CHAN MEI HING AND ANOTHER v. LAM KOK HENG

HCPI 786/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 786 OF 2004

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ASSESSMENT OF DAMAGES

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Background

1. The 1^st Plaintiff met a traffic accident in the morning of 19 February 2003 when she was travelling as a rear seat passenger on board the Defendant’s taxi together with her son, the 2^nd Plaintiff.  As a result of the accident, both Plaintiffs suffered personal injuries and were admitted to the Prince of Wales Hospital (“PWH”) for treatments.

2. Shortly after the commencement of this action by the Plaintiffs, the Defendant, through his solicitors, filed an Acknowledgement of Service on 26 August 2004 indicating not to contest the proceeding.  Interlocutory Judgment on liability was entered against the Defendant with damages to be assessed on 4 September 2004.

3. Parties have settled the damages suffered by the 2^nd Plaintiff and this assessment of damages only concerned the damages suffered by the 1^st Plaintiff.  The 1^st Plaintiff originally obtained an appointment before me for the assessment of damages on 1 November 2003.  In light of the divergence of the expert opinion of the respective orthopaedic surgeon engaged by the 1^st Plaintiff and the Defendant on the diagnosis of the injuries of the 1^st Plaintiff and their clinical findings, both Counsel agreed that the hearing should be adjourned so that their experts could attend the hearing to give oral evidence.  Leave was also given to the 1^st Plaintiff to file and serve a supplemental report of her expert Dr. Au Ka Kau (“Dr. Au”) to comment on the latest report of the Defendant’s expert Dr Lam Kwong Chin (“Dr. Lam”).

4. The assessment hearing restored before me July and September this year.  The 1^st Plaintiff herself gave evidence.  Both parties have called their experts Dr. Au and Dr. Lam to give oral evidence on top of adducing their respective expert reports.   The Defendant has produced a video tape for the surveillance conducted against the 1^st Plaintiff by their investigator Truth Seeker.

5. At the end of the hearing, I gave directions for parties’ Counsel to file their Written Submissions and reserved my decision to be handed down which I now do.

Personal Particulars of the 1^st Plaintiff

6. I shall first set out those facts which are agreed by parties.

7. The 1^st Plaintiff was born on 1^st December 1964. At the time of accident, the 1^st Plaintiff was of the age of 38.  At present, she is 42 years old.  She is married with two sons aged 11 and 8 respectively.

8. The 1^st Plaintiff started to work as an English teacher since 1986 after obtaining a degree in Political Science from University of Saskatchewan. She started to work in the Shatin Tsung Tsinn Secondary School, a band one school (the “School”) since 1999. Before the accident the 1^st Plaintiff was a GM (graduate master) teacher grade earning about $46,810 per month with 6% of the school’s contribution for the MPF. The percentage of the School’s contribution for MPF would increase by 1% per year to the maximum of 15%.

9. Before the accident, the 1^st Plaintiff occupied the post as Panel Head for the English subject in the School. A Panel Head Teacher is a teacher with a higher grade, i.e. SGM (senior graduate master) teacher grade. For another two year of stay in the school from the date of the accident, the 1^st Plaintiff would have been qualified for consideration to be promoted to SGM teacher.

10. As a full time Panel Head Teacher in the School before the accident, the 1^st Plaintiff was required to teach three classes with 30 sessions of teaching for a six-day cycle. Each session lasted for 40 minutes. There were 8 sessions of teaching per day with 6 sessions in the morning and 2 sessions in the afternoon. The last session of teaching usually ended at 3:40 p.m.

11. Besides the teaching duties, the 1^st Plaintiff was also required to perform other extra curriculum activities and administrative duties. The 1^st Plaintiff was required to attend school at around 7:30 to 7:45 a.m. in the morning and left school at 7:00 p.m. in the evening on a daily basis.

12. After the accident, starting from 1 September 2003, the 1^st Plaintiff resumed working as a part-time teacher with 60% reduction in salary.  As a part-time teacher, the 1^st Plaintiff was required to teach one class with 10 sessions of teaching per cycle. The 1^st Plaintiff was required to teach about 3 sessions per day in the morning and was not required to perform any other extra curriculum activities and administrative duties. She was able to leave school by 12 noon each day.

13. The 1^st Plaintiff resumed full time teaching with effect from 12^th January 2004 on the request of her headmaster but stopped on 23^rd February 2004 when she was admitted to PWH.

14. The 1^st Plaintiff later resumed part-time teaching at the School with effect from 1^st September 2005 until the present moment with 70% reduction in salary.

15. In November 2005, the 1^st Plaintiff passed her bench mark examination for English subject.

Injuries and Treatments

16. Immediately after the accident the 1^st Plaintiff was sent to the Accident & Emergency Department of the Prince of Wales Hospital on 19^th February 2003 because she experienced bilateral knee pain and back pain. No meniscal, ligamental injury nor legs neurological defects were detected. X-ray showed no fracture. The 1^st Plaintiff was treated with analgesic and physiotherapy.  The 1^st Plaintiff was discharged from the hospital on the same day.

17. On 22^nd February 2003, the 1^st Plaintiff re-admitted to the PWH for increased in pain and she could not walk. She was treated with conservative treatment including analgesics and physiotherapy. The 1^st Plaintiff was discharged three days later. The 1^st Plaintiff needed to use elbow crutches for walking then.

18. After being discharged, the 1^st Plaintiff continued with her follow-up visits as well as physiotherapy sessions.

19. The 1^st Plaintiff re-admitted to the PWH for persisted pain in her knees and back on 1^st March 2003.

20. The 1^st Plaintiff’s right knee pain subsequently diminished after some follow-up visits and she could walk with a quadripod. But the 1^st Plaintiff complained of low back pain as well as neck pain since 12^th March 2003. X-ray of the lumbosacral spine did not reveal any abnormality. However her symptoms improved with physiotherapy and analgesics.

21. Initially there were some improvements to the 1^st Plaintiff’s symptoms, but there was deterioration noted in August 2003.

22. On 13^th August 2003 during a follow-up visit, the 1^st Plaintiff was noted to have some residual symptoms and she could only walk with a stick for 10 minutes. She was advised to have light duty for six months.

