SIU CHIN HUNG v. FLORA EDUCATION LTD

DCEC 1451/2022

[2026] HKDC 1480

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1451 OF 2022

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JUDGMENT

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A.  Introduction

1.  This is an application for compensation under the Employees’ Compensation Ordinance (Cap 282) (“Ordinance”).

2.  At the material times, the Applicant (“A”) was employed by the Respondent (“R”) as its Human Resources Manager. It is A’s case that, on 26 August 2020, he sustained personal injury from a slip and fall accident, after he stepped on packs of A4 paper in the filing room in R’s office (“Accident”).

3.  The Employees’ Compensation (Ordinary Assessment) Board (“Board”), both under the “Form 7” dated 15 November 2023 and the “Form 9” dated 27 March 2024, certified that the necessary period of sick leave by reason of A’s injury to be 3 years, with a permanent loss of earning capacity (“LOEC”) attributable to the injury at 10.2%.

4.  R was dissatisfied with the Board’s assessment. By a notice of appeal filed pursuant to section 18 of the Ordinance dated 22 November 2023, R appealed against the Board’s assessment under Form 7. By a further notice of appeal filed pursuant to section 18 of the Ordinance dated 5 April 2024, R appealed against the Board’s assessment under Form 9 (“R’s Notice of Appeal”).

5.  R’s Notice of Appeal raises three grounds of appeal:-

“(1) The Respondent denies that the alleged injuries were caused by the subject accident at all;

(2) The alleged injuries suffered by [A] (which are not admitted) does [sic] not justify such prolonged period of sick leave; and

(3) The assessment of loss of earning capacity of 10.2% is not justified. Medical evidence will be adduced at trial.”

6.  Although R initially contested liability to A’s claim (including the occurrence of the Accident), R eventually admitted liability on 27 August 2025, less than a month before the commencement of trial.

7.  As R further clarified at §12 of its Closing Submissions:-

“In this trial R withdraws the 1^st Ground [under the Notice of Appeal] only to the extent that liability has been admitted (but retains the part regarding causation […]) R relies on the 2^nd and 3^rd Grounds of Appeal set out in the Notice of Appeal […]”

8.  Accordingly, the trial focused on the assessment of compensation, taking into account R’s latest position as set out above.

B.  Key background facts

9.  A was born on 3 January 1973. At the time of the Accident he was 47 years of age. He was employed R as its Human Resources Manager, having held the position since 2016. He was earning a monthly salary of HKD 69,700.00.

10.  R operates an international school at Ho Man Tin with an office in Mong Kok. On the day of the Accident, 26 August 2020, A was working at R’s Mong Kok office.

11.  According to A’s declaration to the Labour Department dated 28 October 2020 and his Re-Amended Application dated 18 March 2024, at around 6:00 to 6:30pm that day when he was working overtime in the Mongkok office for an HR Audit, he entered the filing room to retrieve documents from the top drawer of a filing cabinet. There, he stepped on packs of A4 paper with both feet, lost his balance and fell onto the ground. During the fall, A’s neck and spine struck the handle of a filing cabinet behind him, and his right hand hit the ground.

12.  A was taken by ambulance to Kwong Wah Hospital (“KWH”) and admitted to the Orthopaedics and Traumatology Department (“O&T”).

13.  Upon physical examination, A’s upper limb power was found to be limited by wrist pain; no sensory deficit or myelopathic hand signs were noted. His lower limb neurological examination noted bilateral limbs power was reduced, but sensation and jerks were normal. His per rectal examination was intact. His right little finger showed extension lag of ~10 degrees. X-ray of his cervical, thoracic, lumbrosacral spine and right hand showed no acute fractures. CT of his brain and spine was unremarkable. MRI of the whole spine showed no fracture nor cord or cauda equina compression. A was given analgesics and physiotherapy, and a mallet splint was given to his right little finger. He was discharged after seven days in hospital on 2 September 2020.

14.  Prior to the Accident, A had been in general good health. There was no record of any attendance by him at any hospital under the Hospital Authority in the year preceding the Accident. There was record of a fracture of his left hand treated back in 2014, which appears unrelated to the present injury.

C.  Medical records

C1.  O&T

15.  A attended his first outpatient follow-up at O&T on 29 December 2020, walking with crutches and mainly complaining of low back pain with subjective bilateral thigh and buttock numbness on prolonged posture.

16.  At the next follow-up on 9 March 2021, A was still walking with crutches. While still complaining of low back pain, A’s condition was improving with physiotherapy. Bilateral thigh and buttock numbness on prolonged sitting remained. He was referred to occupational therapy for work assessment.

17.  By the follow-up on 18 May 2021, A’s physiotherapy had been completed and occupational therapy for work rehabilitation was being arranged. A’s main complaint remained to be discogenic low back pain, together with bilateral thigh and buttock numbness on prolonged sitting.

18.  Similar observations were recorded at the follow-ups on 6 July 2021, 28 September 2021 and 23 November 2021. At the follow-up on 23 November 2021, it was noted that A’s occupation training was in progress.

19.  On 20 January 2022, A’s neck pain, upper limb numbness and back pain were all recorded as improved, there was no lower limb numbness or weakness. At that stage, A had completed both physiotherapy and occupational therapy under the Hospital Authority. It was recorded that A wished to have a further course of physiotherapy in the private sector before proceeding to assessment by the Board.

20.  At the follow-up on 17 March 2022, some symptomatic improvement in A’s back and neck pain was noted, with no lower limb numbness or weakness. A was referred to the Board for assessment.

21.  On 12 May 2022, A had progressed from walking with crutches to a walking stick, with both neck and back pain and upper and lower limb numbness recorded as improved. Significant progress with physiotherapy was noted.

22.  At the 7 July 2022 review, A attended alone and walked with a stick. Upper and lower limb numbness was improved. On physical examination, his neck was found to be non-tender, but there was mild lower lumbar tenderness; four-limb neurology was intact. There were no cervical myelopathic hand signs. A referral to the Board was again made.

23.  A continued to attend follow-up sessions at O&T after July 2022. According to O&T’s medical report dated 15 December 2024, in these subsequent consultations he continued to complain of residual back and neck pain. A was referred to the pain clinic for pain control, and was walking with a stick at his follow-up on 17 December 2024.

