YU CHUN SHING v. HUSSAIN AHMED AND ANOTHER

DCPI 286/2023

[2026] HKDC 389

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 286 OF 2023

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JUDGMENT

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1.  This is an assessment of damages is made in respect of an accident that occurred on 29 April 2020 at the airport apron area of Hong Kong International Airport, during the course of employment, when a tow truck driven by the 1^st defendant, an employee of the 2^nd defendant, collided with the plaintiff’s tow truck, causing the plaintiff to sustain multiple injuries (the “Accident”).

2.  In the related employees’ compensation proceedings of DCEC 651/2022 (the “ECC Proceedings”), the plaintiff received a sum of HK$758,734.51 in compensation.

3.  In the present case, the writ was issued against the defendants on 1 February 2023 interlocutory judgment has been entered against the defendants on 27 June 2023 which has led to this assessment of damages to be determined.

4.  At the time of the Accident, the plaintiff was 56 years old and employed by the 2^nd defendant as a Ramp Operative, responsible for driving tow trucks on the airport apron area of Hong Kong International Airport, Chek Lap Kok, Lantau.

5.  The parties were ably represented by counsel at trial, namely Mr Patrick P. Szeto for the plaintiff and Mr Daniel K.K. Chan for both defendants.

Quantum on pleadings

6.  The Revised Statement of Damages dated 18 July 2024 (the “Revised Statement of Damages”) where the plaintiff pleaded that as a consequence of the Accident and the injuries sustained, he was continuously certified unfit for work from 29 April 2020 to 2 August 2024. During this period, he contended that he was unable to engage in any form of gainful employment, save for three brief and isolated instances: (1) two days of ad hoc assistance to a self‑employed electrician in mid‑2023; (2) three days of employment as a technician tasked with operating machinery and preparing medications in November 2023; and (3) 8-days of work as a security guard in February 2024. The plaintiff further maintains that he remains incapable of resuming gainful employment thereafter and avers, in any event, he cannot reasonably be expected to earn an average monthly income exceeding HK$12,000.

7.  The various heads of damage are compared between the parties prior to trial as per the Revised Statement of Damages as against the Answer to Revised Statement of Damages dated 8 August 2024 (the “Answer to Revised Statement of Damages”) which are summarized for reference as follows:

	Heads of damage	Plaintiff	Defendants
1.	PSLA	HK$500,000.00	HK$80,000.00
2.	Pre-trial loss of earnings and MPF	HK$1,194,661.55 (with an alternative sum of HK$100,765.41)	HK$122,850.00
3.	Post-trial loss of earnings and MPF	HK$646,148.99 (with an alternative sum  of HK$469,665.00)	HK$0.00
4.	Loss of earning capacity	HK$100,000.00	HK$0.00
5.	Future medical expenses	HK$70,000.00	HK$3,000.00
6.	Special damages	HK$27,420.00	HK$3,000.00
	TOTAL:	HK$2,538,230.54	HK$208,850.00

8.  The parties were distinctly at odds with one another and the reasons for such disparate positions affecting quantum was primarily due to various factors on the factual and expert evidence to be discussed hereinbelow. Further affecting quantum was the way in which the parties have approached the issues of malingering and consideration of single joint expert reports (the “SJE Reports”) that were also disparate and distinct from one another.

Injuries and Treatment

9.  The Accident caused the plaintiff to be thrown forward with his head hitting the frame of the plaintiff’s tow truck and then bouncing back with his back hitting the driver’s seat.

10.  Immediately after the Accident, the plaintiff experienced pain in his forehead and lower back and was transported by ambulance to the Accident and Emergency Department of North Lantau Hospital for treatment. Initial examination revealed a haematoma on the left parietal scalp.

11.  After the plaintiff’s condition was stabilised, he was transferred to the Department of Orthopaedics and Traumatology for further management, during which the Department of Neurology was also consulted. Examination revealed local tenderness over the upper left pelvic region and a scalp haematoma, and thereafter the plaintiff was treated conservatively. The plaintiff was thereafter transferred to Princess Margaret Hospital for inpatient treatment, where he remained hospitalized until his discharge on 5 May 2020. Sick leave was then granted up to 26 June 2020.

12.  The plaintiff’s case is that due to the Accident, he sustained head and back injuries which led to multiple ongoing conditions, including orthopaedic, neurological, psychiatric, ophthalmological and ENT-related symptoms and disabilities. These problems have persisted despite continuous treatment as according to the plaintiff. Following his discharge from hospital, the plaintiff developed post‑concussion syndrome, accompanied by persistent headaches, dizziness, vertigo, hearing loss, and deteriorating vision. He has also suffered from sleep disturbances and depressive symptoms.

13.  Given the foregoing situation of the plaintiff, he was then provided with follow-up and/or symptomatic treatments at various institutes, notably:

(a)  MRI imaging of the lumbar spine demonstrated multilevel intervertebral disc protrusions with associated nerve root impingements, as well as minimal L3/4 retrolisthesis;

(b)  He underwent 11 sessions of physiotherapy;

(c)  He was admitted to the Neurology Department of Princess Margaret Hospital for 1-day due to complaints of headache, diplopia and hearing difficulties;

(d)  He received ENT assessment and treatment at the Ear, Nose and Throat Specialist Clinic of Queen Elizabeth Hospital;

(e)  He completed 15 sessions of occupational therapy;

(f)  He also attended ophthalmology consultations at Caritas Medical Centre;

(g)  He underwent psychiatric treatment that was provided through the Department of Psychiatry at Princess Margaret Hospital.

14.  It is notable in the Form 9 in the ECC Proceedings that the plaintiff suffered from multiple injuries, including low back pain, back stiffness, bilateral lower limb pain with muscle spasm, multiple prolapsed intervertebral discs, right‑sided tinnitus and reduced hearing, as well as residual dizziness attributable to post‑concussion syndrome. He was also noted to have bilateral severe constriction of visual fields resulting in loss of visual effectiveness. Sick leave was certified from 29 April 2020 to 2 November 2022, and again from 18 November 2022 to 28 April 2023. His loss of earning capacity was assessed at 61.5%.

15.  It will be borne in mind that even in employees’ compensation proceedings, the Court is required to approach the matter afresh. In particular, the Court must assess the correctness of the Medical Assessment Board’s conclusions by examining all the available evidence, including the medical opinion evidence, and ultimately for the Court to reach its own independent determination as per Leung Chi Wai v CT Logistics Limited [2022] HKDC 1276 at §6, citing Tsang Kwong Tong v Tennille Decoration & Design Limited & Others (CACV 42/2006, 10 October 2006).

A&E and other medical reports

16.  Notable are the following selection of medical reports that were relevant towards consideration of the plaintiff’s condition(s), treatment and findings after the Accident.

17.  The hospital report prepared by Dr Ko Shing of the Accident and Emergency Department of North Lantau Hospital dated 30 November 2022 stated that upon the plaintiff’s admission immediately following the Accident showed he complained of dizziness and low back pain. He did not experience any loss of consciousness. Clinical examination revealed a haematoma over the plaintiff’s left parietal scalp. There was no tenderness over the plaintiff’s cervical or lumbosacral spine and no neurological deficit was detected. X‑ray imaging of the lumbosacral spine demonstrated normal alignment and a CT scan of the brain was unremarkable. The provisional diagnosis of the plaintiff was that of a head injury and low back pain. The plaintiff was thereafter admitted to the Orthopaedic Unit of Princess Margaret Hospital for further management.

18.  The hospital report prepared by Dr Wong Kam Yiu of the Department of Orthopaedics and Traumatology of Princess Margaret Hospital dated 17 January 2022 stated that upon the plaintiff’s admission on the date of the accident for head and back injuries, he complained of dizziness, and the Neurosurgical Department was accordingly consulted. On physical examination, the plaintiff was alert and conscious. There was no local tenderness over the spine, though localized tenderness was noted over the upper left pelvic region. No neurological deficit was detected in either lower limb. X‑ray imaging of the lumbosacral spine, pelvis and both knees revealed no fracture.

19.  The Plaintiff remained hospitalized for 6-7 days and was discharged on 5 May 2020. The hospital’s discharge slip indicated that the plaintiff had made a good recovery at the time of discharge. At a follow‑up consultation on 9 October 2020, the plaintiff reported residual back pain and demonstrated a positive Waddell’s sign. Given the plaintiff had by then reached maximal medical improvement orthopaedically, he was referred for assessment by the Medical Assessment Board as well as for a driving assessment.

20.  The medical report prepared by Dr Leung Kin Ho of the Hong Kong Traumatology & Orthopaedics Institute dated 22 October 2022 shows that the plaintiff attended the clinic on 5 May 2020 complaining of persistent left‑sided lower back pain, headache and tinnitus. He was treated conservatively with analgesics and physiotherapy. A gradual improvement was noted whereas the final follow‑up consultation on 25 August 2020 shows that the plaintiff continued to complain of residual lower back pain. Clinical examination at that time revealed intact neurological function in both lower limbs of the plaintiff.

