LI YIN YUK v. NG CHI FAI AND ANOTHER

DCPI 2229/2019

[2022] HKDC 1394

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2229 OF 2019

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of the Plaintiff's damages in a personal injury case.

2.  On 26 June 2019, the Plaintiff commenced the present proceedings against the 1^st and 2^nd Defendants (collectively known as the “Defendants”) for damages for personal injuries, loss and other damages suffered as a result of an accident at work.  She claimed that such accident was caused by negligence, breach of common duty of care, breach of statutory duty and/or breach of employment contract on the part of the Defendants and its servants and/or agents.

3.  By a Consent Order filed on 27 May 2020, interlocutory judgment on liability was entered in favour of the Plaintiff against the Defendants with damages to be assessed.

The Plaintiff’s injuries and treatments from Hospitals/ Clinics

4.  The Plaintiff was employed by the 2^nd Defendant as a cargo handler since April 2013 and was assigned to work in the Cathay Pacific Cargo Terminal (“the Cargo Terminal”).  On 1 July 2016, while the Plaintiff was working and walking in the Cargo Terminal, she was knocked down by a tractor which was then driven by the 1^st Defendant in the course of his employment with the 2^nd Defendant (“the Accident”).  As a result, the Plaintiff suffered back injury and was admitted to the Accident & Emergency Department (“A&E”) of North Lantau Hospital, and was later transferred to the Orthopaedics & Traumatology (“O&T”) of Princess Margaret Hospital (“PMH”). 

The orthopaedic condition

5.  According to the medical report dated 18 January 2018 of the O&T of the PMH, the Plaintiff complained of back pain and developed acute retention of urine when she was admitted to the hospital after the Accident.  There was tenderness over her sacral area and numbness over her lower limbs.  Radiographs of her knees, legs, ankles and feet showed no fracture.  Subsequently, CT scan of the pelvis on 4 July 2016 showed non-displaced fracture of the S5 vertebra and the MRI of the lumbosacral spine performed on the same day showed no disc herniation or cauda equine compression.  She was treated conservatively with analgesic and physiotherapy.  She was then discharged from the hospital on 10 July 2016.

6.  The Plaintiff was referred to the Physiotherapy Department of PMH and had received 52 sessions of physiotherapy treatment for her back pain between 22 July 2016 and 10 April 2017.  She also started receiving work rehabilitation service from 8 December 2016 at the Occupational Therapy Department of PMH.  On 9 March 2017, her overall work capacity was assessed to be not matched with the previous job demands as a tow driver in airport.  The occupational therapy report dated 22 December 2017 indicated that the Plaintiff planned to change job with lesser physical demand and she was discharged on 10 March 2017.

7.  Another MRI scan of her lumbosacral spine was performed on 28 March 2017 showing minimal spondylolisthesis of L5 on S1 and mild bone marrow edema in S1 vertebral body. There was also mild spinal stenosis at L5/S1 level due to disc bulging.  The bulging disc was in contact with both S1 nerve roots near the facet joints, and mild neural compression may be present.

8.  At the follow-up on 21 April 2017 at the orthopaedic out-patient clinic of PMH, it was reported that she complained of on and off back pain with stiffness on her back in active flexion.  Radiograph showed that the fracture S5 vertebra had healed and since her orthopaedic condition was static, she was referred to the Medical Assessment Board on 21 April 2017 but such assessment had to be adjourned pending the medical report from the Psychiatric Department.   

9.  At the follow-up on 29 September 2017, the Plaintiff’s back pain was reported to be static despite her complaints about pain radiating to both soles and numbness on bilateral calf.  The sick leave granted by PMH in respect of her orthopaedic injuries caused by the Accident was from 1 July 2016 to 1 June 2017.  

10.  Despite the Plaintiff’s back pain was reported to be static, medical record from Ted Care Medical Centre (“TCMC”) showed that the Plaintiff attended 7 treatments for her back and lower limb problems by Dr. Yen Chu Hung between 1 March 2018 and 31 July 2018.  She was suggested to have surgery L5/S1 discectomy, which is not at the level of the injury site at S5 vertebra. 

11.  A referral letter dated 25 January 2021 from Tsing Yi Cheung Hong General Out-patient Clinic (“GOPC”) showed that the Plaintiff made a strong request to be referred to a pain clinic for her chronic low back pain.  She complained of pain walking up stairs and with a walking distance of 45 minutes.  Physical examination showed she had full lower limb power with lower limb neurology and her sensation was intact.  Report showed that she was not in need of regular analgesics and medical notes showed that she was advised to be assessed by orthopaedic first before being referred to the pain clinic.  It is apparent from the medical notes that the Plaintiff resisted to this suggestion but insisted on a referral letter.