24.  In the above period, A’s prescribed medication included paracetamol, diclofenac and gabapentin. He was also given sick leave by O&T from 26 August 2020 until 10 November 2023, and from 9 to 13 April 2024.

C2.  Physiotherapy

25.  Upon referral by O&T, A received eight sessions of physiotherapy at KWH from 10 December 2020 to 22 April 2021, with a discharge assessment done on 13 May 2021. The first four sessions were each about a week apart; thereafter the sessions were more spaced out towards the end.

26.  At the initial assessment on 10 December 2020, A was recorded as walking with elbow crutches and a soft back corset, transferring independently with furniture support, albeit slow in pace. He complained of neck pain at 7-8/10 on the numeric pain rating scale (“NPRS”), which was aggravated by neck movement. Back pain was rated at 8-9/10 on the NPRS, aggravated by standing and sitting and eased only by lying. Walking tolerance with crutches was 30 minutes; sitting tolerance was 30-45 minutes in a sofa.

27.  By the third treatment session on 23 December 2020, a slight improvement in A’s neck, back and shoulder range of movement was recorded, with a plan to continue physiotherapy for mobilization and strengthening.

28.  On 19 February 2021, it was recorded that the course of A’s pain management and back stabilization was completed with static progression in range and mobility, and that discharge was planned for March 2021.

29.  At the final treatment session on 22 April 2021, A’s clinical picture appeared to be materially similar to that during the initial assessment: back pain at 8-9/10 NPRS, walking tolerance of 30 minutes with crutches and 5 minutes unaided, and sitting tolerance of 30-45 minutes in a sofa. In the discharge report dated 13 May 2021, his condition was recorded as “finish a course of pain management and back stabilization exercise. static progression upon range and mobility condition. Discharge today with home ex and advice.”

C3.  Occupational therapy

30.  A received occupational therapy under two separate referrals. The first was made on 2 September 2020 upon discharge from KWH for mallet spring management of his right little finger. The second was made on 9 March 2021 for a work assessment, hardening and rehabilitation programme in connection with A’s back and neck injury.

31.  Under the first referral, A attended on 26 November 2020 and 10 December 2020. On both occasions an extension lag of 30 degrees over the right little finger distal interphalangeal joint was recorded. He was discharged with advice to mobilize the finger at day time to prevent stiffness, and only wear the mallet splint when sleeping or off.

32.  Under the second referral, four work rehabilitation assessments were conducted on 17 June 2021, 18 August 2021, 23 September 2021 and 12 November 2021. A subjectively noted that he was not ready to return to work during these assessments. His self-reported functional tolerance assessment was essentially the same throughout: 30 minutes sitting, 30 minutes walking with double support, few minutes standing with double support, and failing to squat. A reported having fallen twice in July 2021 so he could not attend training. At his final assessment on 12 November 2021, A’s performance was recorded as poorer than at the previous assessment. His attendance throughout the programme was recorded as poor, and it was recommended that A be discharged as no more progress was being shown.

C4.  Psychiatry

33.  A first attended the Western Psychiatric Centre, Queen Mary Hospital (“QMH”) on 18 January 2022, upon referral by a General Practitioner and was treated there by Dr Law Chi Wing, consultant psychiatrist (“Dr Law”).

34.  A was diagnosed with a moderate depressive episode, with the Accident identified as the main precipitating factor and A’s resulting impairment and disability as the perpetuating factor. His symptoms included suboptimal sleep with early morning waking at around 4-5am, less optimal appetite with a weight loss of up to 15kg, decreased volition and concentration, anhedonic feelings, mood deterioration, irritability and fleeting suicidal ideas. A’s prognosis was assessed as fair, and dependent on physical recovery. He was prescribed with the anti-depressant, sertraline, with increasing dose.

35.  At his review on 22 February 2022, A reported fewer negative ideas and no actual suicidal plan or act, although volition was suboptimal and sleep, while better, was still affected by pain and tendency in ruminations. A different anti-depressant, venlafaxine, was prescribed to replace sertraline.

36.  On 29 March 2022, A’s mood remained low with crying episodes. His volition was still being suboptimal. Increase dose of venlafaxine was given.

37.  On 26 April 2022, A’s mood was affected by his recent increase in pain and his walking aids broken. There were internal voices of negative ideas. Although A enjoyed relatively better sleep, he was still suffering from mild negative ideas as seeing aimless with whatever he did.

38.  On 9 August 2022, A experienced relative increase in financial pressure and increase in fleeting suicidal ideas with no definite plan or act. His mood was still low and mild negative ideas were still present. The psychiatrist’s impression was that there was “[f]air remission with residual s/s perpetuated by his residual pain s/s and asso social and legal issues”.

39.  In October 2022, as part of a trial of augmentation strategy, A was prescribed with an atypical antipsychotic, quetiapine, on top of venlafaxine which he had been taking.

40.  By 7 February 2023, A reported that he was only able to sleep for around 3 hours with medication. He woke up more easily from pain and took time to sleep again. His appetite was suboptimal and was only eating one meal a day. According to A, he still suffered from fleeting suicidal ideas but had no definite plan or act as he was still concerned about his daughter.

41.  By April 2023, A was reported to be less irritable. Medication was adjusted with venlafaxine being switched to duloxetine which was better tolerated.

42.  By September 2023, A felt frustrated due to the present litigation, which was perceived as “cheating” by his company. He was frustrated about the company’s way in handling the case as a form of “bullying” to him.

43.  In October 2023, a notable episode was recorded in which A wrote a will for his family members during a period of particularly low mood, accompanied by a fleeting suicidal impulse, though no actual plan or act was associated.

44.  By January 2024, A’s psychiatric condition remained largely similar. In March 2024, there was a relative increase in fleeting suicidal idea and he was suffering from stress in facing coming court hearing. He was given lorazepam to be taken when required to manage anxiety with court attendance.

45.  By August 2024, A had relocated to living alone at a friend’s home in Yuen Long to minimize irritability with his family, visiting them about once a week. A safety bell had also been installed at his home.