23. Since 13^th August 2003, the 1^st Plaintiff complained of left buttock and left hip pain as well as discomfort over the whole left lower limb. Clinically no abnormality was found concerning hip function and lower limb neurological status. X-ray of pelvis and hips were unremarkable. The 1^st Plaintiff was referred to the pain clinic for further management.

24. The cause to the 1^st Plaintiff’s symptoms was not known until a MRI scan was conducted on her lumbar spine on 14^th December 2003. It was found that there was a posterior left sided annular tear of the circumferential type with associated disc bugle at L5-S1 level.

25. Dr. WONG Chun Wing of the Department of Neurosurgery in PWH confirmed that the 1^st Plaintiff had been suffered from prolapsed intervertebral disc at L5/S1 level and referred the 1^st Plaintiff to the Orthopaedic clinic for follow-up. The 1^st Plaintiff was required to rest and avoid excessive exercise.

26. By January 2004, the 1^st Plaintiff still experienced severe back pain and left knee pain, she walked with a limping gait and her walking tolerance was around 20-30 minutes. Light duty was advised.

27. On 23^rd February 2004, the 1^st Plaintiff was admitted to PWH (through Accident & Emergency Department) for increase in back pain and left sciatica. She complained the back pain was on and off which radiated to her left ankle with left leg numbness.

28. Physical examination did not find any abnormality. She was discharged after 14 days of stay in Tai Po Hospital after some improvements but she required a stick for walking.

29. After being discharged from the hospital, the 1^st Plaintiff was referred to the Physiotherapy Department of the PWH for further physiotherapy sessions. After 24 sessions of treatment, the 1^st Plaintiff had some satisfactory improvements. She was able to walk for 30 minutes, stand for 30 minutes and sit for 20 minutes continuously. She still had severe back pain and needed to walk with an umbrella. Her lower limbs strength was mildly decreased in general. Non-organic signs depicted by Waddell’s signs were positive.

30. The 1^st Plaintiff was also referred by the Pain Clinic to Alice Ho Miu Ling Nethersole Hospital for psychological treatments. The 1^st Plaintiff was noted to display some post-traumatic fears and anxiety in relation to the accident. She was recommended to participate in a pain management program aiming to boost her pain and mood management skills. It was also deemed she need 6-12 months more rehabilitation time for her to get back to a reasonable optimal level before returning to work.

31. On 27^th August 2004, a discogram was conducted and confirmed the injuries sustained by the 1^st Plaintiff at L5-S1 level.  Dr. SUN Tin Fung David of PWH opined that the injury was compatible with her symptoms and was likely caused by the accident.

32. After viewing the discogram, the 1^st Plaintiff was suggested by the Doctors to have a fusion operation on her spine. The 1^st Plaintiff did not take up the suggestion.

33. The 1^st Plaintiff was granted sick leave since 19^th February 2003 and was extended regularly until 31^st August 2005.

Major Issues in disputes

34. The Defendant has no dispute on the 1^st Plaintiff’s evidence on her injuries suffered and the treatments received and the description of her work as a teacher both before and after the accident.

35. The major issues in disputes are:-

(a) the true extent of the 1^st Plaintiff’s disabilities in particular her alleged back pain;

(b) whether the 1^st Plaintiff’s has exaggerated her alleged back pain; and

(c) the impact of such disabilities to the 1^st Plaintiff’s life and work and in particular whether she could resume working as a full time teacher.

1^st Plaintiff’s Conditions since the Accident up to Present

36. From the medical reports of the government doctors, the 1^st Plaintiff appeared to be suffering from a relatively minor bilateral knee and back injury with no fracture when she was first examined at the PWH.  In her witness statement, the 1^st Plaintiff claimed that by the time of August 2003, she felt pain all over the body including knees, back, neck, left buttock and left limb.  She said her pain was constant, varying in degrees which limited her duration in sitting, standing and walking.

37. The 1^st Plaintiff said that she is at present still suffering from various pains all over her body including her backs, sometimes with cutting or needle prick feeling.  Such pain was radiating to her left lower limb, from buttock down to heel.  She also has pains on her knees.  As a result, she cannot walk or stand for more than 30 minutes.  Whenever possible, she would carry an umbrella with her when walking so that she can use it as a walking stick if necessary.

38. The 1^st Plaintiff described her pain in particular her back pain in more details during giving evidence at the assessment hearing.

39. According to the 1^st Plaintiff, her pain would vary in degree depending on her condition and/or the weather of a particular day.  She used a scale of 10 degrees to describe her pain with 10 being the strongest tantamount to the pain in giving birth of a baby.  In a good day, she would experience the pain in the region of 3 to 4 degree of which she had learnt how to cope with it now.  When the pain was in the region of 5 to 6 degree, she would need resting and walked with an umbrella.  With pain in the region of 7-8 degree, she would need to take pain-killers and had to lie in bed.  In fact, she said during the 1^st day of the hearing that she had taken one painkiller in that morning and her memory was somehow blurred by the painkiller she took.

40. Later, she explained to the Court her pain in the morning of the 3^rd July 2006 ( ie. the 1^st day of the hearing) when being questioned by her Counsel.  She said:

“Well, say for example, this morning it ‘s raining and I woke up with the pain last night, the pain was about 5 to 6 degrees.  Well, on average, I was awoken by the pain every night, once every night, but the condition last night was particularly severe.”

Her pain in October 2004 was more or less the same as what she was suffering now about 5 to 6 degrees.

41. The 1^st Plaintiff was then asked to describe her pain when she attended the examination by Dr. Lam on 24 November 2004 when she was later followed by the Defendant’s investigator (whose evidence will be discussed in the later part of this Judgment).

42. The 1^st Plaintiff said that she was not that painful that morning about 2 or 3 degrees or 3 or 4 degrees.  However, after travelling for a certain distance to Dr. Lam’s clinic, the pain aggravated to about 5 or 6 degrees.   She left Dr. Lam’s clinic after the examination with the same degree of pain.  She explained that after walking around the area near Fa Yuen Street to buy things to make preparation for the Christmas for her children, she felt that her left leg was relieved to a great extent and the pain was not that severe.