The psychological/ psychiatric condition

12.  Besides her orthopaedic injuries, a Clinical Psychology Adult Intake Form of Caritas Medical Centre (“CMC”) showed that the Plaintiff was assessed on 22 November 2016.  The main complaints came from the Plaintiff’s husband who reported that the Plaintiff appeared to be suffering from irritability and nightmare.  The Plaintiff said she suffered from sleeping problem with fearful dreams, she had fear of people walking into her from the back and when crossing road, which she felt compulsive in checking the traffic repeatedly.  It was also reported that there were intrusions and nightmare shortly after the Accident but the frequency had then reduced significantly.  The Plaintiff was impressed to be suffering from symptoms of post-traumatic stress disorder (“PTSD”).

13.  The Plaintiff continued receiving clinical psychological service at the CMC until 1 December 2017 when her case was terminated upon her agreement.  It was reported that the Plaintiff was emotionally calm and stable and her speech was coherent and relevant.  No more avoidance of road crossing was reported and no more nightmare, startle response or increased irritability.

14.  According to the medical report of Dr. Bonnie Chiu of Kwai Chung Hospital (“KCH”) dated 24 January 2019, the Plaintiff was first seen at the West Kowloon Psychiatric Centre (“WKPC”) on 10 February 2017 with complaints similar to those she reported to CMC.  She had hypervigilance, exaggerated startle response and her mood was tense and anxious easily.  The Plaintiff complained of distress secondary to her low back pain problem and the diagnosis was PTSD. 

15.  The Plaintiff continued her treatment at the WKPC even after the termination of her psychological service at the CMC.  The last session with WKPC was on 12 October 2018 where she reported that her mood had improved though with occasional nightmares.  The prognosis of her mental condition was reported to be good and the degree of impairment and impact on her vocational capacity would depend on her physical condition.  Sick leave was granted from 26 May 2017 to 20 July 2017 followed by 7 individual dates where she attended the follow-up sessions at the WKPC.  

The Plaintiff’s Medical Assessments

16.  On 27 December 2018, the Plaintiff was assessed by the Employees’ Compensation (Ordinary Assessment) Board to suffer back injury with S5 fracture resulting in residual back pain and lower limbs numbness with 6% loss of earning capacity.  Sick leave from 1 July 2016 to 13 December 2018 was certified to be necessary as a result of the injury. 

17.  On 23 August 2019, the Plaintiff was assessed by Dr. Andy S.K. Cheng (“Dr. Andy Cheng”) who is a registered occupational therapist.  He commented in his Functional Capacity Evaluation Report that the Plaintiff’s demonstrated functional conditions were satisfactory which was consistent with her perceived percent of recovery but he also observed that the Plaintiff’s perceived functional ability to perform work tasks that involves her spine was very low.  It was noted that there was a significant inconsistency of perception between self-rated percent of recovery and functional ability, and thus her work-related self-efficacy belief was suboptimal. 

18.  Dr. Andy Cheng concluded that the Plaintiff might have difficulties in resuming to her pre-accident occupation, which required some 30 pounds lifting strength in a frequent manner.  He nonetheless suggested that the Plaintiff should take up lighter duties with weight lift of less than 10 pounds for 3 months and resume her full normal duties if there is no deterioration in her back pain.

19.  The Plaintiff was further assessed by Dr. H.Y. Kwok (“Dr.  Kwok”) on 25 September 2019.  Physical examination showed stiffness over the lower back and the Plaintiff could barely squat and rise with support.  Dr. Kwok issued a Form 1 Certificate certifying the Plaintiff to be permanently unfit for her pre-accident job.

Joint Orthopaedic Report

20.  A joint orthopaedic report dated 12 November 2020 (“the JOR”) was prepared by the Plaintiff’s expert Dr. Lee Po Chin (“Dr. Lee”) and the Defendant’s expert Dr. David H.F. Cheng (“Dr. Cheng”).  The Plaintiff was jointly examined by these experts on 3 September 2020, where both experts agreed that the Accident caused her contusion of lower back with an undisplaced fracture of S5, which had healed without a trace.  Both experts found that the Plaintiff’s back was entirely normal with full range of movement, no neurological complications and no weakness, and thus she had reached her maximum medical improvement with no further treatment required. 

