were decidedly ignored. She had to be cornered before admitting that she really did mean to run when the expression was used in the statement.
10. In chief, it was her case that after the vehicle collided with her, she felt very weak and almost fainted. Some kind passers-by got her a stool or chair to rest to await the arrival of the ambulance. She also felt severe pain at two locations on her back, was dizzy and vomited. This was clearly an embellished account not reflected in any way in her witness statement. She was patently evasive when confronted with her witness statement in my considered view.
11. She was also given to selective memory recall. She endeavoured to explain that her memory had drastically deteriorated post the accident. It was her evidence that her recollection of 1997 was hazy and that medication had instilled a sense of emptiness in her. It was a pervasive condition that had continued to trouble her, rendering her incapable of precise recollection, even of significant events. When she wanted to, her recollection was detailed and vivid to the point of her being able to relate conversations she had chronologically and precisely. Her evidence about her discussions with a fellow patient occupying the next bed at Queen Elizabeth Hospital during a subsequent admission and with Miss Woo of the Social Welfare Department and the circumstances surrounding the making of the agreement with the recovery agent vividly demonstrate this point.
12. I have no difficulty in concluding that the plaintiff was in full charge of her mental faculty when she appeared at the assessment and chose to answer often at great length questions that she perceived to be innocuous. When she found herself pursued unrelentingly in cross-examination on matters she would rather not discuss, she would plead forgetfulness or break down in sobs.
13. She chose admission to St. Theresa's Hospital for reasons of her own despite the diagnosis and treatment at Queen Elizabeth Hospital that there was really nothing wrong with her beyond an insignificant contusion on the lower back. She asserted that the government doctor advised her to be admitted, a fact running entirely counter to the hospital notes of Queen Elizabeth Hospital. She also stated that she had an aversion to public hospitals so she declined the advice and instead headed for St. Theresa's Hospital. There she said she had complained to the physicians of back pain radiating to the right muscle and thigh, right side pain and of feeling cold. Yet the only complaints recorded were as listed at bundle D496. What were noted there were dizziness, front chest aches, back ache and breathlessness. As for shortness of breath, Dr. Yu suggested that it was a matter that should have been looked into by the psychiatrist at St. Theresa's Hospital as it was one of the somatic symptoms of PTSD. He ventured to suggest that the doctor had missed this indication and therefore the chance to make a proper diagnosis much earlier on. If the plaintiff had indeed informed the doctors at the private hospital of her other complaints mentioned above, such matters would have been reflected in the hospital records. Furthermore, had she been as ill as was suggested, she would not have been granted the large amounts of home leave (15 occasions in all) during her stay at St. Theresa's Hospital. Were the doctors there to have concluded that she was seriously injured by the accident, it would seem strange that they would have permitted her to return home as often as she had done. From their clinical notes, it seemed that she was basically managed conservatively for musculantender strain. I found her reason for taking home leave totally unconvincing, even granted her stated concern for her children. At one stage, she suggested that her doctor was on vacation, so she absented herself from the hospital for the same periods. If, indeed, she was as unwell and had to be hospitalised, why would she return home so often? During her absences, she said she attended two follow-up sessions at the Accident and Emergency Department of Queen Elizabeth Hospital on 23 and 31 December 1997 and obtained sick leave certificates, which she could easily have acquired from St. Theresa's Hospital. As noted, no follow-up had been suggested when she was discharged from Queen Elizabeth Hospital. If she was feeling unwell on those two occasions, one would have expected her to promptly return to the private hospital. One of the doctors at St. Theresa's Hospital diagnosed that clinically she really had no medical problem and advised her accordingly. Under cross-examination, the plaintiff finally admitted that she would not have gone home had she been unwell at the time.
14. When questioned about her resorting to recovery agents to pursue her claim for damages, she began to cry most audibly. Her voice started to break up. At that time, I had moved my chair even closer to the witness stand and had a perfect view of her face. I could discern not a single tear despite all that sobbing and attempts to wipe her eyes. On other similar episodes, there clearly had been tears and the court has had to rise to allow her to compose herself and to have a rest and a drink of water. I was persuaded by what I saw that she had really not been crying at all, but might well have been endeavouring to do so for my benefit. I found her performance most unconvincing.