43. At the end of the 1^st day of the hearing, the 1^st Plaintiff claimed that she almost suffered from a cramp.  After both Counsel finished their questions put on the 1^st Plaintiff, I asked the 1^st Plaintiff to confirm whether she was suffering from various degrees of pain, both back and knee pain ranging from 1 to 2 degrees or even sometimes 9 to 10 degrees.  She answered affirmatively.  She further confirmed that her suffering of the pain started from the accident up to now without any interruption.

The 1^st Plaintiff’s Work as a Teacher

44. After setting out the 1^st Plaintiff’s complaints for her alleged pain all over her body, I would turn to her evidence as to how such pain would affect her work as a teacher.

45. In her witness statement, the 1^st Plaintiff explained that because of the constant pain varying in degrees, it limited her duration in sitting, standing and walking and also affected her sleep.  All these limitations, according to her, would affect her ability to work as a full time teacher effectively as she was required to stand and teach for almost 8 hours a day before the accident.

46. The 1^st Plaintiff gave more detailed explanation as to her work when she gave oral evidence at the assessment hearing.  She said that it was her teaching style to stand or walk around during the lessons.  After she resumed working as a part time teacher, she was no longer as active as before.  She was allowed by the headmaster to take a seat whilst teaching.  She would stand up when the pain did not trouble her.  If the pain came back, she had to sit.  She could not walk as fast as before and could only reach out to those students who were sitting near to the teacher’s table but not those sitting far away. 

47. When the 1^st Plaintiff was asked by her Counsel why she could not cope with teaching full time, she answered that she felt severe pain after 11:00 am and had to leave school at around 12 noon and then when back home.  She followed the advice of the doctor to have more bed rest.  Therefore, she was of the view that it was impossible for her to resume full time job again.  Such reason was not appeared anywhere in her witness statement.

48. In January 2004, the 1^st Plaintiff had tried to resume working as a full time teacher.  At that time, she said she was accustomed to the pain and an offer was made to her by the headmaster for such work when her colleague resigned.  She took up the full time teaching also because she wanted to file an application for promotion in September 2004.  During that period, the 1^st Plaintiff would take bed rest during lunch time every day in the medical room.  However, in late February 2004, she was admitted to hospital because she was overwhelmed by the pain.

49. When being cross examined by the Defendant’s Counsel, the 1^st Plaintiff agreed that strictly speaking, there was no requirement that she must stand all the time when she taught.  Further, she may change posture and sit down from time to time.  However, she maintained that according to her own teaching style, it was practically impossible to sit down when she was giving lecture.

50. The 1^st Plaintiff clarified that as a full time teacher, during the 30 lessons each cycle (consisting of 6 days), normally, she had to teach 2 lessons in the morning each day and 1 in the afternoon.  Each lesson would last for 40 minutes.  Some of the lessons might be double lessons.  Every 2 lessons would have a recess of 20 minutes.  Assuming that the 1^st Plaintiff had to teach double lessons in the morning, she was only required to teach continuously for a total of about 4 hours a day. Even if she had to stand all the time when she was teaching, as pointed out by the Defendant’s Counsel, there is no need for her to stand as many as 8 hours as she claimed in her witness statement.

51. In course of her oral evidence, the 1^st Plaintiff also mentioned another reason why she could not resume working even part time after discharge from hospital in early March 2004.  In her evidence in chief, she said: 

“Well, I was concerned about the progress, the recovery progress, so I consulted the doctor. I was emotionally disturbed.  Well, on many occasions whilst I was walking along the corridor into the classroom, I saw Uncle Lam, the image of Uncle Lam the taxi driver.  He was always smiling at me. I was really scared, so I became aware that I had to call it quits.  I had to give myself rest. I had to allow myself to be totally recovered before I resumed any job, before I resumed teaching.”

52. During the 2^nd day hearing when being questioned by the Defendant’s Counsel why she decided not to resume working full time, she mentioned again the existence of Uncle Lam.  She said that Uncle Lam was tailing her all along and she was really scared.  She did not want to resume teaching in such a condition.  She further elaborated:

“Well, I could frankly tell you that should I resume full time work in September that year, I would be seeing the image of Uncle Lam in the corridor every day, then the situation would only get worse instead of getting better.  That would be no good to the administration of the school, nor would it do good to my students.  It would do no good to my condition and my mental state.”

53. The 1^st Plaintiff never mentioned in her witness statement the hallucinations of seeing Uncle Lam, not to say that such mental state might constitute a factor affecting her ability to resume working as a full time teacher.  While the 1^st Plaintiff was found to display post-traumatic fears and anxiety in relation to the accident, there is simply no concrete expert opinion evidence to support such assertion.

Evidence of Government Doctors

54. One of the arguments put forward by the Defendant’s Counsel against the 1^st Plaintiff is that her subjective complaints for pain were not supported by objective evidence.  Apart from those facts agreed by parties, there are other salient parts of the evidence of the government doctors as appeared in their reports which would shed lights on the 1^st Plaintiff’s alleged injuries.  Apparently, parties have no challenge to such evidence.

55. Dr. K.C. Wong wrote in his report dated 25 September 2003 that when the 1^st Plaintiff was first examined after the traffic accident, there was no meniscal, ligamental injury nor legs neurological deficits detected and x-ray showed no fracture.  At that time, the injuries suffered by the 1^st Plaintiff appeared to be relatively minor.

56. In the report jointly signed by Dr. Cheng and Dr. Fung both of the Department of Orthopaedics & Traumatology of PWH dated 4 June 2004 (“the Joint Report”) (p.68 of the Agreed Bundle), it showed that after the 1^st Plaintiff admitted to PWH on 22 February 2003 for the increased pain for knee, x-ray did not demonstrate any fracture in the knees.  There was symptomatic improvement with conservative management and the 1^st Plaintiff was discharged 3 days later.

57. The 1^st Plaintiff complained low back pain as well as neck pain since 12 March 2003.  X-ray of lumbosacral spine did not reveal any abnormality.  Symptoms improved with physiotherapy and analgesics.  The 1^st Plaintiff complained since 13 August 2003 pain at left buttock and left hip as well as discomfort over the whole left lower limb.  The doctors found no abnormality concerning the hip function and the lower limb neurological status.  X-ray pelvis and hips were also unremarkable.