21.  The medical report compiled by Suen Wing Yan of the Accident and Emergency Department of United Christian Hospital dated 10 February 2022 shows that the plaintiff attended on 20 May 2020 with complaints of persistent headache and low back pain despite the use of analgesics. On examination, the plaintiff was found to have a full Glasgow Coma Score. Furthermore, the plaintiff was found to have mild tenderness that was over the left lower back and power in all four limbs was full. The plaintiff was discharged with further analgesics.

22.  The medical report compiled by Dr Li Yee Ting of the Accident and Emergency Department of Princess Margaret Hospital dated 15 June 2022 shows that the plaintiff attended on 25 May 2020 complaining of persistent headache, diplopia, and hearing difficulties following the Accident. Physical examination of the plaintiff led to observation that he was able to ambulate independently with a steady gait. Bilateral visual acuity and visual fields were found to be normal. The plaintiff was subsequently admitted to the Neurosurgery Ward for further management.

23.  The medical reports compiled by Dr Cheung Lin Kit, Harry and Dr Huang Kai Yi, Ivy that were respectively dated 27 January 2022 and 14 May 2025 of the Department of Neurosurgery of Princess Margaret Hospital shows that the plaintiff first attended on 25 May 2020 complaining of persistent headache and dizziness following the Accident, together with intermittent complaints of diplopia and hearing difficulties. On examination, the plaintiff was fully alert, with full power in all four limbs and no focal neurological deficit. A CT scan of the plaintiff’s brain revealed no intracranial haemorrhage or skull fracture and he was managed conservatively. The plaintiff was thereafter followed up for post‑concussion syndrome arising from a minor head injury and subsequent records note that his dizziness later was resolved.

24.  The medical report compiled by Dr Chan Chit Man dated 2 April 2025 of the ENT Department of Queen Elizabeth Hospital shows that the plaintiff was referred for assessment of right‑sided hearing loss following the Accident. The initial consultation took place on 21 July 2020 where the plaintiff complained of right‑sided hearing loss, right‑sided tinnitus, and dizziness. Physical examination revealed normal and intact tympanic membranes in both ears. A pure tone audiogram demonstrated severe sensorineural hearing loss on the right side.

25.  The same medical report shows that at the subsequent consultation on 16 November 2020, the plaintiff additionally complained of left‑sided hearing loss which he stated had commenced approximately two months after the Accident although no earlier documentation recorded such a complaint. Physical examination again showed normal and intact tympanic membranes bilaterally. A pure tone audiogram revealed severe sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear, the latter with fair test reliability.

26.  It was further noted that the plaintiff was able to communicate at quiet conversational levels without reliance on visual cues and could communicate effectively at normal voice levels. MRI imaging of the internal acoustic meatus revealed no significant pathology.

27.  The medical report compiled by Dr Mak Lok Yoong, Vanessa dated 25 March 2025 of the Department of Ophthalmology of Caritas Medical Centre stated that the plaintiff first attended the clinic on 23 October 2020 complaining of blurring of vision in the right eye for several months. There was no documented eye injury associated with the Accident and the plaintiff’s visual acuity, as well as the best‑corrected visual acuity on trial lens testing, was identical in both eyes with pupillary reactions were normal. Examination of the anterior and posterior segments of the plaintiff revealed no abnormality. Extraocular movements were full, and no diplopia was elicited in any direction of gaze. Optical coherence tomography of the optic nerve head and macula of the plaintiff was unremarkable. A Humphrey visual field test of the plaintiff demonstrated bilateral constricted visual fields. It was also noted that the plaintiff’s visual acuity had been variable throughout subsequent follow‑ups, and he was scheduled for further investigations, including a malingering test and electroretinography.

28.  The medical report compiled by Dr Chow Shiu Cheung dated 16 February 2022 of the Department of Psychiatry of United Christian Hospital states that the Plaintiff sought psychiatric management at the Yung Fung Shee Psychiatric Centre on 5 November 2021. The plaintiff reported the onset of psychiatric symptoms 2-months after the Accident during a period where he was idling at home. The plaintiff was noted to be suffering from anxiety and depression for which a night time antidepressant was prescribed.

29.  The physiotherapy report compiled by Mr Ho Kwok Wah and occupational therapy report compiled by Miss Florence Leung, both dated 20 January 2022 shows that the plaintiff completed his treatment in October 2020 where he had continuously received conservative symptomatic treatment only.

SJE Reports to be considered

30.  The plaintiff was examined by various single medical experts jointly appointed by the parties and for ease of reference the abbreviated terminology adopted by the plaintiff will be adopted hereinbelow:

(a)  Single joint psychiatric examination by Dr Cheung Hung Kin (“Dr Cheung”) on 5 December 2023 as per the report dated 29 January 2024 (the “SJPR”);

(b)  Single joint orthopaedic examination by Dr Ko Put Shui, Peter (“Dr Ko”) on 11 December 2023 with as per the report dated 17 February 2024 (the “SJOR”);

(c)  Single joint ophthalmological examination by Dr Benedict Liang (“Dr Liang”) on 24 April 2024 as per the report dated 4 June 2024 (the “SJOPR”);

(d)  Single joint neurological examination by Dr Edmond Woo (“Dr Woo”) on 26 April 2024 as per the report dated 6 June 2024 (the SJNR”);

(e)  Single joint ENT examination by Dr Lo Siu Sing (“Dr Lo”) on 30 April 2024 as per the report dated 30 June 2024 (the “SJENTR”).

31.  By the Order dated 14 July 2023 the reports of the public and/or private hospitals and/or clinics as to treatment and care of the plaintiff were adduced at this assessment of damages as evidence agreed as to admissibility and authenticity without calling the makers thereof. As such, there was no dispute between the parties on the treatment and care received by the plaintiff.

The parties’ respective positions

32.  Mr Szeto for the plaintiff submitted that the central issue for determination is the proper identification and evaluation of the true nature and extent of the injuries he has sustained, and continues to suffer, as a consequence of the Accident.

33.  The defendants, while accepting that the plaintiff has presented with multiple symptoms and disabilities since the Accident, contend that the plaintiff’s case, particularly in respect of the more serious symptoms alleged, must be assessed against the objective medical evidence. The defendants maintain that, on the evidence, the injuries causally attributable to the Accident are limited in scope and that the plaintiff’s principal ongoing complaints relate only to headache and back pain.

Approach to medical experts and the SJE Reports

34.  Regarding medical experts as relating to an assessment of damages, Zahid Anwar v Graceful Sound Ltd and Ors, (unreported, HCPI  410/2008 & HCPI 370/2009, 31 August 2012, Bharwaney J) at §25 held that:

“… Experts are instructed to assist the court by offering their expert opinion on areas which are within their specialist experience and which are not matters of common knowledge. The expert opinion has to be based on the objective evidence available to and ascertainable by them. The paramount duty of the expert is to the court, not to his client who has engaged him and by whom he is to be paid. There is no doctor-patient relationship between him and his client. He is not a mouthpiece for his client but must conduct a forensic examination and critically weigh the objective facts before offering his opinion to the court. In the case of the orthopaedic experts, this means that recognized non-invasive tests must be carried out to rule out exaggerated assertions and malingering.”

35.  Li Cheuk Lam v Cheung Sun Tai & Ors, (unreported, HCPI  1102/2015, 13 October 2017) where Master Leong at §30 onwards held the following:

“30. An expert on quantum conducting an examination would obtain two types of evidence: the “subjective” evidence which are the presenting complaints and medical history the plaintiff informed the expert, and the “objective” evidence obtained by physical examination and investigations like x-rays and MRI scans. (Some aspects of certain physical examinations may be considered “subjective”, e.g. findings of tenderness on palpation, finding of pain at range of movement examinations, or, to some extent, muscle weakness because it would be up to the patient to complain when certain areas were palpated or manipulated, and, in the latter example, up to the patient to exert voluntary effort when asked by the doctor. However, for some physical examinations, there may be ways for the examiners to detect whether the “subjective” complaints or voluntary efforts were genuine or not. The experts would be expected to discuss these in their report if such occasions arose.)

31. The “subjective” evidence may be treated by the court, under proper circumstances, as no more than hearsay evidence the patient has told the experts. Thus such evidence is open to the court to find otherwise at the trial as a matter of fact finding. The “objective” evidence, however, is something that the court must rely on the experts as only they would have the expertise to perform the examinations or interpret the investigation results.

