CHAU FUNG YEE v. HOSPITAL AUTHORITY - TAI PO HOSPITAL

HCPI 876/2015

[2018] HKCFI 1589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 876 OF 2015

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J U D G M E N T

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1.  The plaintiff Madam Chau (“P”) was employed by the defendant (“D”) as Workman II in D’s Tai Po Hospital (“TPH”) since 2 July 1998. P said she was injured at work on 31 January 2013.

2.  P said that on 31 January 2013 at about 5:15 pm when she was working in the Catering Department of TPH, she suffered an accident at work by tripping over an unlocked and exposed caster of a meal-tray trolley (“the Accident”).  She complained in this action that P had failed to provide her with a safe place of work and a safe system of work.

3.  D denies that P had tripped over the caster or that the Accident had taken place at all. 

The issues

4.  The issues are:

(1)  whether P had tripped over the unlocked and exposed caster of a meal-tray trolley on 31 January 2013 at about 5:15 pm at the Catering Department of TPH; and

(2)  if so, whether D, as P’s employer, had failed in its duty of care owed to P thereby causing P to suffer the Accident.

The background

5.  The following are undisputed and are referred to in the closing submissions of Mr Li, counsel for P.  P began working for D at TPH on 2 July 1998.  Prior to the Accident, P had suffered another accident at work on 27 June 2000 at TPH.  Owing to that accident, she was granted sick leave until 30 September 2001 and further sick leave from time to time until 8 January 2002.  She settled her compensation case with D in August 2002.  After that, she took sick leave and annual leave from time to time from 2 April 2003 to 31 July 2007. Her sick leave from 15 August 2003 was with half pay and from 22 February 2004 no pay. 

6.  P resumed work on 1 August 2007 at the Catering Department of TPH.  She was seconded to the Accident & Emergency Department (“AED”) of Alice Ho Miu Ling Nethersole Hospital (“AHNH”) between August 2009 and April 2010.  On 9 April 2010 her secondment was changed to the Volunteer and Community Development Department of AHNH.  From October 2011 to June 2012, her secondment changed again to the Occupational Therapy Department of AHNH. 

7.  She returned to the Catering Department of TPH on 25 September 2012 and was placed on trial or testing at this department.  She said at the trial of this action that despite she was on testing, she did all that her superiors had instructed her.  If a task was beyond her ability, she would seek help from her colleagues.

P’s evidence on how did the Accident take place

8.  P gave evidence for herself on how the Accident happened.  She did not call any other witness on this issue.  Her version of the Accident is simple and straightforward.  She adopted her witness statement made on 13 September 2016.  In the afternoon of 31 January 2013, she was working at the Catering Department of TPH.  She was assigned to assist the colleague in position “C3”.

9.  Different working positions in the Catering Department carried different duties and were given different numberings or designations.  The workman at position “C3” had the duties to take out the bowls and plates of food from a food-trolley and place them onto meal-trays that were being moved by conveyor belts as per the order called out by the workman at the head of the conveyor belt table.

10.  In the afternoon of 31 January 2013, P was performing the C3 position duties.  At about 5:15 pm when she was taking bowls and plates of veggie or fruit puree from the food-trolley to the meal-plates on the conveyer belts, she was asked by her supervisor Chef II to go and pull a food-trolley from one location to another (which was also part of the “C3” duties).  The repositioning of the food-trolley was to facilitate the work of another colleague.  P then turned around and walked towards the food-trolley, but she tripped over the exposed or protruded left rear caster of a meal-tray trolley and fell face down.  Her elbows, knees and low back thus sustained tenderness.  Her waist and lower half of her body were numb, painful and lack of strength.  She wanted to get up but could not be seated.  Her colleagues then came over to help her get up.  The ambulance men then came and took her to the AED of AHNH. 

11.  P provided a sketch showing the scene of the Accident (P. 130).  There were two meal-tray trolleys placed on her left hand side.  The food-trolley that she worked with was on her right.  The meal-tray trolley with the left rear caster that P had allegedly tripped over was the outer one which was furthest away from P’s original location (and closest to the bottom of the sketch).  D produced a photo of the two meal-tray trolleys (P. 295) but P said that the inner trolley was not positioned immediately adjacent to the conveyor belt table and was at some distance from it. 

12.  P also made a statement dated 14 February 2013 to TPH on the Accident (“P. 138”).  She said her colleagues were pressuring her to go and pull a food-trolley over.  She then turned around to go but tripped over the protruded lock of the caster of the meal-tray trolley which was behind her.  She fell and injured as a result.

13.  She was diagnosed by AHNH to have suffered waist and back injury and contusion to her knees.  She also sustained tenderness to her elbows, knees and lower back.  She was hospitalized in the orthopaedics ward and discharged on 7 February 2013.