58. During the period between March to August 2003, the 1^st Plaintiff attended physiotherapy treatment at the Yung Fung Shu Memorial Centre.  From the Physiotherapy Progress Reports, they recorded that in March, there was overall 10 to 20% improvement.  In or about the middle of June 2003, there was an overall of 70 to 80% improvement with maximum walking tolerance of 45 minutes.  By the end of June 2003, it recorded that subjectively, the 1^st Plaintiff got 60 % improvement with occasional back pain and there was no lower limb neurology.  On 13 August 2003, the physiotherapist reported a deterioration of the 1^st Plaintiff’s condition after resuming duty but still 30% better than onset.  The physiotherapist remarked that no neurology was found and the doctor replied that no focal neurological deficit was found also.

59. Since the 1^st Plaintiff continued to have low back pain, she was referred to the pain clinic for further management.  An MRI of the lumbosacral spine was conducted and found that at L5/S1 level, there was posterior left sided annular tear of the circumferential type with associated disc bulge.  The Joint Report commented that however, there was no nerve root compression or prolapsed disc.

60. The 1^st Plaintiff resumed teaching part-time in September 2003 and full-time in January 2004.  She complained increased back pain radiating to the left leg and left sciatica and was re-admitted to PWH on 23 February 2004.  Physical examination showed no lower limb neurological deficits and x-ray on the affected areas did not reveal any obvious abnormality.  Pain was improved but the 1^st Plaintiff required a stick for walking.  She was transferred to Tai Po Hospital for further rehabilitation on 25 February 2004.  The progress was fair and was discharged after 14 days upon her request.

61. The 1^st Plaintiff was then referred to have further physiotherapy at PWH.  Initial assessment by the physiotherapist there on 18 March 2004 found that she needed to walk with an umbrella with a limping gait.  The range of movements of her back were moderately decreased with pain elicited.  However, there was no significant neurological deficit detected.

62. In the meantime, the 1^st Plaintiff consulted a clinical psychologist at the Pain Management Centre of the Alice Ho Miu Ling Nethersole Hospital.  This part of the evidence has been agreed by parties and dealt with at paragraph 30 above.  While the 1^st Plaintiff was recommended to participate in a pain management program aiming to boost her pain and mood management skills in future, there is no evidence to show whether the 1^st Plaintiff eventually participated in such pain management program. 

63. Another MRI was conducted on 8 August 2004 on the cervical spine.  The report (page 101 of the Agreed Bundle) showed that there was developmental spinal stenosis aggravated by focal OPLL at C2/3 & C3/4 levels without definite cord or nerve root compression.

64. After completion of 24 sessions of physiotherapy treatments, the physiotherapist in his report (page 102 of the Agreed Bundle) stated that the 1^st Plaintiff had satisfactory improvement in her trunk movements.  The functional activities like walking, standing and sitting endurance improved so that she was able to walk for 30 minutes, stand for 30 minutes and sit for 20 minutes continuously.  However, the 1^st Plaintiff still complained to have severe back pain and need to walk with an umbrella.  At the same time, the physiotherapist commented that non-organic signs depicted by Waddell’s signs were positive (Waddell’s signs will be discussed further in the latter part of this Judgment on the expert opinion).

65. A discogram was conducted at PWH on 27 August 2004.  It showed that there was L5/S1 symptomatic annular tear, incidental L4/5 left posterolateral tear with focal symptom different from original symptom on provocation.

66. During the cross examination of the 1^st Plaintiff, she confirmed that she now only needed to attend follow-up treatment at the neurosurgical department of PWH once a year.

Surveillance Evidence

67. To verify the subjective complaint of the 1^st Plaintiff on the alleged pain, the Defendant has instructed an investigator Truth Seeker to conduct surveillance on the 1^st Plaintiff on 3 occasions: 24 November 2004 (immediately after the 1^st Plaintiff was examined by the Defendant’s expert Dr. Lam), 14 December 2004 and 4 January 2005.

68. The investigator who conducted the surveillance prepared a report and a video tape was produced at the assessment hearing.  It is not in dispute as to what the surveillance evidence shows.  The 1^st Plaintiff’s Counsel tried to argue that such tape has no evidential value which I must disagree.

69. I have carefully watched through the video tape which showed the 1^st Plaintiff walking in a normal gait without any obvious difficulty in the Mongkok area after she was examined by Dr. Lam.   She walked relatively freely and naturally and occasionally bending her waist or kneeling down to pick up goods displayed on the lower parts of the goods-shelves of the shops.  She walked continuously for about 45 minutes before she got on a mini-van going home.  She did not have any apparent difficulty in getting on and off the mini-van. 

70. Although the 1^st Plaintiff carried the umbrella in her left hand, apparently she did not really require using the umbrella as a walking aid to help her walking.  Definitely, she did not use the umbrella for any weight-bearing.  Sometime, the umbrella was just hanging on her arm.  On the other 2 days, the 1^st Plaintiff was not seen to carry an umbrella.

71. I agree with the Defendant’s Counsel that the surveillance evidence showed quite differently from what the 1^st Plaintiff complained on different occasions.

72. When the 1^st Plaintiff was examined by her own expert Dr. Au in June 2004, she complained lower back pain 24 hours a day.  The pain was stabbing in character.  There was also pain and numbness over the entire left leg again 24 hours a day.  She felt dizziness and general physical weakness.    She also complained that prolonged sitting for 30 minutes causes increase in back pain and nausea.  Standing for 10 minutes and walking for 20 minutes causes back pain.  Travelling on bus caused nausea.  Further, 1^st Plaintiff was seen by Dr. Au walking into his office with an umbrella on her right hand side.  She walked slowly and cautiously by holding onto furniture.  She also supported her back with her left hand.

73. On the hand, when the 1^st Plaintiff was interviewed by Dr. Lam in November 2004, she carried an umbrella at the left side and walked in a mild limping gait.  She told Dr. Lam that she needed an umbrella for walking and could only walk slowly for 20 minutes.  Her left foot would be painful when walking downstairs and better if walking upstairs. 

74. The surveillance evidence clearly showed that the 1^st Plaintiff was walking in a normal gait with no apparent difficulty in walking upstairs or downstairs.  She could walk normally and freely and sometimes faster than normal.  Definitely, she was not walking slowly as claimed.  I also agree with Dr. Lam’s observation that there was no apparent restriction in her walking tolerance and the 1^st Plaintiff did not use the umbrella as a walking aid and did not use it for actual weight support.  I accept the reasoning of Dr. Lam when being cross-examined by the 1^st Plaintiff’s Counsel:

“a person may pretend to be more painful, or more disabled than he is, but I don’t think it’s possible for someone to pretend that he’s better than he is.  So if Miss Chan could walk like that in the recordings, I think it’s rational to believe that she could walk so the rest of the time.”