32. An expert is expected to discuss both the “subjective” and “objective” evidence on an even-handed and fair manner whether such evidence supports the case of those instructing him or not (not relevant here as Dr. Kong is a single joint expert) before coming to any conclusion. In particular, the expert should address whether the “objective” evidence supports the “subjective” complaints. The court may also accept that there are limitations to various investigations so that a normal finding may not preclude the possibility of genuine symptoms or “subjective” complaints, so the experts should also discuss this and perhaps give an opinion as to the extent and likelihood of this possibility (of on-going symptoms despite normal “objective” evidence), and produce any supportive medical research literature if applicable.

33. If such discussions are presented, it would be entirely proper for an expert to base his opinion solely on the “subjective” complaint of the plaintiff without supportive “objective” evidence, but he has to qualify his opinion by stating so. The expert should be aware that it is not their role to determine the facts. Under such circumstances, the case would turn depending largely on the credibility of the plaintiff in establishing that their “subjective” complaints were truthful. It would be a finding of facts by the court so the role of the expert evidence in such a case would be somewhat limited.

34. What an expert must not do is to “play advocate” by “cherry-picking” evidence which support one side’s case and base his opinion entirely on those without any qualifications. If he does so, he is clearly only acting for the interest of that party and has failed to discharge his duty which should be to the court.”

36.  In Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663 at §154, DHCJ Raymond Leung SC stated the following in relation to the approach to be adopted in assessing expert evidence:

“In assessing the expert evidence, I would respectfully adopt the approach of Stuart-Smith LJ in Loveday v Renton [1989] 1 Med LR 117 (at 125), wherein it was explained that:

(a) The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b) The court has to evaluate the witness and the soundness of his opinion.

(c) Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d) The weight to be given to the opinion of an expert depends on :

(1) the internal consistency and logic of his evidence;

(2) the care with which he had considered the subject and presented his evidence;

(3) his precision and accuracy of thought as demonstrated by his answers;

(4) how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(5) whether or not a witness is biased or lacks independence.”

37.  I understood Mr Szeto for the plaintiff to agree with the aforementioned authorities but rather he placed emphasis on the fact that this Court should be alert to the fact that the plaintiff has sustained multiple injuries as a result of the Accident that involved orthopaedic, neurological, psychiatric, ophthalmological and ENT injuries and therefore multiple medical experts are to be noted since the injuries are cumulative.

38.  Mr Szeto for the plaintiff invited this Court to assess damages of the plaintiff on the bases of him suffering from a moderate head/brain injury causing post-concussion syndrome complicated by psychiatrically induced vision loss, adjustment disorder with mixed anxiety and depressed mood, left hearing loss (with pre-existing right hearing loss) and low back sprain and contusion soft tissue injury (advancing and aggravating pre-existing degeneration).

39.  When various categories of injuries are involved, Mr Szeto correctly identified the approach this Court is to take, namely to not combine relevant awards of different injuries but to assess the overall effect on the injured person as per Yun Pun Yuen v Ng Kwok Man trading as East Mountain Engineering Company & Ors, (unreported, HCPI 293/2002, 9 May 2003, Suffiad J) where I presume Mr Szeto was referring to §82 thereof where it was held in relation to PSLA:

“What I have to do in the present case is to look at all the injuries and disabilities suffered by the plaintiff and to arrive at a global figure taking into account all the pain, suffering and loss of amenities in one go. It would be wrong for me to assess an award for the shoulder injury and then add to it another assessment for the wrist injury.”

40.  For reasons that will be more apparent later in this judgment, this Court additionally notes that Yun Pun Yuen (ibid.) where Suffiad J also later at §85 makes observations that are of assistance in being applied to the present case, namely that Suffiad J considered the plaintiff giving evidence in court and also considering the medical evidence combined, their totality in effect being:

“However, having seen the plaintiff give evidence in court and having taken note of all the evidence, in particular the medical evidence, I am unable to say that the injuries and disabilities of the plaintiff in this case can be said to be such as would “mar general activities and enjoyment of life” for the plaintiff although I do accept that his injuries would hinder him to some extent. As such, I am of the view that his disabilities fall just short of this category.”

41.  Mr Chan for the defendants made a general submission to the effect that this Court is not simply and entirely bound by expert evidence since experts are only here to assist and this Court is free to make its own decisions. Whilst Mr Szeto for the plaintiff was prepared to accept the aforesaid proposition as generally correct, he emphasized the particular features of this case and to note the following specific matters, namely:

(a)  The defendants had not made clear at trial which expert, which report and what part(s) thereof that this Court should depart from;

(b)  Similarly, the Defendants had not given any reasons at trial to make clear why any departure from the available expert evidence would be necessary and appropriate;

(c)  This case was not a situation whereby the parties had their own experts and counter arguments were presented in which case this Court would be free to make the appropriate adjudication on the issues in dispute. On the contrary, this case is where parties agreed to the direction that all experts were not required to attend trial and be examined and accordingly, in so much as it would be suggested that there may arise objective contrary evidence, (i) either such matters should already had been included in the original brief to the subject expert and had been considered by the same, or, (ii) if not so included, the subject expert should be given a chance to consider the same and give his/her opinion thereafter;

(d)  As such, where a single joint expert had expressed an opinion on a particular issue and thereupon is not required to appear at trial to justify their opinion (given the agreement made by the parties to forego the same), very convincing reasons, in terms of both merit and procedure, would have to be shown before the court is to be invited to rule against such opinion.

42.  Both counsel were in agreement in closing submissions that as a tribunal of fact, this Court is not solely bound by the medical expert evidence, whether via the SJE Reports or otherwise but their approaches, particularly to the SJE Reports, differ considerably.

43.  Mr Chan for the defendants highlighted various features regarding this case, one of which is the defendants do maintain there was malingering from the perspective of causation (ie such as where some of the plaintiff’s symptoms were not related or caused by the Accident) as compared to that of exaggeration (the extent of the plaintiff’s symptoms and disabilities). It was submitted by Mr Chan that the defendants were consistent by giving the example that they have maintained that the plaintiff should have been given only sick leave of about 6-months and after which the plaintiff should have been able to return to his pre-Accident occupation with no further loss of earnings.

44.  Mr Chan referred to Rai Surya Prakash v Pacific Crown Security Services Ltd & Anor, (unreported, HCPI 1395/2015, [2020] HKCFI 917) where DHCJ Anson Wong SC held at an assessment of damages and considering a joint medical report of Dr Wong Chin Hong (“Dr Wong”) for the plaintiff, and Dr Ko for the defendants dated 21 July 2016, both experts agreed that the plaintiff had sustained an uncomplicated soft tissue back contusion injury[1] as a result of that plaintiff’s accident and the court thereof came to the finding that the plaintiff was magnifying his symptoms[2], inclusive of the finding that:

“52. I did not lose sight of Dr Wong’s conclusion that it was “plausible” for the plaintiff to have persistent low back pain. However, his opinion must be read in the light of his observation that the plaintiff had “no neurological deficit” and, more importantly, his qualification that there were “some possible over-expression of symptoms and signs” by the plaintiff. Dr Wong’s acknowledgement of “possible over-expression of symptoms and signs” is indeed consistent with Dr Ko’s observation that there were “grossly positive Waddell’s simulation signs signifying certain degrees of inorganic elements”. In other words, the opinions of both experts are fully consistent with, and to some extent supportive of, my finding that there was symptoms magnification by the plaintiff.”

45.  Mr Chan submitted that an equivocal medical expert opinion that finds that an injured person is unable to return to their pre-accident employment is insufficient to discharge their burden to be awarded damages under such a head of damage. It is noted that in the case of Tamang Tikaram v Tong Kee Company Limited and Others (unreported, HCPI 19/2013, 1 April 2015) where DHCJ Paul Lam SC at §77 held that:

“77. Dr Wong’s opinion is equivocal: he merely said that Tamang’s ability to return to his previous job will be compromised and there are better jobs for him; but he did not say in clear terms that Tamang cannot return to his previous job. Further, his opinion in this respect is based substantially on the subjective complaints of Tamang, which, as mentioned, he had not examined critically at all. Although Dr Chun did not rule out the possibility that Tamang may still suffer some residual problems, he took the view that he should be able to return to his work. His opinion is based on a more objective and critical analysis of Tamang’s complaints. The burden of proof is on Tamang to prove that he cannot return to his previous job due to the residual disabilities caused by the injuries. I am not satisfied that he has discharged the burden of proof in this respect.”

46.  Mr Chan for the defendants also emphasized correctly that the defendants have been consistent from since the filing of the Answer to the Revised Statement of Damages that expressly pleaded their position against the plaintiff by, inter alia, highlighting where in the SJE Reports that particular findings are made against the plaintiff.