46.  At his review on 15 October 2024, A’s mood was still generally depressed, appetite and motivation remained suboptimal, and his residual symptoms continued to affect his confidence in resuming employment, though sleep had improved and he was less prone to irritability. His prescribed psychiatric medication at that stage included duloxetine, mirtazapine, quetiapine and lorazepam.

47.  A was granted sick leave throughout the above period while receiving psychiatric treatment.

D.  The Board’s Assessment

48.  In the Form 7 dated 15 November 2023, the Board certified that A had suffered from “multiple injuries resulting in right little finger deformity and weakness, neck pain and stiffness, back pain, weakness, right leg pain and left leg pain and psychiatric impairment”. The period of absence certified to be necessary as a result of the injury was 3 years (ie, 26 August 2020 to 25 August 2023). LOEC attributable to the injury was assessed at 10.2%.

49.  Upon review, in the Form 9 dated 27 March 2024, the Board maintained its assessment made under Form 7.

50.  On 8 July 2024, the Labour Department provided a percentage breakdown of A’s LOEC based on specialties, allocating 5.2% of the assessed LOEC to orthopaedics & traumatology and 5% to psychiatry.

E.  Surveillance

51.  In support of its appeal, R has adduced investigation reports issued by three private investigators setting out the results of their covert surveillance of A before and during these proceedings, to ascertain his daily activities, physical mobility and employment status. The video footage taken during surveillance were also adduced as evidence. There is no dispute that the subject depicted on the video footage was A himself.

E1.  Black & White Investigation

52.  Between 13 January and 9 March 2021, surveillance was attempted by Black & White Investigation on six occasions between 13 January and 9 March 2021. A was not observed leaving home at Ying Piu Mansion on Breezy Path, Mid-Levels on four of those days.

53.  On 9 February 2021, A was observed attending the Q9 Orthopaedic and Spine Centre in Central and stayed there for just under two hours. A then boarded a taxi and left.

54.  On 9 March 2021, A was observed attending the Tsui Tsin Tong Outpatient Building at KWH for a medical appointment bringing two crutches. After the medical appointment he was seen walking along Dundas Street, visited the post office, and returned to the KWH pharmacy to collect his medication before taking a taxi home. The report’s summary records that A was observed walking at a normal pace without full assistance of the crutches. Based on what I have seen on the relevant video footage, this was a fair observation.

E2.  T&H Investigation

55.  Between 6 July and 12 October 2021, T&H Investigation attempted surveillance on twelve occasions. A was not observed leaving home on ten of those days.

56.  On 6 July 2021, A was observed leaving home and walking along Park Road and took the MTR from the Sai Ying Pun station to the Yau Ma Tei station. He then walked to the Tsui Tsin Tong Outpatient Building at KWH and stayed for about 3.5 hours. He then attended the West Kowloon Smart Identity Card Replacement Centre at Gala Place on Dundas Street, and thereafter dined at a noodle restaurant on Nathan Road before taking the MTR in Central and got on a taxi there.

57.  On 28 September 2021, A attended the Tsui Tsin Tong Outpatient Building at KWH, again travelling by MTR. After his appointment he visited the West Kowloon Smart Identity Card Replacement Centre at Gala Place and then dined at a restaurant on Nathan Road before returning home by MTR.

58.  The two key findings made in T&H’s investigation report are that:- (i) A seldom went outside; and (ii) on both days of observation A used two crutches to assist walking but walked “somewhat fast”; and that on 6 July 2021 he was also wearing a waist belt. Based on what I have seen on the relevant video footage, T&H’s observation that A walked “somewhat fast” is a fair and reasonable description.

59.  As I see it, the video footage shows that A was able to walk uphill and downhill, including on stairs, without visible sign of difficulty. He was able to make swift half-body / full-turns while walking, tilting his body at times. A notable episode was that, at about 10:46am on 28 September 2021, A was trying to overtake a female pedestrian blocking his way on the pavement, and his approach caused her to take evasive action and step on one side of the pavement.

E3.  Pledge Investigation

60.  Between 10 January 2023 and 16 March 2023, Pledge Investigation attempted surveillance on seven occasions.

61.  On 28 February 2023, a pretext enquiry of the security guard at Ying Piu Mansion indicated that A had moved to the Tuen Mun District.

62.  On 16 March 2023, the only occasion A was observed by Pledge Investigation, he was seen at KWH awaiting medical consultation, holding a single elbow crutch with his right hand. After the appointment, he walked along Dundas Street and made a purchase from a vending machine, squatting and bending his back in the course of doing so. He then went back to KWH to collect medicines and then returned to Tuen Mun by MTR.

63.  In its report, Pledge Investigation noted that A was seen, among other things, (i) holding the crutch with his right hand but lifting it up sometimes; (ii) lowering his head; (iii) tilting his body; (iv) bending his upper body; (v) turning around; (vi) leaning forward; and (vii) turning back and looking around. This is indeed verified by video footage which I have seen. My impression was that A was mobile and had no visible signs of difficulty when walking around.

F.  A’s oral evidence

64.  A has adduced a witness statement and gave evidence at the trial. A large part of his statement was devoted to matters going to liability. This is understandable, as R only admitted liability very close to the trial.

65.  A gave evidence that, prior to the Accident, he was in excellent health with no relevant pre-existing conditions, and the Accident was his first work-related injury. This was not challenged in cross-examination.

66.  A confirmed how the Accident occurred, the immediate aftermath and the injuries he suffered. He described how, after the fall, he landed on his buttocks with his right hand braced against the floor, and struck the back of his head, neck and lower back against a cabinet behind him. He emphasized the severe pain and dizziness experienced on the day. This account was not challenged in cross-examination.

67.  As to his ongoing condition, A’s witness statement stated that he could not sit for more than about an hour without pain, and could not stand or walk for more than an hour without needing to sit or lie down. In cross-examination, A confirmed that his main ongoing physical complaint remained his back. He said his back pain sometimes woke him up at night, and clarified that his injury was specifically to his lumbar spine, and that his leg was not injured. He said that, as his back remained weak, he could no longer engage in his favourite pastimes, such as swimming and playing football.