14.  She said she had continuous back pain after the accident.  When the pain was serious, she had to take pain killing medicine.  But the medicine was not too effective and could result in stomach discomfort.  Her back pain also affected her sleep.  She often had less than 3 hours of sleep.  The pain also worsened her apatite.  Her memory had become poor.  Her mood was depressed and was easily excitable.  She became angry and anxious.  She could not stand noise and thus avoided social activities.

15.  She made her witness statement on 13 September 2016.  She said at the end of the statement that despite the various treatments she received, she still had various body problems.  The problems include pain, stiffness and lack of strength in her waist muscle.  When the problem got serious, she had to take pain killing medicine or apply hot pad. The pain killing medicine occasionally caused discomfort in her stomach.  The waist pain also limited her ability to turn and prevented her from bending her waist.  The back pain also affected her sleep.  She needed sleeping pills to go to sleep.  Her mood was depressed and was easily excitable and became angry and anxious.  Her depression worsened.  She needed long term psychiatric treatment.  She could not carry weight for over 10 seconds.  After her knees were injured, they would be painful upon weight bearing.  She needed support when walking or going up or down stairs.  Her legs were prone to have cramps and occasionally caused urination.  Her legs would be painful after standing for over 5 to 10 minutes.  Her legs would be numb and ache after sitting for 15 minutes and she had to change posture often.  All these problems affected her relationship with others and she avoided social activities.

D’s evidence that the Accident had not taken place

16.  D claims that the Accident had not happened at all.  D called two witnesses: Madam Ng Shun Ling, Workman II and Mr. Sze Wai Chak, Chef I, both of the Catering Department of TPH. 

17.  Madam Ng was then working at the head of the conveyor belt table.  The two meal-tray trolleys that P referred to were placed on her right and by the side of the head of the conveyor belt table.  Her job was to put the meal-trays one by one onto the conveyor belts, place the chopsticks and spoons and the appropriate meal-tickets of the patients on them.  She had a microphone affixed next to her mouth and a small pile of meal-trays in front of her.  When she put the meal-trays onto the conveyor belts, she also called out the type of meal prescribed in the meal-ticket for each tray.  Her verbal direction on the type of meal for each tray as amplified by the microphone system was to facilitate her colleagues in putting the correct types of food onto the trays.  The trays with food and meal-tickets would then be collected by another colleague at the end of the conveyor belts and put inside a food-trolley.  The food-trolleys with meal-trays of food would be sent to different wards for the patients.  When Madam Ng used up the pile of meal-trays in front of her, she would fetch another pile from one of the two meal-tray trolleys on her right.

18.  At the material time, P was assigned to assist another colleague, Madam Chung Yuk Fung to discharge the “C3” duties.  She was standing in the space between the two meal-tray trolleys on her left and the food-trolley on her right.  The space was about 4 feet wide.  She was facing the side of the conveyor belt table and on Madam Ng’s right at about 4 to 5 feet away (P. 130).  The table top was at the level of her waist and about 2 feet wide.  She was taking the bowls and plates of veggie or fruit puree from the food-trolley on her right and placing them onto the appropriate meal-trays on the conveyor belts in front of her.  She did so according to Madam Ng’s verbal direction on the type of food to be placed in the trays. 

19.  At about 5:15 pm, P was asked by Chef II to pull a food-trolley from one location to another to facilitate her colleague to put the meal-trays with food into the trolley for distribution to the wards.  P did not respond immediately to the instruction. Another colleague, Madam Choy Shek Fung then repeated to her what Chef II had said. Madam Ng then saw her turned round and started to walk.  But she suddenly bent her left leg, knelt down on her right knee, spread her arms forward and fell down slowly on the floor with her face down.  In the course of her motion, she did not come into contact with any object.

20.  Madam Ng added at the trial that when P fell down, she did not knock against or trip over anything.  She just lay down (on her stomach) in the middle of the space between the two meal-tray trolleys on one side and the food-trolley on the other.  She took 3 to 4 seconds to completely land on the floor.  Madam Ng thought that she did not lose her consciousness. 

21.  Since there was only the conveyor belt table between Madam Ng and P and the table was only up to Madam Ng’s waist, Madam Ng had the whole of P’s person in her view.  P’s action took Madam Ng by surprise as Madam Ng did not know why P had lain down slowly.  She thought that P had suffered a fall.  She shouted loudly in response.  Her shout was amplified by the microphone she was wearing.  Her supervisor Mr Sze, who was working in his office inside the department, heard her shout and rushed out to see what happened.  When he saw P lying on the floor, he immediately called for the ambulance.  The ambulance men then took P to the AEF of AHNH for treatment (P. 144, §§2 to 5).  