47.  Regarding the SJE Reports, Mr Chan for the defendants relied on Li Cheuk Lam (supra) at §39 (but for completeness sake this Court also cites those related paragraphs herewith), namely (this Court would note particularly where a single joint expert report is relied upon):

“25. The plaintiff has sort to rely on the single joint expert report of Dr. James Kong which stated: “Nature / Degree of Permanent Disability …. Mild soft tissue residue of right knee pain”

…

37. Of course, like the “subjective” evidence by the plaintiff, Dr. Kong needed not accept the Tuen Mun Orthopaedics records as the truth. It is not an expert’s role to determine the truth of any evidence anyway. However, he must address this scenario as well. It is the duty of an expert to address each “alternative” scenario presented before him on an even-handed manner. For example, he might discuss that, if such medical records were true, whether there was any medical explanation why complaints like “bony tenderness” might seemingly re-emerged after an apparent recovery, and the possible diagnosis, pathology and likelihood of such.

38. Dr. Kong has completely ignored such evidence, and has clearly been “picking and choosing” those “subjective” evidence given to him by the plaintiff.

39. As stated by G Lam J in the judgment of 莫錦平 對 葉家啟及另一人 (HCPI 546/2014) Unreported, as I translate:

“The court must take particular care in situations when the plaintiff claimed to suffer from chronic pain beyond normal recovery time when there was no objective evidence to prove the plaintiff has continuous injury…”

40. As such, I do not accept Dr. Kong’s opinion that the plaintiff has “mild soft tissue residue of right knee pain”. As discussed above, Dr. Kong has failed to discharge his duty to the court.”

48.  Mr Chan invited this Court to consider that the plaintiff’s subjective complaints were not supported by the objective medical evidence and referred particularly to the case of Lai Sin Yan Elsie v Tata Communications (Hong Kong) Limited (HCPI 1092/2015, Bharwaney J, 15 November 2019). Lai Sin Yan Elsie (ibid) was a trial on both liability and quantum and Mr Chan did not make express reference to which particulars aspects of the said case he was inviting this Court to consider, but as an example it will be noted that the orthopaedic experts for both plaintiff and defendant in that case were not called and the joint report adduced without their attending trial. The plaintiff’s orthopaedic expert agreed that some of the plaintiff’s features could not be completely explained on clinical grounds nor did he rebut the defendant’s orthopaedic expert’s grounds.

49.  Lai Sin Yan Elsie (ibid.) went on to consider whether the plaintiff’s orthopaedic condition was additionally linked to the plaintiff’s psychiatric condition that was found by the plaintiff’s psychiatric expert as having major depressive disorder (“MDD”) and post traumatic stress disorder (“PTSD”) versus the defendant’s psychiatric expert as having adjustment disorder with depressed mood only with the key difference between the findings is due to the respective experts either opining the plaintiff was exaggerating her mental symptoms. The impact on damages was, inter alia, whether the plaintiff could return to pre-accident duties and whether sick leave of an additional 6-months of sick leave from the date of the report or simply no sick leave being granted at all. Not unlike the basis of considerations found in Li Cheuk Lam (supra), Bharwaney J also pointed out that both experts emphasized that in the field of psychiatry that a patient’s complaints and symptoms were necessarily subjective so a patient’s credibility was of the utmost importance and that consistency was the core of reliability. Both psychiatric experts in that case agreed that the development of mental symptoms subsequent to the accident was attributable to the accident.

50.  Ultimately it was found in Lai Sin Yan Elsie (ibid) that after considering all of the relevant medical history of the plaintiff, cross-examination of the plaintiff and the experts at trial, it was found that the plaintiff gave untruthful evidence when adopting her witness statement. Furthermore, the court ultimately found against the plaintiff on her orthopaedic and psychiatric condition as notably mentioned:

“112. I do not accept the plaintiff’s submissions which I have quoted above. The plaintiff has confused the duty of an expert to conduct a forensic evaluation with the court’s function to make findings of fact. After a forensic evaluation an expert may conclude that the plaintiff was exaggerating and malingering. The court, after trial, may find as a fact that the plaintiff was genuine and not a malingerer. In such an event, the court will not accept the opinion of the expert. And if the court makes a finding that the plaintiff was exaggerating and malingering, it would have little difficulty accepting the evidence of the expert. I also do not accept the submission that Dr Yu prejudged the plaintiff as being untruthful.

113. I accept Tata HK’s submissions which I have quoted above. For the reasons set out in those submissions, I prefer the opinions of Dr Chun and Dr Yu [in that case the defendant’s orthopaedic and psychiatric experts respectively]. I find that the plaintiff is a malingerer and grossly exaggerated her injuries and symptoms. …”

51.  I agree with Mr Szeto with the general observation that where there is a joint single expert report that has been furnished to this Court and there has not been an opportunity to directly hear from or to cross-examine that single expert and their report, this leaves less room for this Court to depart from their findings. Mr Szeto for the plaintiff submitted that the defendants did not even attempt to show at trial that there convincing reasons to depart from the SJE Reports and therefore it would be unfair and undesirable for this Court to depart from the medical opinions expressed by the experts in the manner advanced by the defendants.

52.  This Court disagrees with Mr Szeto since there is still opportunity for this Court to consider the overall factual aspects of the case which would include the plaintiff’s witness statement, as also tested under cross-examination, as also a close consideration of the SJE Reports filed whether in themselves and also as tested under cross-examination, to the extent that there can be a departure from the findings of the SJE Reports as illustrated in the various cases cited hereinabove. I would add that the defendants’ position against the SJE Reports were made clearly and early in this case since such objections were pleaded to the extent that the Answer to the Revised Statement of Damages placed a marker on the disputed matters by the defendants and were thereafter fairly pursued at trial in an open fashion.

Observations on the factual evidence

53.  For the avoidance of doubt, neither party doubted or in fact required much from the 2^nd defendant’s witness, namely Madam Chan Shuk Kwan, who is the Human Resources Manager of the 2^nd defendant whose role in these proceedings was merely to gather information about the Accident and related documentation. More specifically, Madam Chan gave evidence in relation to the plaintiff’s duties, earnings and employees’ compensation payments that have been paid to him in respect of the Accident.

54.  The only other factual witness was the plaintiff himself who give viva voce evidence and was examined in court. The plaintiff was also taken to an investigator’s surveillance video evidence (the “Surveillance Video Evidence”) that showed the plaintiff at different times (30 April 2024, 2 May 2024, 14 May 2024, 17 May 2024) and at different locations in public and questioned on matters arising from, inter alia, how he walked, how he navigated himself on the streets, aspects of his balance, aspects of him using and interacting with his mobile phone, aspects of his awareness and reactions to being in public areas and other related matters.

55.  Before commenting on the plaintiff’s evidence given under cross-examination, I remind myself of the oft quoted considerations in relation to the assessment of evidence given by factual witnesses and the useful guidelines have been given by DHCJ Eugene Fung SC (as he then was) in Hui Cheung Fai & Another v Daiwa Development Ltd & Ors, (unreported; HCA 1734/2009; 8 April 2014) in which the learned judge held:

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

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)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.”

56.  I remind myself that what is of importance is the plaintiff’s internal consistency of his evidence, whether his evidence is consistent with other documentary evidence which cannot be disputed, where evidence comes from the SJE Reports to be cognizant of it not being subject to cross-examination and thus limited in that respect, and that referring too much on the demeanour of the plaintiff (or any witness) is likely to give limited reliability on the truthfulness of the evidence given in the box. In the present case, a key issue is one of credibility and whether the plaintiff’s subjective complaints after the Accident is supported by the objective evidence which would include the quality of the evidence given by him in this Court.

57.  Given the foregoing, although the plaintiff was generally responsive, alert, answered some questions directly under cross-examination. However, this Court also found that he was evasive on certain questioning and not an entirely credible witness on certain issues, particularly the extent of his symptoms and disabilities, and when he genuinely felt that he could return to work.

58.  Mr Chan has commented about the fact that the plaintiff did not need a break although sitting in the witness box for a relatively long duration, although also noted by this Court, this was a feature with only some impact on this case, as was found in the case of Rai Surya Prakash (supra) at §44 as per footnote 1 hereinabove.

59.  Where necessary, the plaintiff’s credibility will be discussed together with the findings on the following parts of this judgment which will consider the SJE Reports and the awards for the various heads of damage claimed. On the issue of the plaintiff’s factual case, it was impressed upon this Court by Mr Szeto for the plaintiff that an important feature of this case was the fact that the plaintiff suffered from multiple symptoms and disabilities as a result of the Accident.

60.  Mr Chan for the defendant remarked that the Surveillance Video Evidence showed the plaintiff did not appear to have any problems with his sight, hearing or manoeuvring on city streets nor instances where the plaintiff was using his mobile phone with little or no problems seeing or operating the screen of his mobile phone or speaking on the mobile phone without needing to make allowances for hearing or particularly making adjustments or favouring one ear over the other. As observed by Dr Woo in the SJNR, the plaintiff also read instructions at bus-stops and boarded the bus unaided, was vigilant of his environment when crossing the road.