15. Over time, the plaintiff has added to her litany of complaints. These complaints have been adequately documented and included, inter alia, out of body experience as I would describe it for want of a better label, flash backs, nightmares (decreasing episodes with the passing of time), mental fatigue and slowness, memory impairment, anxiety, depression, a sensation that the tail bone was jutting out (not corroborated on examination), constant pain and a sensation of her body being divided in half. She said she avoided going out alone, was incapable of managing housework and could no longer play sports like badminton that she formerly enjoyed from time to time. She was unable to care for her sons, one of whom had to be fostered for a period. I accept this must have caused her a degree of worry and stress. The son has since returned to the family fold. According to her husband, the plaintiff was no longer functioning properly and even avoided contact with him. In short, the picture presented is that she has become a complete wreck.
The video and the medical expert evidence
16. The plaintiff was secretly filmed on video. The video was played more than once in court and I have watched it most closely and carefully as did the two psychiatric experts. The video basically recorded two episodes, the first being the plaintiff's trip to the MTR complex and the other, her departure from Dr. Singer's surgery after her consultation with him, showing her return journey.
17. The plaintiff was examined by her own expert, Dr. Yu on numerous occasions. He became her private physician after he had examined her on behalf of the Legal Aid Department. He had seen her privately on some 6 occasions. On every occasion, he noticed that she would limp in his presence without fail. His diagnosis was that her mental condition had worsened. On 6 December 1999, he noted that her principal complaints were, among other things, of physical discomfort, spasms, recurring nightmares, a feeling of apprehension and the sensation that the right side of her body was swollen despite the absence of physical asymmetry. He concluded that her depressive and emotional symptoms were symptomatic of PTSD. He frankly admitted that he was unable to see the plaintiff limp on the video evidence and had considered and discounted the possibility of malingering, having had the privilege to observe the plaintiff.
18. Dr. Yu was closely cross-examined with a view to establishing that the plaintiff might have been exaggerating or faking her condition rather than genuinely suffering from PTSD, mild or otherwise. He did not shift his stance at all, although he admitted that he had not been provided with certain information, such as the extensive home leave the plaintiff had taken, her inconsistent assertion that there was swelling in the lower back and between the shoulder blades accompanied by severe pain in those two areas on the day of the accident when the report of Queen Elizabeth Hospital indicated nothing more than localised low back pain, or her failure to mention that the tail bone was misaligned. On the last point, Dr. Yu said the plaintiff had either not mentioned the tail bone or he had forgotten to record the complaint. Had he been aware of these matters, he said he would have probed into them for a satisfactory explanation as they clearly had a bearing on the issue of malingering.
19. As for the video, Dr. Yu agreed that he was not able to see the plaintiff limping as she moved about. He would describe her ambulation as having been 'at a good pace'. He admitted that she was walking faster than when she came to see him and that would alert him to the possibility of malingering. However, having seen the tape and following his own examination of the plaintiff, he remained satisfied that there was no inconsistency at all. He agreed that the genuineness of a patient's complaints was an essential feature of any diagnosis of malingering. I should also add for completeness that he considered that the plaintiff did not suffer from either long or short term memory problem. Her problem was really one of impaired concentration.
20. Dr. Singer was firmly of the view that the plaintiff was malingering and was not suffering at all from PTSD. He very helpfully explained that exaggeration would mean genuine complaints have been amplified whereas with malingering, there would be no basis at all for the conditions complained of. As far as concerned him, there was no medical basis for her complaints of right sided body discomfort or sensation, of pain or numbness. He was unable to find any physical cause for them. In any event, pain he added, was not a feature of PTSD. If she did suffer from such pain, that would be psychogenic pain and he would not have expected her to walk normally or well at times. For a diagnosis of pain disorder a clear cut psychological factor such as threat, loss or life threatening event would be required. Dr. Singer found no such attending psychological element in this case. So far as he could tell, the accident could hardly have been described as life threatening. Dr. Singer had described some of her symptoms as bizarre.
21. Constant medical consultation and hospitalisation were minor factors in diagnosing malingering. He had considered the medical history of the plaintiff and clearly had taken this matter into consideration, giving it no more weight that it deserved as he said.
22. From his understanding of the accident itself, Dr. Singer opined that the plaintiff did not seem to have reacted to the actual trauma of the collision. Great fear, horror and helplessness, he said, were required for a diagnosis of PTSD. If she had chased after the van driver and remonstrated angrily with him, it would suggest that she had not been particularly frightened by the accident. Anger he said was the very antithesis of fear and helplessness. The fact that she was able to run after the vehicle and take the defendant to task (which I find the plaintiff clearly did), suggested to him that she had not become helpless. In his view, fear and a sense of helplessness was not a picture projected to him in the circumstances. For PTSD, the trauma should be severe and life threatening. He further opined that a patient's experience and interpretation should be considered but in the medical literature brought to his attention in court, he confirmed that the proper approach was to concentrate on severe, life threatening events or threats of serious injury to person. These he said would be properly causative of PTSD.