Expert Opinion

75. Dr Au examined the 1^st Plaintiff on 2 occasions: 12 June 2004 and 14 November 2005. 

76. In the June report, Dr. Au was of the opinion that the 1^st Plaintiff sustained contusion injury to both of her knees in the accident and later developed lower back pain. His diagnoses were: (a) lower back pain, status post back injury; (b) lumbar spondylosis; and (c) left knee pain, status post left knee injury.  In his opinion, the lower back pain was compatible with the injury sustained during the accident.  He further opined that the pain and numbness over the left leg may imply nerve root irritation.  The MRI investigation revealed annular tear and disc bulge on left side of L5/S1 with no nerve root compression.  He concluded that the 1^st Plaintiff probably had sustained prolapsed disc at L5/S1 during the accident and such prolapsed disc resolved partially with conservation treatment.

77.  On the other hand, Dr. Au concluded that the left knee pain was compatible with the injury sustained at the accident but the left ankle pain which only started in February 2004 was unrelated to the accident.

78. Dr Au was of the opinion that the 1^st Plaintiff had reached maximum medical improvement.  There would be on and off exacerbation of back pain, which may be eased by rest and painkillers.  He assessed her permanent impairment at 8% (3% for muscle wasting of left leg and 5% for the back injury).  He considered that full time teaching job was too strenuous for the 1^st Plaintiff whilst part-time teaching was fit for her condition.

79. It is worth-noting that when Dr. Au first examined the 1^st Plaintiff, he had already found 2 non-organic signs: the straight leg raising in sitting position is better than in supine position and the rotation of shoulder and pelvis in the same plane caused increase in back pain.  However, he concluded that less than 3 non-organic signs did not carry any clinical significance.

80. When the 1^st Plaintiff was re-examined by Dr. Au in November 2005, he observed that she walked normally and independently without any walking aid.  Dr. Au had also the chance to consider the surveillance tape.  He found that there was definite improvement of the 1^st Plaintiff’s conditions since the last examination.  Despite the same, he maintained his previous assessment and opinion.  He tried to explain the improvement shown in the re-examination and the surveillance tape was due to better motivation.

81. The Defendant’s expert Dr. Lam examined the 1^st Plaintiff on 24 November 2004 (about 5 months after Dr. Au’s 1^st examination and about 1 year before Dr. Au’s 2^nd examination).  In respect of the bilateral knee pain, Dr. Lam took the view that there was no residual abnormality other than the local tenderness at the anterior knee.  The knee contusion should be recovered well within a few weeks.  Further, the discrepancy in muscle girth between both sides was very minimal and better than that found by Dr. Au.  He concluded that there was no rateable impairment.

82. In respect of the back injury, Dr. Lam was of the opinion that apparently, the initial back injury was not a severe one and does not match well with the later severity of the symptoms complained by the 1^st Plaintiff.  In his view, if a back injury could result in such persistent and disabling pain, the initial insult must be very marked.  Further, a back injury without obvious radiculopathy or bony damage should have much better recovery than what the Plaintiff presented at that time.  Dr. Lam agreed with Dr. Au that the back injury resulted in 5% impairment.

83. Dr. Lam concluded that the 1^st Plaintiff was capable to perform part-time teaching duties and would be able to perform full time teaching when there was further reduction in pain.

84. After watching the surveillance tape, Dr. Lam in his supplemental report stated that the 1^st Plaintiff’s performance in the surveillance tape was in great contrast to her performance during the medical examination.    He found at least 3 non-organic signs which indicated that the 1^st Plaintiff had exaggerated her disabilities.  In light of the surveillance evidence, Dr. Lam took the view that the 1^st Plaintiff should be able to do full time teaching.  At trial, he clarified that the she should be able to do full time teaching with effect from spring 2004. 

85. The main and importance difference in the opinion of the respective experts must be the true extent of the back pain as complained by the 1^st Plaintiff.  The determination of this issue will at the same time affect whether the 1^st Plaintiff could resume working as a full time teacher.

86. I have carefully considered the expert reports of both Dr. Au and Dr. Lam and heard their oral evidence in the witness box.  Taking an overall view of their respective evidence, on balance, I prefer the evidence of Dr. Lam than Dr. Au for the reasons to be discussed in the following paragraphs.  I agree with the Defendant’s Counsel that Dr. Au’s evidence was subjective and speculative.  His explanations and justifications for the cause of the back pain by the alleged prolapsed disc and the improvement of the 1^st Plaintiff’s movements as captured by the surveillance tape as better motivation are both unconvincing and not supported by objective evidence.  When being cross-examined by the Defendant’s Counsel on the weak point of his opinion, Dr. Au became defensive and tried to brush through the weaknesses. 

87. In light of the surveillance evidence, whilst Dr. Au on one hand accepted that there was definite improvement of the conditions of the 1^st Plaintiff, he maintained his previous assessment and took the view that there was no improvement on her body impairment.  Instead, Dr. Au tried to explain such improvement by “better motivation and more training by engaging in a more active life”.  Better motivation, as with the complaint of pain, is in my view a subjective element.  Unless the 1^st Plaintiff had discussed with Dr. Au during the re-examination the reason for such improvement (which was not mentioned at all in the supplemental report), it must be either the subjective view of Dr. Au or speculative.  In any event, such explanation did not sit well with the previous opinion of Dr. Au that when he first examined the 1^st Plaintiff in June 2004, the 1^st Plaintiff had reached “maximum medical improvement”.

88. One may remember from the evidence of the 1^st Plaintiff that when she walked into the clinic of Dr. Lam that morning, she walked slowly with a mild limping gait carrying an umbrella in her left hand.  She said when she left the clinic, her pain was about 5 to 6 degrees.  It is difficult for any reasonable person to imagine how her pain had suddenly gone away so that she could walk in normal pace and gait without difficulty because of “better motivation” when she was observed by the investigator immediately after she left Dr. Lam’s clinic.  If “better motivation” was as what Dr. Au explained as psychological rather than physical, it would be more difficult to explain why the 1^st Plaintiff would be “better motivated” by doing Christmas shopping.