61.  Mr Szeto explained that the Surveillance Video Evidence and or the same or similar information would have been available when the SJE Reports were prepared. Mr Szeto’s comments are not entirely correct since having reviewed the SJE Reports, the Surveillance Video Evidence appears to not have been given to the medical experts who had prepared the SJPR or the SJORR which are rather critical in this case since those aspects of the plaintiff’s injuries are most significant as agreed between the parties and this Court. In any event, it was impressed upon this Court by Mr Szeto that the medical experts’ respective opportunities to consider and examine the plaintiff would have been extensive and sufficient to detect any malingering or exaggeration.

62.  Mr Szeto also highlighted that as particularly relating to the plaintiff’s psychiatric condition which Mr Szeto emphasized was “undisputed” (but this Court, as already explained, considers that that does not mean a single joint expert report is “undisputable”, particularly in the present case), the plaintiff was a truthful witness who would have marked distress out of proportion due to his stressors and that this was his real and honest understanding (and presumably also the basis) of his pain and discomfort.

63.  In any event, having watched the Surveillance Video Evidence as well, this Court is generally in agreement with Mr Chan’s aforementioned commentary on the plaintiff in this regard and noted that there was some number of persons on the sidewalk on certain excerpts from the Surveillance Video Evidence such that the plaintiff required some relatively quick body movement to allow for moderate sidewalk activity from other persons.

64.  For the avoidance of doubt, Mr Szeto accepted that as a matter of objective pathology, the plaintiff’s orthopaedic problems, eye problems, hearing problems, neurological problems, all could have scored some good recovery by the time of the Surveillance Video Evidence or even thereafter. However, Mr Szeto emphasized his case is the plaintiff’s symptoms and disabilities surfaced all within the first six months after the Accident when supposedly, as an example, the plaintiff should have scored a good recovery on orthopaedic injuries, but the plaintiff’s symptoms and disabilities all surfaced about 2-3 months after the Accident.

65.  As such, Mr Szeto advanced the argument that when the plaintiff’s symptoms and disabilities all manifested themselves they formed part of the plaintiff’s “undisputed” clinical features of the plaintiff’s psychiatric injuries and that, even if all the objective pathologies were gone, even if he actually “recovered”, he honestly did not feel that way because of his psychiatric injury. Mr Szeto invited this Court to understand and accept his psychiatric injuries, one has to bear in mind the timing whereby the psychiatric injuries interact with other forms of injury, in particular at the early stages immediately after the Accident because that was the period of time that these symptoms and disabilities were very vivid to the plaintiff, such as when he was at the hospital or when he was idling at home. Once the plaintiff was subject to such symptoms and disabilities, whether it was pain, a visual problem or hearing problem, because of the plaintiff’s psychiatric injury, he would have marked distress out of proportion from that and thus the plaintiff would have significant functional impairment, in this particular case, Mr Szeto emphasized it would be in the form of hearing and visual loss.

66.  Therefore, Mr Szeto submitted that he was not suggesting there was no recovery by the plaintiff per se but that even with possibly good recovery, that would not assist the plaintiff’s psychiatric condition due to the Accident. Mr Szeto stated that if there was criticism of the plaintiff of exaggerating by the defendants, that was in effect denying the very feature of his diagnosis which would be “very unfair”.

67.  The submissions and approach which Mr Szeto advanced hereinabove will be reconsidered when discussing the SJE Reports, my findings on the relevant heads of damage and the relevant authorities (many of which have already been considered hereinabove) which are then applied accordingly.

68.  For the sake of completeness and as already discussed under the topic of the approach to medical experts and the SJE Reports by reference to paragraphs 33 (namely Zahid Anwar at §25), 42 and 49 (namely Lai Sin Yan Elsie at §§112-113) malingering is an issue that will need to be considered and is not bound by experts’ opinion evidence.

SJE Reports considered at assessment

69.  The SJE Reports will be considered in the order of the SJOR, SJOPR, SJNR, SJENTR and finally the SJPR.

SJOR

70.  Orthopaedically, Dr Ko diagnosed the plaintiff as having sustained a soft tissue injury to the low back region, involving a sprain/contusion mechanism which he considered to be entirely consistent with and compatible with the mechanism of the Accident. MRI imaging revealed that the plaintiff suffered from significant pre‑existing spinal degeneration with nerve root impingement of which Mr Chan did not challenge this aspect of the medical evidence.

71.  Mr Szeto pointed out that Dr Ko’s further opinion that the Accident might have accelerated the plaintiff’s previously non‑symptomatic degenerative condition by approximately 6 to 8 years, thereby rendering it symptomatic and in this regard, the physical recovery from the primary soft tissue injury does not represent the full clinical picture: the secondary development, namely the advancement and manifestation of degenerative symptoms resulting in nerve impingement, has overtaken the natural course of events and now constitutes a material component of the plaintiff’s present condition.

72.  Dr Ko opined that the Plaintiff sustained an uncomplicated soft‑tissue injury to the lumbar region, without any significant objective abnormality. In particular, there was no evidence of lower‑limb neurological deficit, dysfunction, or impairment. He further considered that, notwithstanding the presence of pre‑existing multilevel degenerative changes in the lumbar spine, the prognosis for the soft‑tissue injury was excellent. In his view, the Plaintiff’s condition should have reached a stable and static state, achieving maximal medical improvement by around October 2020, beyond which no further treatment, investigation, or rehabilitation would have conferred meaningful benefit.

73.  Dr Ko concluded that a period of sick leave of approximately six months, up to October 2020, would have been adequate for the Plaintiff’s orthopaedic and musculoskeletal injuries. Taking into account the Plaintiff’s pre‑accident duties as a tow‑truck driver, he considered that the Plaintiff would have been fit to resume his pre‑accident employment by around October to December 2020, with no significant functional limitation arising from the residual effects of the lumbar injury and, at most, only minimal impairment in work efficiency.

74.  Accordingly, particularly from late 2023 onwards when the plaintiff attempted to resume employment, it was and remains reasonable for him to experience subjective low back pain, numbness and related symptoms. These subjective complaints, in light of his co‑existing psychiatric condition, was perceived by him as more severe than the underlying objective pathology might otherwise suggest.

75.  Insofar as the SJOR is concerned, Mr Chan accepted that it should be accepted as is and it was brought to this Court’s attention that the SJOR had a supplemental report saying that the advancement of the plaintiff’s degenerative condition by 6-8 years giving him the current symptoms that he was actually suffering from were of little effect on his working capacity and general activities of daily life.

76.  Mr Chan in cross-examination put to the plaintiff the job duties explained by Dr Ko, namely that there would be no heavy manual exertion by the plaintiff since he was essentially a driver, to which the plaintiff agreed.

77.  Given the foregoing, there is not too diverse a view on the orthopaedic aspect of the plaintiff’s case, save for its impact on the plaintiff’s psychiatric condition on him which will be dealt later in this judgment.

SJOPR

78.  Ophthalmologically, Dr Liang considered the plaintiff’s condition in the SJOPR.

79.  Mr Szeto advanced for the plaintiff that the initial complaint of the plaintiff was gradual worsening around June 2020 and it would be impossible for the plaintiff to state a false case at that early stage which Dr Liang observed that the plaintiff had been diagnosed with post-concussion syndrome by neurological specialist. On such a basis Dr Liang further opined that patients with this syndrome usually would have multiple eye complaints and the plaintiff’s visual symptoms like blurry vision, difficulty to focus, dizziness, on and off double vision are all typical symptoms. Mr Szeto pointed out that Dr Liang expressly ruled out malingering in the case of the plaintiff and opined that his functional visual impairment is likely to be subconscious and related to his psychiatric problems.

80.  Dr Liang continued and opined that the Adjustment Disorder and Depression are the underlying causes of the plaintiff’s Functional Visual Dysfunction and remarked further that with abnormal mental state and mood, patient can have multiple somatic symptoms including visual symptoms even with a healthy central visual system and concluded that the plaintiff’s visual complaints are part of his psychiatric problem and not a traumatic damage to his organic visual system. Along this line of reasoning, Dr Liang said the plaintiff does have visual disabilities and is not recommended to drive.

81.  Mr Szeto pointed out that there was no contrary evidence is led at trial to rebut the aforesaid.

82.  Mr Chan for the defendant raised the issue that Dr Liang found that multiple objective investigations, including MRI brain imaging and optic nerve fibre analysis, revealed no abnormality within the visual system of the plaintiff. Such findings substantially undermine any allegation of significant bilateral visual field loss. Further, it is of relevance that the plaintiff exhibited no visual symptoms during the first month following the Accident, a presentation that is atypical of visual dysfunction arising from traumatic causes and notably unusual.