23. When Dr. Singer examined the plaintiff he observed that she walked with a slight limp. She made no complaints of limping to him. I noted that she had also limped quite markedly on the right side of her body on occasions in court. Her movements as I was able to observe had been slow and difficult. At this juncture, I turn to the video evidence.
24. Mr. Wong, counsel for the plaintiff had to agree that the plaintiff was walking quite normally in the video. The plaintiff herself suggested that her condition had improved at the time when she was filmed. The video evidence plainly demonstrated in my considered opinion that the plaintiff was able to move about freely and totally without difficulty. I would describe her walk as lively with her hands swinging by the side of her body as one would expect a normal person to walk. In the first segment, she was seen to emerge from a building and saunter through a park, before making her way up the incline of a pedestrian footbridge. She had apparently covered quite a good distance on foot with no limping at all. She had no problem raising her right arm and pointing with it at one stage.
25. The 2nd portion of the video captured her descending an escalator with her husband after visiting Dr. Singer. As the husband went into a telephone booth to make a telephone call, she waited for him outside on the pavement. She was standing upright and not seen to be shifting her weight to either leg. They then proceeded to the MTR with the husband's arm round her shoulder. There was no observed limping again. She was seen to mount steps without problem. All the while, she and her husband were seen chatting with each other. The following sequence also revealed that she was able to walk normally as she headed towards her destination. In my view, her walking ability was plainly normal. She was also filmed outside a supermarket talking with a woman. Once again, nothing out of the ordinary could be seen. She did not appear to be in pain.
26. Mr. Wong actually conceded in his submissions that the plaintiff might not have been a very convincing witness in court. That would, in my view, be an understatement. I found her totally lacking in veracity, and given to exaggeration. She was a completely unbelievable witness. I find that she was prepared to and did at great expense and energy, even at the expense of her own sons, one of whom had to be put out for fostering for a period, to mount a case for compensation when she must have realised that a simple bump and a mild back contusion would not serve her aim. I do not lightly come to his conclusion as many people have been taken in, including Dr. Yu and the many private practitioners she had consulted. She played her chosen role to the hilt, but a crack in her mask had developed. I was not in any way fooled. Dr. Singer (whose evidence I prefer to that of Dr. Yu) clearly saw through the smoke screen and so did I. I have no doubt that Dr. Singer was an objective expert. He dealt with all the issues to my entire satisfaction. His expert opinion I wholly accept. Dr. Yu did not satisfy me at all. He was obviously taken in by the plaintiff's account and had failed to adequate address some of her inconsistent complaints as submitted by Miss Lau. There was no question that he was biased, which he clearly was not even though she had been his private patient for some time.
27. In summary, I conclude that the plaintiff did indeed malinger and presented complaints when there was no basis for them. She had received no more than a mild bump on the back that had been properly and adequately treated with analgesics. There was no need to be admitted to St. Theresa's Hospital or for all the subsequent medical attention (including bonesetter's fees) she sought and obtained. These are clearly expenses that she will have to bear herself.
28. Whatever loss of earnings to date that she might have suffered were the fruits of her own ill-fated scheme. The defence should not and will not be held responsible for compensating her for past and future loss of earnings. I am also not persuaded on the evidence that there was any loss of earning capacity following the very trivial accident. Her claim for loss of housekeeping capacity and future medical costs was equally incompetent and will be dismissed.
Pain, suffering and loss of amenities
29. What then would be a fair and proper award for such minor injury that the plaintiff had sustained? The cases and authorities cited by the plaintiff are no longer apt in view of my findings. Miss Lau referred me to Hayley Burton v Adrian Cannon, QBD (HH Judge William Crawford QC) 13/4/2000 where the plaintiff had been caught out by video evidence. The judge found that the claimant had exaggerated the effects of the whiplash she had sustained in a motor accident and awarded her L2,000.
30. For the plaintiff's legitimate injury, an award of $30,000 would be sufficient recompense in my view. That is the sum she shall receive at the end of this exercise.
31. As she has succeeded in one aspect of her claim, she will be awarded the costs of the assessment on party and party basis, taxed if not agreed with certificate for counsel. Legal Aid taxation of the plaintiff's own costs is ordered. There will be liberty to apply to vary this nisi order for cost within 14 days hereof. Finally, there shall be interest on the sum of $30,000 at 2% p.a. from the date of the writ to the date hereof.