21.  Notwithstanding Dr. Lee’s opinion that the Plaintiff would have impaired ability to lift heavy weights, both experts opined that the effect of the Plaintiff’s injury is mild and she is physically fit to resume to her pre-accident occupation.

22.  The Plaintiff’s impairment was assessed at 4% by Dr. Lee with loss of earning capacity at 6% whereas Dr. Cheng opined not more than 2% for both headings.

Joint Psychiatric Report & its Supplemental Report

23.  The Plaintiff was examined by her expert Dr. Law Wun Tong (“Dr. Law”) and Dr. Yu Wai Tak (“Dr. Yu”) for the Defendants on 2 September 2020. A joint psychiatric report was compiled on 31 December 2020 (“JPR”) and a joint supplemental psychiatric report dated 22 March 2021 (“JSPR”) was furnished after both experts were provided with a surveillance video and an investigation report of the Plaintiff.  

24.  In gist, both experts agreed with the WKPC’s diagnosis that the Accident contributed to the Plaintiff’s PTSD.  Notwithstanding Dr. Law’s recommendation that the Plaintiff should have another 6 sessions of psychiatric treatment as she still suffered from residual physical symptoms, both experts agreed that no long-term psychiatric treatment is required and the Plaintiff had reached the maximum medical improvement.  Her symptoms were of mild intensity as described by both experts.

25.  In the JPR, both experts opined that the Plaintiff was mentally unfit to resume her pre-Accident duties but after reviewing the surveillance video, Dr. Yu was of the opinion that the Plaintiff was only mentally unfit to work at the scene of the Accident as this might worsen her mental symptoms. The Plaintiff was otherwise perceived to be mentally capable of taking up any jobs which she is physically fit to do so. 

The Plaintiff’s evidence and her credibility

26.  The Plaintiff in her 1^st witness statement averred that her quality of life has been hampered due to the back pain and she believed such pain was caused by the Accident.  The intensity of the pain was severe enough that she could not manage to do most of the housework nor food shopping for her family.  Her walking tolerance was limited and would feel numbness on her legs and feet. She could no longer enjoy her pastime such as dancing and hiking.  She suffered from sleep disturbance and had occasional nightmares.  She said she would feel scared when recalling the Accident or encountered similar accidents on the street.

27.  The Plaintiff did not elaborate on the pain frequency in her witness statement but the JOR showed that she indicated to the experts that she suffered from constant back pain with 15 minutes walking tolerance and would take 2-3 analgesic tablets a week.

28.  The Court borne in mind that the Plaintiff’s 1^st witness statement was prepared and signed by her in September 2020, which is the same month as she was examined by her orthopaedic experts.  The pain apparently persisted that she insisted on a referral letter to the pain clinic about 4 months later from Tsing Yi Cheung Hong GOPC, where she reported to have a walking distance of 45 minutes with pain walking up stairs.          

29.  It is observed that the Plaintiff was being evasive when giving oral evidence in Court.  She changed her evidence when she was pointed out by the defence counsel Mr. Chan that the answer she gave under cross examination was contradicted by documentary evidence such as contents of medical reports.  And after being challenged by Mr. Chan on few occasions, “I don’t recall” and “I don’t remember” became the Plaintiff’s go-to answers to any potentially challenging question.

30.  The Plaintiff agreed under cross-examination that she did not suffer constant pain which was different from what was recorded in the JOR.  The duration she needed to rely on a walking stick after the Accident became even more of a mystery after her contradictory answers given in the witness box.  When it was pointed out to her that the medical records from the CMC showed that her clinical psychology treatment was terminated due to her improvement, she could not explain to the Court why she told the psychiatrist experts that her clinical psychology treatment was terminated because there was no improvement. 

31.  The overall demeanour of the Plaintiff in the box would not allow the Court to treat her as a credible witness, rather I would have to assess her condition by considering all available impartial documentary evidence carefully.

The extent of injuries the Plaintiff suffered from the Accident

32.  It is clear from the JOR that the Plaintiff’s undisplaced fracture of the S5 was no more than a tiny hairline crack and had healed without a trace.  Her treating doctors from the government hospital also opined her condition became stabilized and static from late April 2017.  It must be borne in mind that the (1) lumbarization of the Plaintiff’s S1 vertebra, (2) minimal spondylolisthesis of L5 on S1, and (3) mild spinal stenosis due to disc bulging are agreed by the experts to be pre-existing and of degenerative changes.  Neither of them is of the opinion that the Accident triggered the Plaintiff’s pre-existing degeneration to become symptomatic, nor do they opine that the Accident aggravated or exacerbated the Plaintiff’s pre-existing condition to become symptomatic. 