83.  Dr Liang opined that the Plaintiff’s visual complaints were most consistent with Functional Visual Impairment rather than any form of organic pathology. He explained that Functional Visual Dysfunction denotes impaired visual acuity or field in the absence of identifiable structural abnormality. In this regard, Mr Chan emphasizes that Dr Liang stated that such dysfunction may arise either from malingering for secondary gain or from subconscious visual loss associated with psychiatric conditions such as depression. Dr Liang further observed that the constricted visual field displayed by the plaintiff was highly characteristic of functional, as opposed to organic, visual loss.

84.  Although Dr Liang considered there to be no obvious evidence of malingering, Mr Chan advances the submission that the basis for Dr Liang’s view appeared to rest primarily on the plaintiff’s limited emphasis on visual difficulties when recounting his disabilities and his greater focus on headache and back pain. It is also notable that in the plaintiff’s witness statement he made no mention of visual impairment in describing his residual disabilities, nor did he assert that any visual issue prevented him from driving. These omissions, it was submitted by Mr Chan, strongly suggest that the plaintiff did not, in fact, suffer from any significant visual impairment affecting his ability to drive.

85.  Further on the timing of events, Mr Chan further submitted that when the plaintiff first reported visual symptoms on 25 May 2020, approximately one month post‑Accident, clinical examination documented normal bilateral visual acuity and normal visual fields. Dr Liang’s assumption of impaired acuity or field is therefore said by the defendants to be unfounded.

86.  Dr Liang also acknowledged that visual field testing is inherently subjective, relying heavily upon the examinee’s cooperation and responses. Accordingly, the presence of field constriction in the plaintiff cannot be assumed to reflect genuine pathology. Indeed, the ophthalmologists at Caritas Medical Centre, as well as Dr Liang himself, recorded marked inconsistencies across the plaintiff’s repeated visual field tests. Whereas Dr Liang’s confrontation test yielded findings of bilateral tunnel vision, Dr Woo reported only mild restriction of peripheral vision in each eye, and the Surveillance Video Evidence was inconsistent with any meaningful visual impairment.

87.  Although Dr Liang appeared to suggest that the plaintiff’s visual difficulties stemmed from post‑concussion syndrome, it is material that he did not identify constricted visual fields as a recognised manifestation of that condition. In contrast, Dr Liang expressly described such constriction as typical of functional visual loss. In any event, and of greater significance, Dr Woo — not Dr Liang — is the neurological expert appointed in this case.

88.  Given the foregoing, the parties are quite divided on the SJOPR.

89.  Mr Szeto also submitted that ophthalmologically (as well as neurologically and psychiatrically) that it was quite common for a patient like the plaintiff with post-concussion syndrome to have visual-based complaints and because the plaintiff reported them early on, it should be considered genuine and then complicated by the following psychiatric problems.

90.  Dr Liang opined that the plaintiff’s visual symptoms were typical of post‑concussion syndrome and it being functionally based and rooted in his psychiatric conditions rather than any organic eye injury. As such, the plaintiff’s symptoms were subconscious in nature, leading Dr Liang to advise that the plaintiff should not drive.

91.  However, this Court notes that Dr Liang found no organic abnormality in the plaintiff’s visual system and considered the alleged visual loss to be functional in nature, noting inconsistencies in testing and the absence of early visual symptoms, which the defendants submit undermines the credibility of the plaintiff’s complaints.

92.  This Court would also note and accept the defendants’ position that the plaintiff had mild post-concussion syndrome to begin with but then that improved rather rapidly, and most of the complaints related to the Accident, by and large, either did not exist or were very well behind the plaintiff by about 6-9 months afterwards. This is then supported by the plaintiff’s visual prognosis being “Fair, without structural damage to the visual pathway. His visual function can return back to normal with a sound mental status and mood” and from the ophthalmological point of view, “He could return to work as a driver in the future if the psychiatric disorder is well controlled”.

93.  For the purposes of being complete, Dr Cheung’s opinion in his supplemental psychiatric report is that the matter be re-directed to the ophthalmologist at Caritas Medical Centre to see whether they would come to a consensus opinion with Dr Liang but this was never carried out.

94.  The defendants further rely on contemporaneous normal eye examinations, the plaintiff’s failure to mention visual impairment in his own evidence, and this Court’s earlier findings on the Surveillance Video Evidence tend to show that the plaintiff’s visual deficit was neither genuine nor caused by the Accident.

SJNR

95.  Neurologically, Dr Woo considered the plaintiff’s condition in the SJNR.

96.  Mr Szeto advanced for the plaintiff that Dr Woo is of the view that at the time of examination, there was nothing from the perspective of a neurological analysis, that could point to visual and hearing loss of the plaintiff. It was pointed out that Dr Woo agreed that the plaintiff has post-concussion syndrome that accounts for 1% impairment of the whole person and the plaintiff’s last attendance, the plaintiff was still reported with frequent headache and dizziness.

97.  Mr Szeto reminds this Court that it has to be borne in mind that Dr Woo has acutely confined his opinions to a neurological analysis and that he has not sought to argue against the opinion that, owing to his psychiatric injuries, the plaintiff would experience out of proportion distress and subjective significant functional impairment without direct/objective pathology. Mr Szeto submitted that there was no need for the plaintiff to comment further on the opinions of Dr Woo.

98.  Mr Chan submitted that Dr Woo noted the plaintiff complained of intermittent headache since the Accident, though the symptom had improved compared with the early post‑Accident period. The plaintiff further stated that he was unable to distinguish between dizziness and headache, maintaining that his principal complaint was headaches and any dizziness, if present at all, was minimal and non‑disabling.

99.  Dr Woo recorded that the plaintiff claimed to have developed hearing impairment only after the Accident and began on the right side and was followed by hearing difficulties on the left. The plaintiff asserted that he relied on his left ear for verbal communication, whereas the right ear could function only in a quiet environment but in any event he had not worn any hearing aid.

100.  Dr Woo also recorded that the plaintiff alleged the onset of visual dysfunction approximately one to two months after the Accident. The Plaintiff stated that both eyes were equally affected and that faces appeared blurred and occasionally double. Nevertheless, the plaintiff was able to perceive oncoming vehicles when crossing the road, and despite claiming deterioration of vision, he did not require eyeglasses.

101.  The plaintiff further informed Dr Woo that various attempts to resume work were unsuccessful owing to headache, back pain or insomnia and that his work capacity was limited by his continued headaches and low back pain.

102.  Mr Chan highlighted the fact that Dr Woo conducted a comprehensive neurological examination and found the plaintiff’s mood to be neutral and detected no signs of anxiety or depression, nor was there any apathy, aggressiveness or irritability, and cognitive functions were normal with fundoscopy unremarkable. While a mild restriction of the peripheral visual field in each eye was observed by Dr Woo, the plaintiff demonstrated no difficulty navigating narrow spaces and did not collide with surrounding objects. Examination of the ears of the plaintiff revealed normal external auditory canals and tympanic membranes. The plaintiff was not using any hearing aid and was able to communicate at an ordinary conversational volume, without requiring Dr Woo to raise his voice.

103.  Given the foregoing, Mr Chan submitted that Dr Woo’s findings are unremarkable in that it was opined that the plaintiff had at most a very mild traumatic brain injury as a result of the very mild traumatic brain injury due to the Accident. The plaintiff had residual headache and subjectively-impaired memory, akin to the diagnosis of a very mild post-concussion syndrome but there was no cognitive, vestibular or physical deficit and the post-concussion syndrome accounts for at most a 1% impairment of the whole person. Furthermore, the plaintiff’s complaint of bilateral hearing loss commencing after the Accident was not based on any radiological evidence of any damage to the auditory apparatus in the middle ear or the inner ear since Dr Woo’s examination showed bilateral conductive deafness but the plaintiff was able to communicate at ordinary voice level.

104.  The defendants’ position is that Dr Woo considered in detail and comprehensively the plaintiff’s claim of subjective symptoms against the objective evidence with detailed, comprehensive, logical and well-reasoned discussion and reasoning in reaching his opinion that the Plaintiff suffered no more than a very mild traumatic brain injury which should have recovered within 3-6 months after the accident requiring sick leave for no more than 6 months. Thereafter, he should be able to resume his pre-injury occupation as a tow truck driver.

105.  Given the foregoing, this Court finds that Dr Woo has given quite a comprehensive, well-reasoned medical report which is important to this case since the plaintiff’s head injury aspect underlies much of the plaintiff’s complaints but it is quite clear that the plaintiff also suffered no direct eye injury, no direct ear injury. Dr Woo has carefully considered the plaintiff’s subjective complaints and the objective medical evidence, in forming his view, concluded that the head injury did not cause the plaintiff any eye problem and the head injury did not cause the plaintiff any hearing problem. To that effect, the SJOPR and SJENTR will also be considered in that light since Dr Woo is the neurological expert due to consideration of the head injury suffered in the Accident.