89. Dr. Au tried to explain the severe back pain of the 1^st Plaintiff by his suggestion that she suffered from a disc prolapse resulted from the accident.  According to Dr. Au, the 1^st Plaintiff’s condition deteriorated and became symptomatic in August 2003 when she complained about the left sciatica (about 6 months after the accident).  It then resolved and recovered to the extent that it was no longer evident on the MRI done in December 2003.

90. From the discogram done in August 2004, there is no doubt that the 1^st Plaintiff suffered from an annular tear at L5/S1 which caused her back pain.  Dr. Lam readily accepted that the annular tear may cause the 1^st Plaintiff to have some back pain but not as severe as complained by her.  However, the suggestion of a prolapsed disc by Dr. Au is simply not supported by objective evidence.   As mentioned in paragraph 62 above, the orthopaedic surgeons of the PWH found no nerve root compression or prolapsed disc from the MRI.  Dr. Au accepted that findings.  All along, the government doctors found no neurological deficit in the 1^st Plaintiff’s lower limbs.  Further, if the prolapsed disc had resolved partially in December 2003, it is difficult to explain why the 1^st Plaintiff complained pain with considerable degree all the time without interruption.  I must say that Dr. Au’s suggestion of a prolapsed disc in this case is too speculative.  If there was such a possibility, it would be a remote possibility as commented by Dr. Lam.

Credibility of the Evidence of the 1^st Plaintiff

91. I then come to my assessment of the credibility of the 1^st Plaintiff.  In this connection, I have carefully heard her evidence given during the assessment hearing.  I have also observed her gesture and demeanour during the course of her evidence.

92. The 1^st Plaintiff described her pain in the range of 5 to 6 degrees when she gave evidence on the 1^st day of hearing and she had taken a painkiller (in fact, she said that she had to take painkiller when the pain went up to 7 to 8 degrees).  I observed that that she walked slowly out to the witness box with the umbrella in her left hand.  She had to change posture during sitting and put her left hand to her back occasionally.  She claimed to suffer more or less the same degree of pain when she was examined by Dr. Lam in November 2004.  As explained above, her performance at Dr. Lam’s clinic and in court was not compatible with her performance in the surveillance tape.    She agreed with Dr. Au that her improvement was due to better motivation.  As I find above, I do not accept such explanation.   Further, if she could be better motivated by doing Christmas shopping and walking around Mongkok area and could then perform like a normal person, as a devoted and conscientious teacher, one would expect that she would be better motivated by teaching at school.

93. As can be seen from the above, the 1^st Plaintiff gave inconsistent evidence during hearing.  Firstly, the 1^st Plaintiff did not need to stand continuously for 8 hours as stated in her witness statement. The reasons why she could not teach full time as testified by her at the assessment hearing were not stated in her witness statement (see paragraph 50 above).  At various stages, she was defensive and evasive.  When she was questioned about the use of the umbrella as a walking stick, she said she only used it when the pain was serious.  This was not what she told Dr. Lam.  Further, according to the medical reports, the alleged left sciatica only emerged about 6 months after the accident.  However, the 1^st Plaintiff maintained that she had told the doctor about the pain every time she attended the follow up treatments.  Such allegation was not supported by the contemporaneous medical reports and I cannot see why the attending doctors did not state in the reports such complaint if the 1^st Plaintiff did mention the same as alleged.  When being cross examined by Defendant’s Counsel, she was too eager to answer more than what she was asked.

94. In assessing the credibility of the 1^st Plaintiff, I also take into account of the presence of non-organic signs during the medical examinations.  One of the tests for non-organic signs is the Waddell’s test.  Dr. Lam explained in his supplemental report the Waddell’s test which Dr. Au agreed in his oral evidence as follows:

“There are many tests for exaggeration, including the commonly employed Waddell’s test for non-organic signs. These movements are simulation test, which give the patient an impression that a particular movement is related to the back, but in fact not. If obvious back pain is described in these tests, some exaggeration or functional overly is present. Examples of these tests include:

Superficial tenderness: widespread tenderness on light pinch to skin;

Non-Anatomic Tenderness: widespread tenderness which is not localized to any specific structures;

Axial Loading: light downward pressure applied on the top of the patient’s head giving increased lower back pain;

Simulated Rotation: reporting increased pain when rotating the pelvis and shoulders simultaneously;

Distraction Tests: retesting of a positive finding in a way that the patient does not recognize or expect, eg. perform a straight leg raising with patient in the supine position and seated;

Regional Disturbances: motor weakness or sensory loss with divergence from accepted neuroanatomy;

Overreaction: disproportionate response such as verbalizations, facial expressions, collapsing etc. can be indicative of symptom magnification”

95. The 1^st Plaintiff was found with positive non-organic signs depicted by the Waddell’s signs as early as June 2004 when she was examined by Dr. Au.  Dr. Au found 2 non-organic signs:

(a) SLR (straight leg raising) in the sitting position was better the SLR in the supine position; and

(b) Rotation of shoulder and pelvis in same plane caused increase in back pain.

96. The physiotherapist of PWH mentioned in his report dated 27 August 2004 that positive non-organic signs were found though it is not specified which signs were noted.

97. Dr. Lam commented that in the 1^st Plaintiff’s case, there were more than 3 positive responses.  Dr. Lam explained in his evidence in chief that there were 4 non-organic signs ie. simulated rotation, distraction tests, regional disturbances and overreaction.  Dr. Au found the first 2 non-organic signs already.  The 3^rd one was mentioned in Dr. Au’s report as general sensory loss.  The 4^th one was shown in Dr. Au and Dr. Lam’s evidence.  The 1^st Plaintiff complained lower back pain as well as pain and numbness over the entire left leg 24 hours a day.  Dr. Au admitted that it is most improbable that a person will experience constant pain and agreed that such complaints amount to overreaction (disproportionate verbalization of the pain).  Dr. Lam also commented that the complaints of the 1^st Plaintiff all over her body was disproportional to the objective medical evidence.