68.  On his use of crutches or walking stick, A stated that this has been mainly precautionary throughout the three-year period covered by the surveillance footage. He explained that since his back became weak following the Accident, he has used crutches or walking stick when going out as a precaution — to brace himself so that he is not knocked to the ground if bumped into by another person. He accepted, however, that in an open, controlled setting with no risk of being bumped, he would be able to walk normally without them.

69.  A also frankly accepted that his condition has improved over the period. His condition at trial was somewhat better than it was in October 2024, which he attributed to pain-clinic injections providing stronger pain relief. His neck symptoms have substantially improved, with his neck movement appearing normal in the surveillance footage, though he maintained this reflected a milder “stiffness” rather than a genuine restriction of movement. As a further example of improvement, A said that at the time of the Accident he could not even lift a pot of water, but was, at the time of the trial, able to lift a single-person sized rice cooker containing rice and water.

70.  Apart from physical injuries, A’s witness statement stated that he suffered from a psychiatric condition as a result of the Accident. In cross-examination, he stated that after watching the surveillance footage played at trial, he was now wondering whether he ought to have seen a psychiatrist earlier, having counted around 20 instances of repetitive head-turning behaviour in a segment of 2021 footage which he believes, in hindsight, indicated a psychiatric problem at that time.

71.  This evidence was challenged in two further respects. First, A accepted that the repetitive head-turning behaviour visible on the surveillance footage, which he attributed at trial to his psychiatric symptoms, had never actually been reported to his psychiatrist. He maintained he did not consider that behaviour significant enough to mention at the time.

72.  Second, A was challenged that his description of his back pain as “lightning-like” did not appear in his medical records before October 2024. A maintained he always reported pain to his doctors when asked, and explained he was confident he had used such descriptors specifically with his pain clinic doctors, whom he only began seeing in 2025, because that clinic used a standardized chart of pain descriptors (needle, fire, electric shock) on a numbered scale which he simply selected — as distinct from other doctors, where he could not recall the specific terms used.

73.  A further explained how he had quantified his claim, which in his witness statement comprised the pay he ought to receive for the 3 years’ sick leave, the LOEC of 10.2% as assessed by the Board under his Form 7 and Form 9, as well as various items of expenditure.

74.  In cross-examination, A’s expenses claim was narrowed: he confirmed his claimed medical expenses total approximately HKD 1,500, and he withdrew his claim for supplements or tonic food (previously claimed at approximately HKD 90,000 over 3 years), accepting this head was not recoverable under the Ordinance.

75.  A also gave evidence on his prospects of returning to work, describing a functional benchmark set by his pain specialist of reaching 70–80% recovery, and his own personal test for readiness to return to work as being able to withstand being bumped by an average-sized person without falling, which he stated he had not yet reached.

G.  Applicable legal principles

76.  Section 18(3) of the Ordinance provides that:-

“On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit.”

77.  In Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 at 118C-E, Hunter JA held, inter alia, that because the boards hear no evidence, keep no record and give no reasons, “a court approaching this matter has really got to start afresh”. This is despite that, under section 16H of the Ordinance, a certificate issued by the Board is admissible as evidence without further proof and shall be evidence of the matters stated therein.

78.  This approach was affirmed in Tsang Kwong Tong v Tennille Decoration & Design Ltd & Ors (unreported; CACV 42/2006; 10 October 2006), where it was held that the Court should judge the assessment by testing the validity of the Board’s conclusions against the total available evidence.

79.  In Tang Shau Tsan v Wealthy Construction Co Ltd (unreported; CACV 58/2000; 5 April 2000), it was held that, while medical opinion is useful, it is for the Court to assess the percentage of loss of earning capacity.

80.  On the other hand, section 10(2) of the Ordinance provides a certified period of absence to be a period of total temporary incapacity. This is a rebuttable presumption which the employer has the burden of displacing: see Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120 at §28.

81.  Where only one party in an appeal such as the present adduces expert evidence, the Courts have held that a more vigorous assessment should be adopted in considering the expert evidence: see Ip Pang Sheung v Wong Tsai Transportation Ltd (unreported; DCEC 2170/2015; 8 August 2018) at §107.

82.  Relying on sections 47, 49 and 58 of the Evidence Ordinance (Cap 8), A submitted that a certificate issued by the Board and his own evidence shall enjoy the same status as medical reports. While hearsay evidence is generally admissible in civil proceedings:-

(1)  It has been held that, although treating doctors’ clinical records are admissible to prove injury, diagnosis and treatment, but any opinion beyond that, if not objectively assessed, is inadmissible absent leave of the Court: see 張嘉雯 v The Football Association of Hong Kong, China Ltd [2025] HKDC 1556 at §§18-19.

(2)  Furthermore, in Susan-Yunita-Ningtias v Wong Chung Kwan & Anr [2024] HKDC 913 at §24, it was held:-

“[…] the Court should be aware of the subjective complaints and information provided by a patient as documented in documents such as medical records and expert reports being a kind of hearsay evidence not given under oath or tested under cross-examination; that it is not the duty of a treating doctor to cross-examine his patient or challenge the medical history, symptoms and signs proffered by his clients; that psychiatric symptoms are largely subjective without objective yardstick to measure; and that ultimately it is for the Court to decide on the basis of the overall evidence adduced and circumstances proved during the trial. (See: Ko Wai Fan v Tung Wah Group of Hospitals [2022] 6 HKC 436 at §§48, 58; Singh Bal Winder v IWS Waste Management Co Ltd [2018] HKCFI 1107 at §§25-27, 35-39; Ale Thak Prasad v Tsang Chin Keung & Anor (HCPI 579/2012, unrep., 29.12.2017) at §§32, 34, 38; Gurung Kamala v Hong Wei Limited (DCPI 1660/2010, unrep., 26.3.2012) at §§78-80; Yip Koon Man v Yuen Long Merchants Association Secondary School (DCEC 602/2008, unrep., 30.6.2009) at §§46-48).”

83.  As to assessment of credibility of factual witnesses, as DHCJ Eugene Fung SC (as he then was) held in the oft-cited case of Hui Cheung Fai v Daiwa Development Ltd (unreported; HCA 1734/2009; 8 April 2014) at §§77-80:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

H.  The Court’s assessment

84.  Two principal issues remain following R’s admission of liability and its partial withdrawal of the first ground of appeal: (i) the proper period of sick leave; and (ii) the percentage of LOEC, considered separately for A’s orthopaedic and psychiatric conditions.