33.  Mr. Chan suggested that the Plaintiff has exaggerated her pain frequency/intensity by highlighting the 3 Waddell’s signs found by both experts, and contended that all her complaints were subjective without any physical impaired ability.  The Court nonetheless is of the view that it is more likely than not that the Plaintiff did or has been suffering from various degree of pain since the Accident, but the Plaintiff has failed to prove to the Court that all such pain was contributed by the Accident.

34.  The Court finds that it is more probable that the pain she has suffered from early 2017 was due to her spondylolisthesis and spinal stenosis at the L5/S1 region.  It is common knowledge that these two conditions are developmental, and bearing in mind that the S5 fracture was healed and became static in around April 2017, the Court finds that the only reason explaining her alleged persistent pain would be the continued degeneration at her L5/S1 vertebra.  In fact, even the Plaintiff’s expert Dr. Lee opined that “the possible mild S1 nerve roots compression might cause irritation accounting for the numbness” and “the weakness can be due to inhibition by pain”.

35.  As to the Plaintiff’s urinary problem, the Court accepted a strong link between her acute urinary retention and the Accident, but as medical report suggested, such urinary problem was resolved before she was discharged from the PWH and she was able to wean off the urinary catheter.  Despite the Plaintiff was later seen by PWH in relation to her urology problem, no evidence suggested that her lower urinary tract symptoms had anything to do with the Accident itself.

36.  As such, the Court is of the view that the overall physical residual symptoms are limited to the pain and sufferings up until her S5 fracture was healed and her condition became static in April 2017, as commented by the government doctor.

37.  The Plaintiff suffered from PTSD as evidenced from the reports of the psychologist of CMC and the psychiatrist from WKPC.  The Court accepted their diagnosis as well as both the expert psychiatrists’ findings that such condition was caused by the Accident. 

38.  The Plaintiff was asked under cross examination as to the conflicting evidence in relation to the reason for the termination of her clinical psychological treatment at the CMC. On one hand, the JPR showed that the psychiatric experts were informed by the Plaintiff the reason she stopped the psychological treatment was because her condition did not improve, on another hand, the medical notes from CMC showed such termination in December 2017 was agreed by the Plaintiff as her condition had improved so much that she no longer had avoidance of road crossing, nightmare, startle response or increased irritability.  The Plaintiff gave fragmentary evidence when explaining such inconsistency and was criticized by Mr. Chan that she had exaggerated her condition.  It is therefore submitted by the Defendants that the Plaintiff no longer had any, or any serious psychiatric/psychological disabilities by 1 December 2017. 

39.  As discussed earlier in paragraph 31 hereinabove, the Court finds the Plaintiff being an incredible and unreliable witness, and I am of the view that the Plaintiff probably wanted to impress both the experts the severity of her PTSD condition and to justify her needs for seeking psychiatric treatment.  In spite of that, both psychiatric experts agreed that the Plaintiff had received appropriate treatment from both psychologist and psychiatrist, and her residual mental symptoms are of mild intensity.  The Court also borne in mind that no long sick leave was granted to her by the treating psychiatrist after 20 July 2017 but only odd dates she needed to attend the follow-up sessions.  As such, I am ready to accept the psychiatric experts’ opinions that her condition improved very well leaving her with very mild symptoms.   

PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

40.  The Court considered that the Plaintiff’s residual disabilities derived from the Accident, both orthopaedically and psychiatrically, were not as serious as what she claimed.  I found that she has suffered genuine residual pain and numbness on her lower back and legs, but she has failed to prove such pain was caused by the Accident itself.  Her inconsistent evidence as to how long she needed to rely on walking aid together with all her alleged subjective pain complaints as opposed to those physical examination showing satisfactory functional ability made it difficult for the Court to assess the true extent, duration and severity of her sufferings and disability.  As such, I prefer the opinion from the PWH treating doctors and believe she had recovered well by April 2017. From the psychiatric aspect, the Plaintiff was opined by all treating professionals and both experts to have improved with insignificant symptoms by December 2017.  In light of this, the Court considers most of her pain and suffering caused by the Accident would have ended by late December 2017 but with some very mild psychiatric symptoms until her last appointment with WKPC in October 2018.

41.  In considering the proper award for damages of PSLA, a number of authorities been cited to me as to the proper quantum to be applied in this case under this head of damage. It was submitted by the Plaintiff’s counsel Mr. Wong that the appropriate award should be in the region of $350,000 whereas the Defendants contended that $200,000 would be fair.