98. Dr. Au stated in his report that less than 3 non-organic signs do no carry any clinical significance.  I find such view arbitrary.  In my judgment, any findings of positive non-organic signs indicate the possibility of symptoms magnification and raise the suspicion of exaggeration.  In this connection, I am more inclined to accept Dr. Lam’s opinion.  The 1^st Plaintiff was found to have a significant number of non-organic signs which suggest a high possibility of symptoms magnification.

99. For all the above reasons, I conclude that the 1^st Plaintiff’s evidence on the extent of her disabilities in particular of her complaint of severe back pain is not credible and genuine.  She has exaggerated her back pain.

Factual Findings

100. As a matter of facts, I find that as a result of the accident, the 1^st Plaintiff suffered from a contusion injury to her knee and back.  The knee injury should be recovered well within a few weeks with no residual abnormality.  I do not accept the opinion of Dr. Au that the muscle wasting of the left leg is significant enough to cause any material residual disability. 

101. In respect of the back problem, the annular tear of L5/S1 as revealed in the discogram was caused by the accident.  That is the cause of the back pain of the 1^st Plaintiff.  I reject the suggestion of Dr. Au that the 1^st Plaintiff suffered from a prolapsed disc which was partially recovered by December 2004.  The present complaint of severe and persistent back pain alleged by the 1^st Plaintiff is not genuine and she has exaggerated her pain. In my judgment, the 1^st Plaintiff should be able to walk stand and sit normally and should have no much difficulty in leading a normal life by the time when she was examined by Dr. Lam in November 2004.   If there was any residual pain, the same should be rather minor which would not materially affect her ability in working as a full time teacher.

Quantum of Damages

Pain, Suffering and Loss of Amenities

102. In the final written submission of the 1^st Plaintiff’s Counsel, he referred to the following cases and claimed a sum of $360,000 under this head:

(a) Tsoi Kwong Ming v. Green Valley Landfill Ltd HCPI 407/1997 (30/9/1999)- agreed at $560,000;

(b) Luk Yee Lam v Orasa Livasiri HCPI 394/2002 (27/11/ 2003)- $400,000;

(c) San-To, Po Yuk Hitler v Wing Kwong Painting Company Limited HCPI 387/2002 (6/2/2004)-$350,000;

(d) Lai Kam Wah v Wing & Kwong Company Limited HCPI 1131/2002 (28/11/2003)-$350,000;

(e) Li Fat Tsang v Aquality Engineering Co. Ltd  HCPI 558/2000 (15/7/2002)- $300,000; and

(f) Law King Sang v. Law Yin Sang & Ors HCPI 923/1995 (19/2/1997)- $375,000.

103. On the other hand, the Defendant’s Counsel cited the following cases and argued that the appropriate award should be $170,000:

(a) Chu Chung Wah v Ng Tung Pak, HCPI547/2003 (15/12/2004)- $200,000 reduced to $160,000 because of pre-existing condition;

(b) Lam Wa Lai v Starlong Development Ltd, DCPI624/2003 (14/4/2005)- $170,000;

(c) Shea Lai Chuen v Federal Express Pacific Inc, HCPI1025/2003 (26/6/2006)- $250,000.

104. Taking into account of the extent of the injuries and disabilities of the 1^st Plaintiff as held in the above, I consider that the cases cited by the Defendant are more comparable with the 1^st Plaintiff’s condition and those cases cited by the 1^st Plaintiff are related to more serious back injuries with a prolapsed disc complicated by psychological and psychiatric problems. I have also considered another decision in Chan Kwei Duen v. East Country Company Ltd., DCPI665/2005 (3/2/2006) - $200,000.

105. Having considered the above, I assess the amount of damages under this head at $200,000.

Pre-trial Loss of Earnings

106. There is no dispute that the 1^st Plaintiff earned a monthly salary of $46,810 as a full time teacher which was revised down to $45,375 per month if there was no accident.  At the same time, she was entitled to 6% contribution from her employer for Provident Fund.

107. The 1^st Plaintiff received full sick leave pay from the date of accident up to 31 August 2003 and made no claim for this period.

108. From 1 September 2003 to 11 January 2004, the 1^st Plaintiff worked as part-time teacher and received 40% of a full time pay.  The Defendant agreed with the 1^st Plaintiff’s claim for partial loss of earnings during this period in the sum of $129,324.24 ($119,084.64 + 10,239.60).

109. Starting from 12 January 2004, the 1^st Plaintiff worked as a full time teacher and received full pay of her salary.  After she was admitted to hospital on 23 February 2004, the 1^st Plaintiff received full sick leave pay until the end of February.  Thus, no claim for loss of earnings was made for this period.

110. From 1 March 2004 to 31 August 2005, the 1^st Plaintiff was unemployed and claimed a total loss of earnings in the sum of $867,663.  After then, the 1^st Plaintiff returned to work part-time receiving 30% of a GM teacher’s salary.  She claimed partial loss of earnings in the sum of $436,289.87 up to 28 September 2006.

111. While the 1^st Plaintiff was granted sick leave since February 2004 up to 31 August 2005, it does not mean that the Court must accept the same without considering their reasonableness in light of the available medical evidence.  The Court of Appeal held in Choy Wai Chung v Chun Woo Construction & Engineering Co Ltd, CACV172/2004 (15/7/2005):

“It was for the judge to decide whether on the evidence the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work. Obviously in doing so the judge must have regard to the medical evidence. Nevertheless, the judge cannot be bound by the mere issuance of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

112. Dr. Au considered that the appropriate sick leave would be up to August 2004 when her condition was stable.  In fact, when Dr. Au examined the 1^st Plaintiff in June 2004, he took the view that the 1^st Plaintiff’s condition had reached her maximum level of improvement and could resume working as a part time teacher by then.  The 1^st Plaintiff mentioned seeing “Uncle Lam” as a result of which she decided not to resume working part-time or full time (see paragraphs 54-55 above).  However, judging from the surveillance evidence, even accepting that the 1^st Plaintiff might have residual back pain, the same should not prevent her from working full time by the end of 2004.

113. To the best that I can to assess a fair and reasonable damages under this head to compensate the 1^st Plaintiff’s loss when her claim for severe back pain causing her inability to resume working as a teacher was found to be not genuine, I accept the Defendant’s submission that full loss of earnings would be awarded to the 1^st Plaintiff from March to August 2004. Starting from the new term of school year from September to December 2004, she should be able to work part time.  Thereafter, from January 2005, the 1^st Plaintiff could resume working full time and no award will be made to any loss of earnings thereafter.