85.  Applying the start-afresh approach and the burden of proof set out in Section G above, I shall test the Board’s assessment against the totality of the evidence now before me.

86.  R has instructed two experts: (i) Dr Wong Lok Yan, Ian (“Dr Wong”), an orthopaedic surgeon, who examined A on two occasions and produced two reports dated 22 October 2021 and 5 February 2025 addressing A’s neck, back, right shoulder and right little finger injuries; and (ii) Dr Hung Bing Kei, Gabriel (“Dr Hung”), a psychiatrist, who examined A on 21 October 2024 and produced a report dated 12 February 2025 addressing A’s depressive condition. A has not instructed any expert of his own. Their evidence is considered in detail in Sections H3 and H4 below.

87.  Since only R has adduced expert evidence, I approach Dr Wong’s and Dr Hung’s opinions with the more vigorous assessment referred to in Section G above. I will scrutinize their methodology and conclusions more critically than I would in cases where there were competing expert evidence. In particular, I will test their opinions against the contemporaneous treatment records, the surveillance evidence and A’s oral evidence.

H1.  A’s credibility

88.  I start with A’s credibility as a factual witness. As summarized in Section F above, his oral evidence is relevant to the assessment of compensation for both his orthopaedic and psychiatric impairment caused by the Accident.

89.  Having heard A’s oral evidence at trial, I do not think he has set out to deceive the Court with respect to his conditions. Under cross-examination, A answered questions directly. He also made a number of concessions – for example, that his orthopaedic condition has improved over time, that his neck movement now looks normal, and that he has progressed from crutches to a stick and now uses aids only as a precaution. A witness who sets out to mislead would not usually make concessions like these.

90.  But an honest witness is not necessarily a reliable one. In my view, A has a tendency to slightly exaggerate or embellish, rather than to lie. He told the Court that he had not read his own medical records before the trial. This suggests that he was mainly relying on memory when describing his symptoms. It goes without saying that mental recollections of this kind – especially in relation to subjective feelings years back – is inherently less reliable than what a doctor has record in a contemporaneous note.

91.  R also pointed to specific examples where A’s oral evidence did not match the contemporaneous records, such as his differing accounts of what he used for support at home, and his claim that his odd movement in frequent turning on the surveillance footage were due to a psychiatric condition, even though he admitted never mentioning this to his treating psychiatrist at the time.

92.  A rather notable example, in my view, is A’s evidence that he tested his own recovery by having his teenage daughter and his wife to deliberately bump into him at home to see if he could keep his balance and stability. This does not appear anywhere in his medical records or reports, and only came out during his cross-examination for the first time. I find this account given belatedly in the witness box to be somewhat far-fetched.

93.  On the point about “lightning pain”, A told Dr Hung – when examined on 21 October 2024 – that his back pain was “lightning-like in nature”. As R submitted, this was the first time this term appears in A’s medical records. When this was put to A in cross-examination, he did not accept that October 2024 was the first time he had used the term, saying he could not remember which doctor he has told and that it would depend on whether he was asked. He also said he was confident he had used the term at the pain clinic, because the pain clinic gave him a chart showing degree of pains with different descriptions (needle, fire, lighting) and he simply picked from it.

94.  The difficulty is that A had not yet attended the pain clinic when he first used the term with Dr Hung. As A confirmed in evidence, he first attended the pain clinic in 2025. This was the year after A saw Dr Hung in October 2024. The pain clinic chart therefore cannot be where A got the term from when he used the term to Dr Hung in October 2024.

95.  That being said, I do not think A was making the symptom up. It is more likely that A was confused about when and to which doctor he had first used the term – particularly when he effectively admitted that he relied on his memory when testifying, since he had not read his medical records before trial. This is a further example of A being unreliable rather than dishonest.

96.  Accordingly, for the above reasons, I think it is appropriate to attribute more weight to the contemporaneous medical records than to A’s less reliable self-description of his complaints at trial, wherever the two differ.

H2.  Orthopaedic sick leave and LOEC

H2.1  Dr Wong’s opinion

97.  Starting with A’s orthopaedic assessment, R relies on Dr Wong, who examined A for the first time on 4 June 2021 (around 9-10 months after the Accident) and on 25 October 2024. Since A has adduced no orthopaedic expert report of his own, I approach Dr Wong’s opinion with the more vigorous assessment as described above.

98.  In his 2021 report, Dr Wong opined that A likely sustained a soft tissue contusion or sprain to the neck, right shoulder and back with soft tissue involvement with no bony fracture, together with a right little finger injury with mallet deformity. This is consistent with the findings made by KWH, including X-ray and MRI results showing no acute fracture and no cord or cauda equina compression. He considered that an injury of this kind should have full resolution of symptoms within 8 to 12 weeks, and that A’s complaints some 10 months after the Accident could not be supported by the objective evidence, even taking into account A’s pre-existing degenerative changes.

99.  In his Closing Submissions A submitted that his spinal tenderness, his torn finger ligament, and his 7-day hospitalization and the slamming force as he fell to the floor all show that the Accident was not trivial, and emphasized that he had no pre-existing injury or psychiatric history and every financial incentive, on his HKD 69,700.00 monthly salary, to return to work rather than malinger. I am prepared to accept these submissions as reasonable. But in my view, the key is whether an injury, which Dr Wong considered should resolve within weeks, can explain his continuing complaints years later.

100.  In Dr Wong’s 2021 report, he stated “[i]t is possible to suggest that there is highly likely a non-organic element in [A’s] subjective complaints of pain, weakness and numbness, etc.” His conclusion in this regard was drawn based on the five positives A scored under the Waddell’s simulation tests, and the fact that A walked slowly with two crutches inside the clinic but at a normal pace with the crutches merely as standby once outside the clinic. In the same report, Dr Wong also observed that A wore his soft neck collar with opening at the front, which should be at the back if worn properly. In his 2025 report, Dr Wong remained of the same opinion. In Dr Wong’s own words, “[i]n short, the severity of his current complaint is out of proportion to what was expected from all the available objective evidence. Symptom exaggeration, intentional or unintentional, could not be ruled out.”