42.  The Plaintiff clearly suffered from orthopaedic and psychiatric injuries from the Accident, albeit none of them would leave her with any significant and permanent symptoms.  She had acute urinary retention on the first few days during her hospitalization and I have no doubt it would cause her discomfort and pain.  I also believe that she did suffer pain derived from the S5 fracture at least for the first 6-8 months, which also brought inconvenience to her life.  The PTSD would almost certainly carry certain grave consequences to the relationship between the Plaintiff and her family, yet given most of the psychiatric symptoms subsided by December 2017, family discord would be lessened significantly.  I find that a proper figure under this head of damages, after taking into account of inflation, is $300,000.

PRE-TRIAL LOSS OF EARNINGS & MPF

Duration of sick leave

43.  The recommended duration of sick leave from both orthopaedic experts did not differ greatly.  Dr. Lee assessed 14 months from the Accident would be appropriate whereas Dr. Cheng suggested 11 months.  Likewise, the duration of sick leave from two psychiatric experts differed by one month where Dr. Law recommended to have sick leave up to 9 May 2017 but 1 April 2017 for Dr. Yu.  

44.  Sick leave from 1 July 2016 to 13 December 2018 was granted to the Plaintiff under Form 7 of the Employees Compensation Assessment Board (“Form 7”).  The Plaintiff submitted that the Court should consider adopting the Form 7 recommended sick leave period, or alternatively to adopt Dr. Lee’s assessment that granted up to 1 September 2017 with additional three months after the expiry to allow the Plaintiff to look for alternative employment. Sick leave is therefore suggested to grant up to 31 December 2017.

45.  The Defendants referred to the Plaintiff’s orthopaedic and psychological treatments and suggested to the Court that sick leave period should be granted to the end of the Plaintiff’s clinical psychological treatment until 1 December 2017. 

46.  It is trite that the Court is not bound by the sick leave period assessed by doctors or the EC assessment board and I do not accept the sick leave period granted under Form 7 as the Plaintiff’s conditions, both orthopaedically and psychiatrically, became static with mild symptoms by December 2017.  It can be seen that the disagreement between the Plaintiff and the Defendants as to the duration of sick leave (should the Court disagree to adopt Form 7) is merely a month difference.  I am ready to accept the Plaintiff’s counsel Mr. Wong’s suggestion to provide three months for the Plaintiff to seek for alternative employment. Accordingly, the sick leave period would be from 1 July 2016 to 31 December 2017.

Pre-trial monthly earnings

47.  It is not in dispute that the Plaintiff earned an average monthly income of $17.326.71 plus MPF from July 2015 to June 2016.  A comparable wages record (“Wages Record”) of three workers were agreed and submitted by the parties.  According to the Defence witness Mr. Ho’s statement, a Mr. Wong Wing Wa (“Mr. Wong”) whose wages were shown in the Wages Record, was employed by the 2^nd Defendant at the same time as the Plaintiff and shared the similar role and work title.  Mr. Wong retired on 31 December 2020 earning $15,372.69 and the Wages Record, after taken into account of other two comparable workers between January and June 2021, showed an average monthly income of $14,891.50 between July 2020 to June 2021.  However, according to the witness statement of the Mr. Ho, the average income of comparable workers on 17 November 2020 was $18,181.01, as such the Plaintiff submitted that the Court should adopt this higher figure as the Plaintiff’s average monthly income than the figure $14,891.50 being shown on the Wages Record.

48.  Although the 2^nd Defendant’s witness did not offer any explanation to reconcile such difference, I felt reluctant in accepting the figure $18,181.01 should be the average income for the entire 12-month period from July 2020 to June 2021.  The Court finds it more possible than not that the average income of the Plaintiff would continue to decrease during this period due to the pandemic and it is unlikely for any comparable workers to maintain the wages at $18,181.01 between January and June 2021.  As such, the Court will adopt the higher figure of $18,181.01 as the Plaintiff’s average income only for July 2020 to December 2020 while adopting the other two suggested figures showing between January 2021 and June 2021 in the Wages Record for calculation purpose.  The average monthly income of the Plaintiff from July 2020 to June 2021 is therefore ($18,181.01 + $14,796.19 + $14,505.63) /3 = $15,827.61.  The Court otherwise accepts the rest of the figures showing in the Wages Record.