106.  This Court differs in its finding from Dr Woo insofar that the condition and symptoms could to an extent be believed and observed when considering the plaintiff’s witness statement, the attempts by the plaintiff to find post-Accident alternative employment is believed and believed to be genuine, the Surveillance Video Evidence shows some slight signs of the plaintiff having some difficulty in alighting the bus and him having an apparent attempt to favour against his problematic left side hearing which therefore indicates a post-concussion syndrome suffered by the plaintiff resulting in a mild traumatic brain injury causing him symptoms akin to a mild post-concussion syndrome.

SJENTR

107.  Otorhinolaryngologically, Dr Lo considered the plaintiff’s condition in relation to hearing issues.

108.  Mr Szeto advanced for the plaintiff that from the medical records from the ENT Clinic of Queen Elizabeth Hospital dated 22 May 2023 and 16 July 2024 respectively, indicated that there was “left mild-severe downsloping SNHL” with fair reliability of the plaintiff. Furthermore, Dr Lo unequivocally diagnosed that the plaintiff’s left side head injury had caused left hearing impairment. Accordingly, Dr Lo also expressly recorded that the plaintiff has hearing difficulty in noisy environment.

109.  The defendants point out that the medical report dated 2 April 2025 regarding the plaintiff’s pure tone audiogram (“PTA”) carried out on 16 November 2020 from the ENT Clinic of Queen Elizabeth Hospital showed right severe sensorineural hearing loss and left moderate to severe sensorineural hearing loss with fair reliability. This compared to the testing of Dr Lo as found in the SJENTR where Dr Lo’s PTA of the plaintiff showed right profound sensorineural hearing loss and left moderately severe to profound possibly mixed hearing loss.

110.  Dr Lo commented that inconsistent responses were noted throughout the test and the test reliability was considered to be poor. The SJENTR found that mild head injury may cause cochlear concussion and hearing impairment but is unlikely to cause profound sensorineural hearing loss. Dr Lo says that the PTA is a subjective test and then CERA assessed the plaintiff’s hearing threshold on 25 November 2025 and showed the plaintiff exaggerated his earlier PTA assessment.

111.  Dr Lo concludes that the plaintiff’s right‑sided hearing loss is unrelated to the Accident, any left‑sided impairment is minimal (1% WPI), he required at most two weeks’ sick leave and could resume his pre‑injury duties, with hospital records showing he was in fact granted only three days’ ear‑related sick leave. The conclusion of Dr Lo is well-founded and this Court readily adopts the same.

SJPR

112.  Psychiatrically, this medical aspect of the SJE Reports is the most important and impactful on the present case.

113.  Mr Szeto indicated to this Court that once it is established that the Accident did cause serious injuries to the plaintiff, it was respectfully submitted that the key to the correct and proper understanding of the true nature and extent of the plaintiff’s injuries in this particular case is on his psychiatric injuries/sufferings. Based on the foregoing, it must also be accepted that the plaintiff’s position is also dependent on whether the Accident did cause serious injuries to the plaintiff.

114.  Mr Szeto again considered it crucial to note that it is clinically significant that the behaviours of the Plaintiff would bear the following two features, namely, (a) marked distress that is out of proportion to the severity of the stressor and (b) significant impairment in social or occupational functioning. Mr Szeto therefore stated that it was a mere and direct reflection of the plaintiff’s psychiatric sufferings that he would subjectively feel more with his pain and his visual and hearing loss and therefore the plaintiff should not be misunderstood or criticized as exaggerating his suffering since any attempt to accuse the plaintiff of exaggerating his sufferings is to deny the plaintiff of his clinically significant behaviour of his psychiatric injuries as diagnosed.

115.  I repeat my observations and findings at, inter alia, paragraphs 22, 27, 79, 83, 87-88, 91-93, 100 hereinabove which deals with my findings on the plaintiff’s eye(s)/visual problems; paragraphs 25-26, 110-111 hereinabove deals with my findings on the plaintiff’s hearing problems; paragraphs 60, 63, 65, 95, 99, 102-103, 105-106 where there is an overlap of both aforesaid aspects.

116.  Dr Cheung diagnosed the Plaintiff with Adjustment Disorder with Mixed Anxiety and Depressed Mood of mild-moderate severity that was totally attributable to the Accident. Mr Szeto asserted that this was undisputed but with respect that is incorrect when considering the defendants’ position (to be discussed) and a considering of the aforesaid authorities at paragraphs 48-50 hereinabove with the notable and particular approach taken in Lai Sin Yan Elsie (supra) at §§89-110 that is further discussed hereinbelow.

117.  When the plaintiff was interviewed by Dr Cheung on 5 December 2023 he said that for more than 3 years he continued to suffer from persistent physical symptoms including low back pain which was a sharp pain that could be triggered by sitting for 1/2 hours, walking for 300 meters, and standing for 10-15 minutes. He also told Dr Cheung that it could only be slightly alleviated by analgesics, which he was still taking twice per day. Among all of the plaintiff’s physical symptoms, he ranked his low back pain and headache as equally his most serious physical symptoms.

118.  Dr Cheung found that:

(a)  the plaintiff’s diagnosis is adjustment disorder with mixed anxiety and depressed mood;

(b)  the causative factors of the plaintiff’s adjustment disorder, according to the plaintiff, are the traumatic nature of the Accident, persistent physical sufferings and disabilities with unsatisfactory improvement, uncertain prospect of future career and work, financial difficulties, inability to sleep well, litigation processes, and absence of any family members who could give him support when he needed it;

(c)  there is no evidence of malingering insofar as his psychiatric symptoms are concerned, but his subjective overall rating of himself on a 0-10 scale is a bit too low compared with what would be expected from the objective data, signifying some degree of exaggeration;

(d)  the current severity of the plaintiff’s mental symptoms is mild-moderate;

(e)  the prognosis of the plaintiff’s adjustment disorder depends on the resolution of the relevant stressors (namely, the causative factors) and since many of these stressors may not resolve easily within a short time, his psychiatric symptoms will likely last for some years to come;

(f)  continuation of psychiatric treatment at Yung Fung Shee Psychiatric Centre for his adjustment disorder will be required for at least 3 to 5 years from the time of the psychiatric examination;

(g)  however, it is also notable that the plaintiff’s mood was slightly anxious and depressed, but there was no indications of apathy, aggressiveness or irritability;

(h)  resumption of his pre-injury occupation will be limited mainly by his physical condition;

(i)  all the previous sick leaves granted are justifiable as the combined effect of his physical and mental symptoms;

(j)  the accident caused 4% impairment of the whole person from the psychiatric perspective; and

(k)  the plaintiff fulfils the description “Occupational and Social Impairment due to mild symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication”.

119.  Mr Chan for the defendants submitted that Dr Cheung did not say anything to the effect that the plaintiff’s psychiatric disabilities caused aggravation to the plaintiff’s physical pain whereas it was mainly the plaintiff’s physical conditions that caused the plaintiff’s psychiatric disabilities.

120.  Lai Sin Yan Elsie (supra) at §§89-110 where the medical expert for the defendant therein, Dr Yu, concluded that the plaintiff had exaggerated both her physical and psychological symptoms, leading him to believe she suffered only very mild anxiety rather than major depressive disorder or PTSD. He identified multiple inconsistencies and behaviours such as overstated pain, inappropriate use of mobility aids, and questionable reports of suicidality and hallucinations — that, in his view, demonstrated symptom exaggeration.

121.  The defendant argued that the plaintiff’s reported psychological symptoms were far more severe than could reasonably result from the minor accident she experienced, and that her presentation fit Dr Yu’s diagnosis of Adjustment Disorder with Depressed Mood rather than serious psychiatric conditions. Dr Wong, expert for the plaintiff, acknowledged in the joint psychiatric report that because the case relied heavily on subjective symptoms, the plaintiff’s credibility and consistency were crucial.

122.  However, instead of scrutinizing her reliability, Dr Wong appeared to assume the truthfulness of her account, leading him to diagnose both Major Depressive Disorder and PTSD without addressing significant inconsistencies. He ignored multiple contradictory accounts the plaintiff had given to different doctors, including an implausible claim that the plaintiff fell from the top of a five‑ or six‑tier human pyramid, as well as several exaggerations highlighted by the orthopaedic experts.

123.  It was ultimately found in Lai Sin Yan Elsie (supra) that because Dr Wong failed to consider these discrepancies and also failed to apply the objective requirement of PTSD Criterion 1, his diagnoses were undermined. Dr Wong later showed uncertainty about his conclusions when questioned by the court, acknowledging concerns in light of the plaintiff’s inconsistent and exaggerated descriptions.

124.  I repeat my observations and findings at, inter alia, paragraphs 11, 19, 70, 73-74 hereinabove which deals with my findings on the plaintiff’s low back pain; paragraphs 23, 95, 98, 103 hereinabove deals with my findings on the plaintiff’s headache; paragraphs 22-21 and 101 where there is an overlap of both aforesaid aspects.