101.  Dr Wong’s opinion appears to be in line with the surveillance evidence summarized in Section E above. As he explained in his 2025 report:-

“63. On days of surveillance in 2021, [A] was seen walking with 2 elbow crutches with normal gait, with the crutch touching ground every 3-4 steps. No limping or reduced cadence was observed. During the surveillance on 16/3/2023, [A] was seen walking with 1 elbow crutch, and he was seen walking with crutch not touching ground at all on multiple separate periods of times, indicating that the need for crutch is very much doubtful. He demonstrated normal trunk and neck motion as he repeatedly checking the ground by turning and flexing his neck and trunk. He bent forward to retrieve food from vender machine in normal manner and pattern. He turned backward swiftly to reach a pedestrian at his back for direction. All of these proved objectively that his neck and back function has at least reasonably restored as early as 2021. The range of motion of his neck and back during the surveillance was much better than what he demonstrated on the day of assessment.

64. During the surveillance, he used his right hand to hold and use chopsticks in normal manner. He was also seen holding one elbow crutch in his right hand. Despite the residual mallet deformity of his right little finger, his right hand function obviously has been well restored as early as 2021.

65. There is apparent mismatch of his behavior on days of surveillance and day of examination.”

102.  In his Closing Submissions, A explained the surveillance evidence mainly by reference to (i) his pain medication; (ii) that it was his back, not his legs, which were injured and the back pain was intermittent; (iii) that he used crutches as a precautionary measure; (iv) he was 1.78 metre tall and possessed 50-inch legs and would appear fast when walking; and (v) that he was not handicapped, but only could not run, swim and play football. On the whole, I do not think this answers the consistent pattern Dr Wong identifies from the surveillance footage as described above and which I have seen myself. Bearing in mind, as I noted in Section H1 above, that A’s own account is not entirely reliable and that I should prefer contemporaneous records, I accept that A’s presentation to Dr Wong did not match either the O&T follow-up records or his behaviour when unobserved during his surveillance.

103.  A further referred to the fact that, across the 3 years of surveillance, he was never captured doing ordinary activities such as going swimming, going on holiday, do other jobs, or going to market for food shopping. Instead, A emphasized, every time he was captured by surveillance he was going out to attend medical appointments at the hospital. I do not think this assists A. In my view it is the way in which A was captured on video that was more important and material to his true state of condition, than what he was not captured doing.

104.  A also submitted that Dr Wong’s two reports are inconsistent, since his LOEC assessment changed from 2% to 4%, and his recommended sick leave was extended from December 2020 to April 2021. There is nothing in this point. As I see it, the change of sick leave reflects Dr Wong’s having been provided with physiotherapy records showing A’s treatment continuing to 22 April 2021. The change in LOEC is discussed below and does not reflect any change in his clinical findings, which were materially consistent across both examinations.

105.  A further argued that Dr Wong’s report is biased in attributing his condition partly to natural degeneration without giving equal weight to accident-related causes. I do not accept this. Dr Wong’s evidence, that the reduced disc space and with osteophytes together with mild scoliosis at lumbar spine, are typical wear-and-tear features not uncommon at A’s age and occupation and capable of causing pain without any injury, is a matter of clinical experience and opinion on which A, having adduced no expert evidence of his own, is unable to rebut beyond speculation. There is no objective basis for the Court to prefer that speculation over Dr Wong’s reasoned opinion. A has not challenged Dr Wong’s medical expertise.

H2.2  Sick leave and LOEC

106.  On sick leave, as mentioned above, section 10(2) of the Ordinance creates a rebuttable presumption that the certified period of absence is total temporary incapacity, and the burden is on R to displace it. In Dr Wong’s opinion, orthopaedically and in view of A’s occupation, A’s sick leave period should be up to 22 April 2021, when he was discharged from physiotherapy.

107.  I have vigorously considered Dr Wong’s opinion by reference to A’s physiotherapy records. According to A’s physiotherapy discharge summary dated 13 May 2021, A’s self-reported pain was unchanged at 8/10 from December 2020 to May 2021. However, the physiotherapist’s own assessment was one of “static progression” and discharge from physiotherapy was justified. This suggests to me that, at the time of discharge, A was not responding to further physiotherapy and had reached the limit of what that treatment could achieve. Further, and more importantly, the surveillance footage from February and March 2021, summarized above, was taken within this same treatment period and shows a materially better picture than what these physiotherapy findings would suggest. This supports Dr Wong’s opinion that A’s presentation to his physiotherapists did not fully reflect his true condition. If A suffered from any residual problem as of 22 April 2021, this is to be reflected in the LOEC assessment below and not by further extending sick leave.

108.  I have also considered A’s occupational therapy assessments from June to November 2021, which A relies on as showing he was repeatedly “not ready to return to work”. That conclusion, however, is recorded under the section “Subjective Review on Return to Work Readiness”. In other words, those were A’s own self-assessments. Furthermore, these reports appear to record possible mismatch between A’s performance and the objective findings, including an occasion where he managed only 20 degrees of hip flexion on formal testing yet sat with his hip flexed to 90 degrees without difficulty.

109.  Overall, and for the above reasons, I prefer Dr Wong’s opinion to the Board’s Form 7 and Form 9 assessments. I am satisfied that R has discharged its burden of displacing the section 10(2) presumption and find that A’s orthopaedic sick leave should run to 22 April 2021 only.

110.  As to LOEC, in his 2025 report, Dr Wong assessed A’s whole person impairment at 2% for the neck condition and 2% for the back condition (with the right little finger deformity separately assessed at a digit impairment equivalent to 0% WPI), using the relevant tables from the AMA Guides to the Evaluation of Permanent Impairment as reference. Dr Wong then opined that A’s neck and back condition was attributed to the Accident as well as pre-existing condition of degeneration, “with 50% of his current neck and back condition is attributed to the alleged accident and 50% to his pre-existing conditions”, arriving at a final assessment of 2%.