The Plaintiff’s ability to return to her pre-accident occupation

49.  It is the Plaintiff’s case that she could no longer return to her pre-accident occupation and she could only work as a security guard or other less demanding jobs from 13 March 2019.  The Plaintiff relied on various reports including the occupational therapy assessment performed on 9 March 2017 which showed her overall work capacity did not match with her previous job demands as a tow driver at the airport.  The Plaintiff also relied on the Functional Capacity Evaluation Report and most importantly, the reference letter of Dr. Kwok who assessed the Plaintiff as unfit to return to her original duty and issued a Form 1 certificate on 25 September 2019. 

50.  The Defendants argued that the Court has never given leave to the parties to adduce the opinions stated in (1) the Occupational Therapist report, (2) the Functional Capacity Evaluation Report, and (3) the Reference Letter of Dr. Kwok as expert medical opinion evidence in this case.  The Defendants submitted that the Court should put more weight to the JOR, JPR and JSPR instead.

51.  In this connection, the Court was reminded of Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1, HCPI 204/2009 where Mr. Justice Bharwaney explained in paragraph 46 of his judgment that:-

“A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person. These are all matters of fact. Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact. However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from the court …”

52.  The Court has no hesitation in accepting the contents of the Occupational Therapist Report that was performed in early March 2017 but I also bear in mind that the MRI performed in the same month showed spinal stenosis at the Plaintiff’s L5/S1 level due to disc bulging.  In consideration of the expert opinions given in the JOR, the Court, as stated in paragraphs 32-34 hereinabove, is of the view that the Plaintiff’s physical inability to return to her pre-accident occupation is more likely due to the degenerative spine at L5/S1 than the Accident itself. 

53.  However, even if the Court is to put full weight to all the expert reports, the difficulty arises when considering the expert opinions of the JPR and the JSPR.  In the JPR, both psychiatric experts found there still existed some psychiatric symptoms to the extent that would still affect the Plaintiff’s working capacity.  In terms of her long-term capacity in returning to her pre-accident occupation, Dr. Law who was instructed by the Plaintiff, opined that she was mentally unfit to resume her pre-accident duties, as returning to the accident scene might worsen the mental symptoms.  While Dr. Yu did not propose any kind of suitable occupation to the Plaintiff, he agreed with the Plaintiff’s suggestion that being a security guard for 5-6 hours a day is a suitable alternative employment.  On the other hand, Dr. Law opined that “she (the Plaintiff) is not mentally capable of returning to her previous job as she is unable to overcome the fear associated.  Theoretically she may be able to cope after a specific cognitive behavioural program yet she is not motivated.  She has received training for other job and working as a security guard is possible.”

54.  While Dr. Yu opined that the Plaintiff “is mentally unfit to resume pre-accident duties, as returning to the accident scene might worsen the mental symptoms”, he did not propose any kind of suitable occupation to the Plaintiff but agreed with her suggestion that being a security guard for 5-6 hours a day would be a suitable alternative employment. 

55.  In the JSPR, both psychiatric experts were given the opportunities to comment on the surveillance video and the investigation report showing the Plaintiff going out.  While Dr. Law remained his earlier view, Dr. Yu changed his opinion to the followings:-

“Ms. Li is mentally unfit to resume pre-accident duties at the accident scene, as returning to the accident scene might worsen the mental symptoms.

However, she is mentally fit to resume the same type of pre-injury job (driving a dolly for transporting cargo) in a place other than the accident scene.

She told us, “She preferred a security guard job of 5-6 hours a day”. This is a suitable alternative employment but not the only suitable alternative employment.

She is mentally capable of resuming the same type of pre-injury job (driving a dolly for transporting cargo) in a place other than the accident scene, or taking up any jobs, with full or nearly full (95%) capacity, which she is physically fit to do so before or after the accident.”

56.  Mr. Wong for the Plaintiff submitted that since Dr. Yu in the JPR has already concluded that the Plaintiff has no more avoidance of road crossing at the time of the assessment and had considered the likelihood of the Plaintiff’s exaggeration of her mental symptoms/fear, the surveillance result in fact had added nothing new to Dr. Yu’s assessment and should not cause him to change his opinion in any way.  Mr. Wong further submitted that there is no reason for Dr. Yu to further refine the Accident scene to ‘spot of Accident’ after viewing the surveillance.