114. Total loss of earnings from March to August 2004 is assessed at: $45,375 x 106% x 6 months = $288,585     

Partial loss of earnings from September to December 2004:

$45,375 x 106% x 60% x 4 months = $115,434

115. Thus, the Pre-trial Loss of Earnings is assessed at a total sum of $533,343.24.

Future Loss of Earnings/Loss of Earning Capacity

116. Since I find that the 1^st Plaintiff should be able to work as a full time teacher from January 2005, I make no award for future loss of earnings.

117. Given the residual back pain which may be exacerbated occasionally, I agree that damages for loss of earning capacity are the appropriate remedy for the 1^st Plaintiff to compensate her disadvantage in the labour market as she may have to take further sick leave in the future which exceeds her entitlement under the employment contract.  The 1^st Plaintiff may run the risk in open market to look for a similar employment in the future when there may not be such an accommodating principal and supportive colleague.  In this respect, Mr. Lam for the Defendant suggested a lump sum of $100,000. While Mr. Fong for the 1^st Plaintiff accepted that the multiplier/multiplicand approach is not appropriate in assessing damages under this head, he submitted that a sum equivalent to 3-year annual income of the 1^st Plaintiff should be awarded.

118. In my view, bearing in mind the residual back pain of the 1^st Plaintiff is not serious and she decided not to undergo future operation, I award a lump sum of $150,000 which amount to approximately 3-month salary plus provident fund contribution.  

Other Special Damages

119. The following items of special damages are agreed by parties:

120. The Defendant disputed the reasonableness of the bonesetter/herbal medicine expenses, tonic food and travelling expenses.  Apart from travelling expenses, the Defendant did not cross examine the 1^st Plaintiff on other claims and they have not adduced any contradictory evidence.

121. Regarding the bonesetter/herbal medicine expenses, the 1^st Plaintiff originally claimed a sum of $11,570.  At the assessment hearing, the 1^st Plaintiff’s Counsel sought to amend the Annex 3 to the witness statement and particularized a total sum of $12,280.  However, Counsel for the 1^st Plaintiff put a sum of $14,219 in his written opening and final submissions. No explanation was given how this sum was calculated.  Only 2 certificates were produced to show that the 1^st Plaintiff attended the Saints Lam Traditional Chinese Herbal Medicine Clinic on 27 February 2003 and 2 August 2003.  No amount was stated in such certificate.

122. The burden of proof is on the 1^st Plaintiff.  Without giving a detailed breakdown of the expenses incurred or proper explanation as to how such expenses were incurred in her witness statement not to say that no sufficient supporting documents were disclosed, the 1^st Plaintiff failed her duty to prove the claims.

123. The Defendant conceded a sum of $3,000 for the bonesetter and herbal medicine expenses.  No comment was made by the Plaintiff’s Counsel in his submission in reply.  I accept such sum for the purpose of this assessment.

124. For tonic food, the 1^st Plaintiff estimated a sum of $20,000.  She said that on advice of the Chinese medical doctor, she took various food regularly.  No mention as to what kind of tonic food was taken.  In absence of further particulars and supporting documents, the Defendant conceded a sum of $5,000.

125. Taking into account of the sick leave period from the date of accident (19 February 2003) to August 2004 (when the discogram was conducted) (over a period of about 18 months), I award a lump sum of $10,000 which I consider reasonable.

126. The 1^st Plaintiff originally claimed a sum of $85,770 in her witness statement as the travelling expenses which were revised to $87,468.20 at the assessment hearing by her Counsel.  In the closing submission, her Counsel further revised the claims to $62,378.20 deducting those travelling costs with her son.

127. Under this claim, a total sum of $25,090 was incurred for taxi fares in travelling from home to hospital/clinic to attend treatments.  I agree with the Defendant’s Counsel that the sums of $1,440 for taxi fares in going back to school to prepare lessons and $240 for attending eye clinic should be deducted leaving a balance of $23,410.

128. In the revised Annex 3 item 2, it referred to the travelling expenses for trips to school for work in the sum of $22,560 covering the period from September 2003 to February 2004 only.  No particular was given by the 1^st Plaintiff for the rest of her claims.  The Defendant’s Counsel argued that the 1^st Plaintiff would have to incur some travelling expenses to go back to school even if there was no accident but no credit was given.  Further, before the accident, the 1^st Plaintiff admitted that she went to school by taxi once or twice a week.

129. The 1^st Plaintiff admitted that since September 2005, she would take a bus and a minibus home.  In fact, during the surveillance, she was seen taking mini-bus home in December 2004.  So the 1^st Plaintiff could take public transport to and from school.

130. I consider that for the first 2 months when the 1^st Plaintiff resumed working part-time, as a result of the back pain, it was reasonable for her to take taxi to school and back home.  The additional taxi fare per week would be allowed at $1,440 ($240 x 2 x 3) and a sum of $11,520 was awarded under this head.  The total travelling expenses are thus allowed at $34,930.

Future Medical Expenses

131. The 1^st Plaintiff claimed a sum of $37,440 ($60 x 52 x 12) for future medical expense on the basis that she had to attend out-patient treatments on a regular basis to ease off her pain for about once per week.

132. In her evidence, the 1^st Plaintiff no longer attended physiotherapy at present and she only needs to attend neurosurgery treatment about once a year.  There is no evidential basis for 1^st Plaintiff to support such a claim for weekly treatment.

133. The Defendant conceded a sum of $5,000 for damages under this head on the assumption that the 1^st Plaintiff may have to attend treatments if the back pain exacerbates occasionally.  I find the same reasonable and award such claim as conceded.

Summary of Awards

134. In conclusion, the following damages are awarded to the 1^st Plaintiff:

Interest

135. There will be interest on the damages for pain, suffering and loss of amenities at 2% per annum from the date of service of the writ until judgment.  Interest will also be awarded for the pre-trial loss of earnings and the special damages at half judgment rate from the date of accident to the date of judgment.

Costs

136. I make a costs order nisi that costs of the assessment of damages in this action be to the 1^st Plaintiff to be taxed if not agreed.