111.  As R fairly accepted, that deduction to account for degeneration cannot stand in light of the Court of Final Appeal’s decision in LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103 at §48, where Ribeiro PJ held that “there is no basis for requiring apportionment to reflect the existence of a pre-existing disease as a concurrent cause of the employee’s incapacity.”

112.  After taking away that impermissible deduction, R submitted that the appropriate LOEC is 4%, being Dr Wong’s own combined 2% and 2% assessment for the neck and back before that deduction was applied.

113.  According to his 2025 report, Dr Wong’s 2% assessment for the neck and 2% assessment for the back were each independently derived by him from the AMA tables, applied to objective findings on his own examination – including the reduced range of motion and X-ray changes he personally observed – rather than from A’s subjectively reported symptoms which I have found in Section H1 to be unreliable. The only part of Dr Wong’s reasoning which I do not accept  is the subsequent 50% deduction for pre-existing degeneration, which is impermissible as a matter of law.

114.  On the other hand, I do not accept A’s submission that the Board’s 5.2% figure should be preferred, on the basis that three independent batches of government doctors reached a consistent figure. Whilst the Board’s certificate is admissible, on the authority of Chan Kit (supra), its assessment cannot be tested since the Board hears no evidence and gives no reasons. Dr Wong’s opinion, when tested against the contemporaneous records and surveillance evidence, is in my view more reliable.

115.  I therefore assess A’s orthopaedic LOEC at 4%.

H3.  Psychiatric sick leave and LOEC

H3.1  Dr Hung’s opinion

116.  Turning to A’s psychiatric assessment, R engaged Dr Hung, a psychiatrist who examined A on 21 October 2024 and produced a report dated 12 February 2025. Since A has not adduced any psychiatric expert report of his own, I likewise apply the more vigorous assessment mentioned above.

117.  In this report, Dr Hung diagnosed A to have suffered from a “Major Depressive Disorder, Single Episode, Moderate (DSM-5 Code 296.22)” after the Accident. He considered A to have suffered from “moderate intensity of symptoms based on the level of severity of his symptoms and the impact of his functioning.” In Dr Hung’s opinion, this is essentially the same diagnosis made by Dr Law, although Dr Law used the term “Moderate Depressive Episode”, which is the wording used in the ICD-10 diagnostic classification.

118.  As Dr Hung considered that A’s condition had improved following psychiatric treatment, he opined that the severity of A’s depressive disorder had become “Major Depressive Disorder, Single Episode, Mild (DSM-5 Code 296.21)” at the time of the examination. In Dr Hung’s view, “[A] [was] currently independent in all aspects of his daily functioning and [was] able to handle matters in relation to the current litigation. There [was] insufficient impairment at present for a diagnosis of “moderate” level of severity and a “mild” level of severity [was] more appropriate.”

119.  As to causation, Dr Hung first relied on Dr Wong’s opinion that a simple soft tissue injury should resolve within 8 to 12 weeks, and hence excluded persistent physical injury as the cause of a depression that only needed treatment 9 to 12 months later. Dr Hung then noted in his report “[i]n the examination, [A] described that the other reasons for his psychiatric illness were his feeling of being unfairly treated by his employer after the Accident and financial difficulties as he salary was stopped. It was clear that he felt aggrieved and had grudges against his employer, which was demonstrated many times in the examination. These appear to be the reasons for the development of his psychiatric illness, and can also explain why he continues to suffer from psychiatric symptoms at present as the litigation is ongoing and he continues to have financial difficulties. These reasons for the development of his psychiatric illness are considered to be related to the Accident as they would not have happened if the Accident did not occur.”

120.  Dr Hung opined that sick leave from the date of A’s first psychiatric appointment (18 January 2022) to 9 August 2022 was appropriate – since by the latter date A was noted to have “fair remission” and in the subsequent appointment on 11 October 2022 he was noted to have “partial remission”. As Dr Hung explained, “[t]herefore, by 9 August 2022, [A] should have been able to resume work from a psychiatric point of view, with mild impairment in functioning caused by his psychiatric symptoms. There should not have been a need for further continuous sick leave after 9 August 2022.”

121.  After considering A’s subjective view, his own observations in the examination and various professional guidelines, Dr Hung assessed A’s “current” LOEC from his psychiatric condition to be at most 1-2%. He further assessed A’s “permanent” LOEC to be 0% - in his opinion A would continue to improve with treatment and his condition would resolve by 12 months after the resolution of the present litigation.

122.  R took issue with Dr Hung’s opinion on causation, essentially on the basis that (i) A’s medical records do not reveal complaints of being unfairly treated or any grudge against R from January to March 2022; (ii) medical records show that A only mentioned loss of faith in R on 9 August 2022; and (iii) it was only on 5 September 2023 that it was recorded A “felt frustrated related to current litigation issue for IOD, perceived being viewed as “cheating” compensation from his company. Frustrated about their way in handling as form of “bullying” to him”. Accordingly, R submitted, since A’s condition was described as being in “fair remission with residual s/s perpetuated by his residual pain s/s and asso social and legal issues”, from the time perspective it was impossible that the sole factor causing the psychiatric illness which needed treatment in January 2022 (when A first consulted a psychiatrist) would appear only in September 2023 (when he first mentioned allegations about “cheating” and “bullying” as aforesaid).

123.  In my view, R’s approach is selectively focused on semantics at a certain point in time and ignored the overall picture throughout. The proper approach, as I see it, is to review the entirety of the relevant medical evidence and to ask whether A’s undisputed psychiatric condition was caused by the Accident, on the balance of probabilities.

124.  At A’s first psychiatric consultation at QMH on 18 January 2022, Dr Law recorded the following observations:-

(1)  “Sleep being suboptimal in general since after the injury due to pain initially. Subsequently also contributed by his mood and anxiety s/s with ruminations about various worrying thoughts, with intermittent wakening and EMW at around 4 to 5am. Slept on & off in daytime with subsequent disrupted sleep cycle”;

(2)  “Being on no-pay leave in recent months with increased financial tension of the family”;

(3)  “Worried about losing his job and could not longer work in the long run”.

125.  In Dr Law’s medical note of 9 August 2022, he recorded his impression that A was in “[f]air remission with residual s/s perpetuated by his residual pain s/s and asso social and legal issues.” It should be noted that this review was made shortly after A’s present application was taken out on 27 July 2022.