57.  The Court accepted Mr. Wong’s submission that the surveillance result added nothing new to Dr. Yu’s assessment but the Court found that Dr. Yu has in fact never changed his view.  Attention must be drawn to the specific instructions given to both the experts by the parties’ solicitors on page 2 and 3 of the JSPR, which read as follows:-

“Please clarify and comment on:-

a)Whether the Plaintiff has the symptoms of fearing of the accident scene;

b) If the Plaintiff has such symptoms, the degree and the extent of such symptoms;

c) Whether the Plaintiff is mentally fit to resume the same type of pre-injury job, i.e. driving dolly for transporting cargo, in place other than the accident scene.”

58.  As opposed to having his opinion ‘changed’, Dr. Yu was simply answering the questions posed by the parties’ solicitors.  It is the Court’s view that he never changed his stance but simply elaborated his opinions.  It must be borne in mind that Dr. Yu did say “Ms. Li is mentally unfit to resume pre-accident duties as returning to the accident scene might worsen the mental symptoms’ in the original JPR.  This strengthened Dr. Yu’s consistent view of the Plaintiff’s inability to return to her previous job was due to the fear she might develop if she goes back to where the Accident happened.  I do not see the need in articulating whether the Plaintiff should avoid returning to the accident scene or the spot of the accident since no evidence has been presented to this Court that the Plaintiff was offered another role by the 2^nd Defendant that she could avoid attending the place where the Accident happened.   

59.  The defence counsel Mr. Chan however submitted that the Plaintiff’s claim of fear of returning to the Accident scene was untrue, and thus the experts’ opinions of her inability to resume her duties should not be accepted.  Mr. Chan relied on the facts that first, the Plaintiff had made significant improvement by December 2017 as assessed by her then clinical psychologist at CMC.  Secondly, she had never expressed her fear of going back to the place of Accident to any of her treating doctors or experts, but such fear was only raised by her at the trial when giving evidence.  Thirdly, contrary to her alleged fear, in both her witness statements as well as the examination by the psychiatric experts, she expressed her keen interest in going back to her previous job but contributed her failure to her physical disability (and thus the result of her Form 1 assessment).  Last but not least, there were objective findings from the psychiatric experts that the Plaintiff was exaggerating her symptoms and/or the Plaintiff was not motivated to overcome the fear associated with the workplace.  Finally, the Plaintiff never communicated or discussed her desire to the 2^nd Defendant that she wished to continue her employment but accepted that she could not work at all due to her physical inability.  

60.  Most of these criticisms go towards the Plaintiff’s credibility and the Court accepted, as shown in the foregoing paragraphs, that the Plaintiff did tend to exaggerate her conditions and I ruled her as an unreliable witness. However, there is no sufficient reason for the Court to depart from the consistent opinions formed by both psychiatric experts.  It is certain that the PTSD suffered by the Plaintiff was caused by the Accident and it was not in dispute that the Plaintiff’s condition had greatly improved at the time of the joint psychiatric examination.  Despite Dr. Yu believed the Plaintiff had exaggerated her psychiatric symptoms and Dr. Law regarded she lacked the motivation to overcome her alleged fear, they nonetheless formed the view that the Plaintiff was mentally unsuitable to resume her duties at the place of Accident.  It is therefore plain that such conclusion was made after taking into consideration of the Plaintiff’s good prognosis and the incredible claims she made at the examination. As such, I have no hesitation in accepting the opinions from both psychiatrists that the Plaintiff is unfit to return to her previous occupation, which requires her to work at where the Accident happened.

61.  It is however another issue whether the Plaintiff could return to employment other than being a security guard.  It could be seen that being a security guard was not suggested by either of the psychiatric experts rather an idea proposed by the Plaintiff and agreed by them.  Both of them in fact agreed that the Plaintiff would be mentally fit to resume pre-accident duties but refrain from working at the scene of the Accident.  From an orthopaedic perspective, the Plaintiff relied on the medical report from Dr. Kwok who opined the Plaintiff is unsuitable to return to her original duties but as I explained in paragraphs 49-52, the disability caused to the Plaintiff from the Accident is very limited but any residual symptoms are likely to be contributed by her degenerative L5/S1.  Further, I am of the view that the Plaintiff has a strong tendency in exaggerating her pain and physical inability, and even if the Court was to put the same weight to the Reference Letter prepared by Dr. Kwok and the Functional Capacity Evaluation Report by Dr. Andy Cheng, it can be seen that the examination performed on the Plaintiff by Dr. Kwok would be much less thorough than what could be found in the Report prepared by Dr. Andy Cheng, who opined that the Plaintiff should take up light duties for the first three months so as to build up her work habit. 

62.  As such, I would prefer to adopt the JOR and Dr. Cheng’s reports that the Plaintiff is in theory fit to return to her pre-Accident occupation but somewhere other than the scene of the Accident.