125.  This Court finds that the plaintiff has overstated his symptoms and disabilities to greater or lesser extents whether regarding aspects of his visual and hearing conditions and more importantly to the issue of his psychiatric condition regarding aspects of his low back pain and headache as previously discussed.

126.  The result from the aforesaid findings is that the impact on this Court’s findings regarding the plaintiff’s psychiatric condition is that he has exaggerated his symptoms and disabilities. Taking some guidance from, inter alia, Lai Sin Yan Elsie (supra), this Court is not solely bound by Dr Cheung.

127.  As such, this Court finds that the plaintiff’s diagnosis was notably less than an adjustment disorder with mixed anxiety and depressed mood which would be consistent with the Accident, his medical history, the various recorded prognosis made by the related experts as expressed in the SJE Reports showing improved (and by and large completely recovered but for the allegedly remaining psychiatrically-related reasons) particularly where relating to the stressors (or lack thereof) involved, factual observations made by this Court and highlighted hereinabove.

128.  In addition to the foregoing paragraph and upon also considering that Dr Cheung found that at best the current severity of the plaintiff’s mental symptoms was mild-moderate, there were no indications of apathy, aggressiveness or irritability and that the plaintiff was signifying some degree of exaggeration, it could not be said that at the time of the plaintiff’s interview with Dr Cheung on 5 December 2023 the plaintiff still suffered from adjustment disorder.

129.  Recovery of the plaintiff is found by this Court as explained in the foregoing paragraph since Dr Cheung also found that “Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.” to which this Court also refers to paragraph 139 hereinbelow which states the relevant period(s) when the plaintiff recovered from his other symptoms and conditions. Given this Court considering all of the factual and medical evidence available, the psychiatric symptoms of the plaintiff persisted after the Accident but not lasting until 5 December 2023. This Court finds that the plaintiff manifested his full recovery from his, inter alia, psychiatric condition, at the latest by 15 months after the Accident, namely by 29 July 2021.

130.  Psychiatric treatment at Yung Fung Shee Psychiatric Centre for his adjustment disorder would not have been required from the beginning of August 2021 onwards and that resumption of his pre-injury occupation would not be limited.

131.  For the sake of completeness, the plaintiff does not fulfil the description “Occupational and Social Impairment due to mild symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication”.

Assessment of damages

132.  This Court has taken into account the aforementioned matters under the headings of injuries and treatment, A&E and other medical reports and most importantly the SJE Reports, when considering the awards to be made under various heads of damage which the plaintiff claims.

PSLA

133.  This Court considers where in Cheung Chak Fui v Sun Hing Organization Plastic Management Ltd. (unreported, HCPI 91/2008, 30 September 2011, Au J (as he then was)), the plaintiff suffered back, chest and head injuries. He suffered multiple soft tissue contusion injuries to the head, chest and back and had mild post-concussion syndrome with mood change. He was left with residual headache and dizziness. The plaintiff was awarded a sum of HK$150,000.00 as damages for pain, suffering and loss of amenities.

134.  More recently would be in Lam Hon Keung v Hong Kong Aero Engine Services Ltd (unreported, DCPI 2929/2019, 24 February 2021, H H Judge KC Chan) a sum of HK$400,000 was awarded for head injury with post-concussion syndrome with severe headache and dizziness that occur in bouts each day where the plaintiff were aggravated by the emotional burden of not being able to take care of his then young family as he would have intended.

135.  Applying the principles from Ng Tat Kuen v Tam Che Fu & Ors (unreported, [2019] HKCFI 1191, HCPI 896/2013, Bharwaney J at §§91-95), awards of damages for pain, suffering and loss of amenities should be adjusted with reference to inflation rates in Hong Kong.

136.  Considering all the circumstances and in this Court’s view, a sum of HK$325,000 for PSLA is reasonable and appropriate.

Pre-trial loss of earnings

137.  The defendants were prepared to adopt HK$19,500 as the plaintiff’s average monthly earnings before the Accident which is the same as the plaintiff’s more reasonable alternative which was rounded also to the figure of HK$19,500.

138.  This Court also accepts the plaintiff’s position that there should be an increase year-on-year in the amount of 2% to the plaintiff’s average monthly earnings. The defendants’ evidence shows that the salary of a comparable employee was seen to have increased from HK$10,968 (2020) to HK$11,242 (2022), to HK$11,636 (2023).

139.  The sick leave granted should represent the combined effect of the plaintiff’s physical symptoms (notable from the other SJE Reports are found at paragraphs 73, 92, 104 and 111 hereinabove where the shortest sick leave accordingly would have been 3-days after the Accident whereas the longest sick leave without psychiatric related reasons would have been 9 months after the Accident) and mental symptoms (which this Court has found was exaggerated and therefore existed in a lesser condition being that of adjustment order which lasted until the end of July 2021).

140.  Given the foregoing, this Court finds that the sick leave fairly granted to the plaintiff would have been until the end of July 2021.

141.  The plaintiff would be continuously certified unfit for work from 29 April 2020 and until 29 July 2021 would mean the plaintiff is entitled to pre-trial loss of earnings would be the amount of:

(HK$19,500 x 12[3]) + (HK$19,500 x 1.02 [HK$19,890] x 3[4]) = HK$293,670

142.  Pre-trial loss of MPF would be the amount of:

HK$293,670 x 5% = HK$14,683

143.  Total for pre-trial loss of earnings would be HK$293,670 + HK$14,683 = HK$308,353

Post-trial loss of earnings

144.  Given that this Court has found that the plaintiff has been able to return to work since 30 July 2021, no award for future loss of earnings and MPF is made.

Loss of earning capacity

145.  It was held in Lai For Yau v Gammon Construction Ltd (DCPI  2576/2019, 11 August 2022, H H Judge Andrew Li) citing Yuk Kok Wing v Lee Tim Loi [2001] 3 HKC 314 per Keith JA at p 319D to 320A where it is well-settled that loss of earning capacity is a recognized head of damage covering the risk that at some future date during the claimant’s working life he will lose employment and will then suffer financial loss because of his disadvantage in the labour market. An award under this head of damage is appropriate where a plaintiff clearly suffers from a handicap in the labour market, such as the likely periodical recurrence of pain symptoms requiring sick leave and medical intervention and reduced working efficiency, which may also make him vulnerable to losing any such employment that he managed to secure.

146.  This Court has found that the plaintiff no longer suffered from any symptoms and disabilities by 30 July 2021 and therefore there is no cogent evidence ore reason for supporting the plaintiff’s claim for loss of earning capacity in this case.

Future medical expenses

147.  Given the findings of this Court as aforementioned, the plaintiff no longer suffered from any symptoms and disabilities by mid-2023 and no award is made to the plaintiff for future medical expenses.

Special damages

148.  Given the findings of this Court as aforementioned, the plaintiff no longer suffered from any symptoms and disabilities by 30 July 2021, the defendants agreed to and this Court allows the award for future medical expenses should only be in the sum of HK$3,000 as pleaded in the Answer to Revised Statement of Damages (ie HK$2,000 as medical expenses and HK$1,000 as travelling expenses).

DCEC 651/2022

149.  A sum of HK$758,734.51 was received as employees’ compensation for which the plaintiff should account for.

Summary on damages

150.  This Court awards damages to the plaintiff in the amounts stated hereinbelow, namely:

	Heads of damage
1.	PSLA	HK$325,000.00
2.	Pre-trial loss of earnings and MPF	HK$308,353.00
3.	Post-trial loss of earnings and MPF	HK$0.00
4.	Loss of earning capacity	HK$0.00
5.	Future medical expenses	HK$0.00
6.	Special damages	HK$3,000.00
	TOTAL	HK$636,353.00

Conclusion

151.  The total amount of damages awarded by this Court is HK$636,353 in favour of the plaintiff with interest.

152.  This Court awards interest to the plaintiff on general damages at 2% per annum from the date of writ to the date of this judgment (HK$19,500), on pre-trial loss of income and special damages at half judgment rate of 4% from the date of the Accident to the date of this judgment (HK$62,270.60) for a total of HK$81,770.60.

153.  The awards to the plaintiff for damages for HK$636,353.00 and interest at HK$81,770.60 results in a combined amount of HK$718,123.60. However, credit must be given to the defendants where compensation was already given to the plaintiff under DCEC 651/2022 in the amount of HK$758,734.51 and it follows therefore that this action must be dismissed.   

154.  It is ordered on a nisi basis that the plaintiff do pay the defendants the costs of this action including all reserved costs, to be taxed if not agreed. The plaintiff’s own costs be taxed according to the Legal Aid Regulations and this order nisi will become absolute unless any party applies to vary by summons within the next 14 days.

155.  It remains for me to thank both counsel for their able assistance.