126.  Further, in his medical report dated 14 October 2024, Dr Law stated “[A] was diagnosed to be suffering from a moderate depressive episode, with the [Accident] being the main precipitating factor of his condition.”

127.  Even after taking into account the subjectivity of some of A’s reported complaints symptoms, these appear to be genuine and medically documented consequences of the Accident and its aftermath.

128.  I also accept that the litigation itself, and the manner in which R conducted it, has contributed to A’s condition. In particular:-

(1)  In its Answer filed on 1 February 2023, R denied that any accident occurred, and essentially contended that A fabricated the occurrence of the Accident, including “[taping] a piece of paper to the ceiling behind the CCTV, which would ensure that the camera could not capture the view of the part of the filing room nearest the door and beside the Human Resources cabinets”. Furthermore, R positively pleaded that “[A] has not sustained any accident as such.”

(2)  R maintained the same position in its Amended Answer filed on 7 November 2023, its Re-Amended Answer filed on 23 April 2024 and its Re-Re-Amended Answer filed on 22 May 2025.

(3)  It was only on 27 August 2025, less than a month before the first day of the trial, that R admitted liability to pay employee compensation.

129.  Accordingly, A’s feelings of being “bullied” and “unfairly treated”, which was first recorded in September 2023, are unsurprising against this background, and I do not consider it fatal to causation that this particular language does not appear in the medical notes until then. This is indeed supported by Dr Hung’s opinion. In my view, a litigant accused, in successive pleadings over years, of fabricating an accident and his own injury can hardly be faulted for feeling aggrieved by that experience.

130.  Looking at the evidence as a whole, I find that A’s psychiatric condition was caused by the Accident, through a combination and the cumulative effect of his pain, his financial hardship, his worry of losing his livelihood and the manner in which this litigation was conducted by R.

131.  A attempted to undermine the weight of Dr Hung’s opinion by arguing that Dr Hung only carried out a 2-hour examination on him and relied mainly on Dr Law’s and Dr Wong’s reports, whereas Dr Law assessed him over a much longer period as his treating psychiatrist. A submitted that Dr Hung’s report lacked objectivity and sufficient analysis and is thus unreliable. I accept that Dr Law’s opinion does carry some weight and that psychiatric conditions are harder to verify than physical ones. But given that Dr Hung arrived at the same diagnosis of A’s psychiatric condition as Dr Law, there is little reason why Dr Hung would not be in a position, in his role as expert witness, to opine on A’s psychiatric impairment, question of causation and appropriate sick leave and LOEC suffered. There is no dispute over Dr Hung’s expertise in psychiatry. And as demonstrated above, the Court in carrying out its own assessment would have regard to the entirety of the medical evidence and subject solo expert opinions (such as Dr Hung’s) to vigorous scrutiny. Accordingly, while A’s argument is understandable, I see no reason to exclude Dr Hung’s opinion as part of the overall assessment.

H3.2  Sick leave and LOEC

132.  On sick leave, the same section 10(2) presumption and burden discussed in Section H2 above are applicable. In Dr Hung’s opinion, sick leave should run from A’s first consultation on 18 January 2022 to 9 August 2022, when Dr Law considered A to be in “fair remission”. I accept that this is a reasonable conclusion to draw based on the contemporaneous medical records. Accordingly, R has discharged its burden of displacing the presumption for the period after 9 August 2022.

133.  As to LOEC, Dr Hung assessed A’s “current” psychiatric LOEC to be at most 1-2%, and opined that full or near-full remission (LOEC 0%) can be expected 12 months after the litigation resolves. As R submitted, and I agree, the Court must assess A’s condition as it currently stands. Having had regard to A’s condition by reference to all the evidence, I find it appropriate to adopt Dr Hung’s upper-end figure and find A’s LOEC to be 2%. I do not accept A’s submission that the Board’s 5% figure should be preferred, essentially for the same reasons given in Section H2 above. Relative to the Board’s assessments (which are unreasoned and untested), I find Dr Hung’s opinion, when tested against the contemporaneous records, more reliable.

H4.  Summary

134.  For the above reasons, I find that:-

(1)  A’s orthopaedic sick leave should run from 26 August 2020 to 22 April 2021, both days inclusive (ie, 7 months 28 days); and his psychiatric sick leave should run from 18 January to 9 August 2022, both days inclusive (ie, 6 months 23 days). This gives a combined total sick leave period of 14 months 21 days;

(2)  A’s orthopaedic LOEC is 4% and his psychiatric LOEC is 2%. This gives a combined total LOEC of 6%.

I.  Assessment of compensation

135.  For the compensation under section 9 of the Ordinance, there is no dispute that it is to be calculated using this formula: HKD 30,530 x 72 x the total LOEC percentage. Applying the total assessed LOEC of 6% to the said formula, A is thus entitled to compensation in the amount of HKD 131,889.60 under section 9.

136.  As to section 10 of the Ordinance, it is common ground that this formula applies: (HKD 69,700 x 4/5 x total months of sick leave) - periodical payment already made of HKD 802,944 (exclusive of medical expenses reimbursement of HKD 300). Applying total sick leave of 14 months 21 days (ie 14.7 months) to the said formula, A is therefore entitled to compensation of HKD 16,728.00 under section 10.

137.  As to medical expenses under section 10A of the Ordinance, the agreed amount is HKD 1,500 and A has received HKD 300 as reimbursement. The net amount payable under section 10A is therefore HKD 1,200.00.

J.  Conclusion

138.  For all the above reasons, I make the following order:-

(1)  The Respondent shall pay the Applicant total employees’ compensation in the amount of HKD 149,817.60;

(2)  The Respondent shall further pay the Applicant interest on the above compensation amount at half the judgment rate from 26 August 2020 to the date of this judgment, and thereafter at judgment rate until payment of the compensation amount in full;

(3)  On a nisi basis, the Respondent shall pay the Applicant’s costs of these proceedings to be taxed if not agreed. This order nisi shall be made absolute in the absence of any application to vary it within 21 days. Any such variation application shall be made by summons supported by affidavit filed within the aforementioned deadline.