22.  Madam Ng made a written report of what she saw on the same day when the Accident happened (P. 343). Her report said that she saw P at a location ahead of the food-trolley.  P turned around, slowly knelt down, crawled forward and lay on the floor and without touching anything.  She then shouted and Mr Sze then ran out from the office.  He consoled P who lay on the floor.  The ambulance came and sent P to AED for treatment.   

23.  Madam Ng also produced a photo illustrating P’s position after she had fallen down (P. 149 and exhibit 1).  Madam Ng drew two pink lines on the photo at the trial to indicate the position and orientation of P’s body when P was lying on the floor face down.  She indicated that P’s head was pointing outwards and P’s legs were pointing towards the corner of the food-trolley and conveyor belt table.  That means P’s legs had not reached any of the casters of the outer meal-tray trolley and P could not have tripped over the left rear caster which was further away from her (exhibit 1).

24.  Mr Sze said that by January, 2013, P had been on trial for about 4 months for work at the Catering Department of TPH.  Mr Sze considered that it was time to review P’s work and to make further arrangement for her.  Mr Sze and his senior Mr Wong Hon Ming, the Senior Manager and officer in charge of the Catering Department, held a meeting with P on 29 January 2013.  Mr Wong suggested to arrange a working position for P, but P did not respond.  Therefore, the suggestion was not implemented.

25.  Two days later on 31 January 2013 and at the time of the Accident, Mr. Sze was working on his computer in his office.  His office was slightly off the end of the conveyor belt table (exhibit 2).  When he heard Madam Ng’s cry, he immediately came out to see what happened.  He saw P lying on the floor face down.  He immediately asked her how she did she feel.  She said she was very painful and could not move.  Mr Sze then called the ambulance and the ambulance men carried her away in a stretcher to the AED of AHNH for treatment.  Mr Sze estimated at the trial the time lapse between the moment when he heard Madam Ng’s cry and the moment when he was at the scene at 3 to 5 seconds.

26.  Mr Sze, after finishing his work, went to the AED to keep P company until after the doctor had attended to her.  The attending doctor initially suggested that P could return home. But P did not respond to the suggestion and just kept quiet.  The doctor then asked P if she wanted to be hospitalized for observation.  P signified her agreement.

27.  P also showed Mr Sze her knees when in the AED, but Mr Sze could not see any obvious sign of injury.  P did not mention that she had waist pain.

28.  Mr Sze also made a report on the day when the Accident happened (P. 344).  His report said that in that evening at about 5:15 p.m., he heard Madam Ng’s shout.  He immediately went out of his office to the side of the conveyor belt table and saw P lying on the floor face down.  He immediately asked her if she was injured.  She said she was very painful as she had knocked against the meal-tray trolley and fell down.  Mr Sze asked her again if she was injured.  She appeared to have immense pain.  Mr Sze then summoned the ambulance to take her to the AED of AHNH.  Mr Sze later enquired with Madam Ng on how did the Accident happen.  Madam Ng witnessed the whole Accident.  She said P’s legs were just weakened when she turned around.  She lay on the floor without knocking against anything.  Mr Sze then went to the AED at 6:15 pm and kept P company until after she had been attended to by the doctor.

29.  Mr Sze said in re-examination that when he asked P what had happened, P did not give him any answer.  This is not the same as recorded in Mr Sze’s report.  I think his report should be more reliable as it was made on the day of the Accident.

30.  Mr Sze also drew on the photo in exhibit 1 the position of P at the time when he saw her on the floor (P. 149 and exhibit 1).  He drew two green lines on the photo indicating the position and orientation of P’s body when she was lying on the floor face down.  The position indicated by Mr Sze is similar to that indicated by Madam Ng.  He showed that P’s head was pointing outwards and her legs pointing towards the corner of the food-trolley and conveyor belt table.  That means she had not reached any of the casters of the outer meal-tray trolley and she could not have tripped over the left rear caster of that trolley.  Mr Sze added that from what he saw, P had not moved or changed position after she had fallen down.  The meal-tray trolleys had also not been moved. 

Audio evidence

31.  P produced a recording of a short conversation between Madam Ng and another colleague Madam Chung Yuk Fung.  It is a secret recording taken by P of a casual conversation between Madam Ng and Madam Chung. There is a dispute on when and where the recording was taken, but no dispute that the relevant utterances were made by Madam Ng.  I do not consider the time and place for the taking of the recording material.  Madam Ng said the following in the recording:

「鍾︰ 點樣跌低呀？

吳︰ 咦 咁我擰轉面就咁咩成個人趴係到囉

好似游水咁呀

趴係到

嚇得我吖

我啱啱擰轉面見到佢(周鳳儀)行嘛

你知我嗌飛(餐票) 都會擰下  望下㗎嘛」

“Chung: How did she fall down?