63.  As Mr. Wong rightly pointed out that there is only one airport in Hong Kong, so if the Plaintiff is found to be unsuitable to return to her previous occupation being a cargo handler, the Court is left with no other suggestions what other employments would be suitable for her and how much she would likely earn.  In fact I envisage there are plenty job opportunities would be available from warehouses or container terminals that suit her skills and work experience, however the Court was not presented with any information as to alternative employment by either parties.  I am therefore bound to accept security guard or salesperson would be a suitable employment for the Plaintiff.

64.  The average income of the Plaintiff prior to the Accident was at $17,326.71 and the sick leave period was decided to be from 1 July 2016 to 31 December 2017, after which the Plaintiff should be able to earn an average monthly salary of $14,000.  With reference to the average earning of comparable workers during the pre-trial period, the total pre-trial loss of earning should be as follows:

July 2016 to July 2017: $23,451.98 x12 months x1.05

= $295,494.95

July 2017 to December 2017: $24,541.16 x 6 months x1.05

= $154,609.31

January 2018 to June 2019: ($23,436.33 - $14,000) x 6 months x1.05

= $59,448.88

July 2019 to June 2020: ($21,785.96 - $14,000) x 12 x1.05

= $98,103.10

July 2020 to June 2021: ($15,827.61 - $14,000) x12 x1.05

= $23,027.89

July 2021 to June 2022: ($21,606.78 - $14,000) x12 x1.05

= $95,845.43

June 2022 to mid-August 2022 (date of assessment): ($21,606.78 - $14,000) x 1.5 x 1.05

= $11,980.68

The total pre-trial loss of income is therefore $738,510.24

FUTURE LOSS OF EARNINGS & MPF

65.  The Plaintiff is deemed suitable to return to employment from 1 January 2018 and be earning not less than $14,000 per month.  The Plaintiff was 53 years old and 9 months at the time of the assessment hearing and contended that she would retire at the age of 60 but for the Accident.  It is submitted that a multiplier of 6 would be appropriate for the purpose of calculating the future loss of earnings, I reject this as the Accident has left her with very little symptoms but the exacerbating L5/S1 condition, as seen from the JOR, would more likely be the cause for her early retirement. In light of the above, a multiplier of 4 would be adopted.

66.  The future loss of earnings with a multiplier of 4 would be:-

($21,606.68-$14,000) x 12 x 4 x1.05 = $383,376.68

LOSS OF EARNING CAPACITY

67.  The Plaintiff claimed $84,000 under this head after revising by her counsel Mr. Wong.  An award for loss of earning capacity is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.  The Court is tasked to evaluate the present value of the future risk. 

68.  The Court views that the Plaintiff only suffered very little residual symptoms from the Accident and the only disability would be her psychiatric condition that could be triggered if she was to go back to work at the scene of the Accident.  Given that the Plaintiff has no such intention in resuming her pre-accident occupation, I am of the view that the compensation under the future loss of earnings will be well-covered her future risk in working life. I will therefore not make any awards under this heading.

SPECIAL DAMAGES

69.  This is agreed at $50,000.

Summary

70.  In light of the aforesaid, the summary of claim will be as follows:-

a.	PSLA	$300,000.00
b.	Pre-trial loss of earnings & MPF	$738,510.24
c.	Future loss of earnings & MPF	$383,376.68
d.	Loss of earning capacity	Nil
e.	Special damages	$  50,000.00
	Gross Total	$1,471,886.92
	Less EC	$1,077,751.27
	Total	$  394,135.65

Interest and costs

71.  Interest on general damages in the sum of $300,000 will be awarded at 2% per annum from the date of service of the writ to the date of 28 November 2022 and thereafter at judgment rate until payment.  Interest on other pre-trial loss and special damages will be awarded at half the judgment rate from the date of the accident to 28 November 2022 and thereafter at judgment rate until payment.  

72.  The Defendants proposed an award in the sum of $673,616.42 before deduction of the EC compensation at $1,077,751.27, and thus the Plaintiff should not be entitled to any damages in the common law claim.   As the Defendants have failed in meeting the awarded sum, they would have to bear the costs of this assessment.  I here make a costs order nisi against the Defendants in favour of the Plaintiff for the assessment of damages proceedings with Counsel’s Certificate, to be taxed if not agreed.  The above order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days’ period.

73.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

74.  It remains for me to thank Mr. Wong and Mr. Chan for the assistance they have rendered to the court.