Ng: E! Then I turned my face around (and saw) (her) whole person lay down (face down) like this.

Just like swimming.

Lay there face down.

I was so scared.

I just turned my face around (and) saw her walking.

You’d know when I call out the tickets, I would make a turn and take a look.” (free translation)

Video of CCTV at TPH taken on 14 February 2013

32.  There was a CCTV camera installed outside the Staff Room of the Catering Department of TPH.  It captured P who was walking pass its covered area on 14^th February 2013.  The video had only 21 seconds.  It showed P with a rucksack on her back and an umbrella in her left hand.  When she walked out from the Staff Room, she was at the same time stretching her right arm behind to handle something at her back.  She walked with the umbrella in her left hand but was not using it as a walking stick or for support.  At times she lifted the umbrella up in the air. She walked with the rucksack and umbrella in a casual and swift manner without any sign of pain or distress.

The medical reports after the Accident on 31 January 2013

33.  The report of Dr Leung Yuen Hung stated that P attended AHNH on 31 January 2013 and complained of pain of both elbows, low back and both knees after a fall.  Examination showed tenderness at the elbows, low back and both knees.  X-ray of the elbows, low back and knees showed that they were normal.  The diagnosis was injury of back.  P was treated and admitted to the Orthopaedic Ward of AHNH on the same day. 

34.  Dr Esther Chow’s report (P. 456) recorded that P said she sustained injury with her foot being hit by a trolley and developed bilateral knee pain and back pain.  She could not recall the exact mechanism of injury.  Physical examination showed decreased motor power of bilateral lower limb which did not correspond to the myotomes.  There was also diffuse reduction in light touch sensation which was not along dermatomal distribution. The muscle tones and reflexes were normal.  X-ray of bilateral knee and lumbar spine showed that they were unremarkable.  P was treated as back contusion and knee contusion with physiotherapy and analgesics.  She was discharged on 7 February 2013. 

35.  The report of Susan Wan So Han, registered physiotherapist of Byrne, Hickman & Partners said that P had MRI scan on 8 February 2018.  The result showed moderate lumbar spondylosis and a medium size circumferential bulge with slight right sided eccentricity touching bilateral L5 nerve root sheaths and marked spinal sternosis at L4/5; markedly compromising bilateral L4/5 neural formina.  She was diagnosed as having suffered from back injury with multiple level intervertebral disc bulges and referred to physiotherapy.  She complained of numbness in both legs and pain in the lower back.  She was given 8 sessions of physiotherapy from 28 February to 3 April 2013.  She had a gradual improvement during the treatment.  She had the last session on 3 April 2013 because she had minimal pain and numbness at that time.

36.  However, the physiotherapy report by Mr Lee Yin Kin, physiotherapist of the North District Hospital (“NDH”) stated that P complained on at her initial physiotherapy appointment on 5 April 2013 that persistent pain over her low back, with Numeric Pain Rating Scale (NPRS) of 8-9/10 and persistent numbness over her bilateral lower limbs.  She also had morning stiffness at her back.  Her back symptoms were aggravated by lying or sitting, sitting for 10-15 minutes or walking for 15 minutes.  (This is markedly different from what P had told Byrne, Hickman & Partners on 3 April 2013 that she had had minimal pain and numbness at that time.) 

37.  P had 21 sessions of physiotherapy from NDH from 5 April to 4 October 2013.  On assessment on 4 October 2013, P reported that she had persistent pain over her back.  Her back symptoms were aggravated by walking for 20 minutes.  Her subjective overall improvement was 30%.  She was discharged from physiotherapy treatment on 4 October 2013 because the progress had become static. 

The joint medical assessment reports

38.  P was examined by Dr Fu Wai Kee and Dr Chiang Si Chung Arthur on 20 August 2015.  P complained to the doctors that she had low back pain after the Accident.  The pain was aggravated by weather change, carrying weight of more than one pound, deep breathing, prolong walking (of more than 15 minutes), sitting for a few minutes and standing for 2 minutes.  She took regular analgesic for relief.  (There was a surveillance on P conducted on P in March and June 2014 which was a year and two months before the examination.  I will refer to the videos of the surveillance below.  None of the doctors who had treated or assessed P was aware of the surveillance or the videos taken in its course.) 

39.  P also complained of bilateral lower limb paraesthesia and swelling after the Accident.  The numbness was aggravated by walking 15 minutes, walking stairs for 2 minutes and sitting for a few minutes.  The numbness increased if her feet were not stepping on the floor.  Her lower limbs were weak and she needed stick for outdoor activities.  She had difficulty in walking stairs and had to hold handrail in doing so.  She suffered from calf-cramps once every two to three days.  She had no appetite, loss of interest, suicidal ideas and poor memory.  She had urinary incontinence a few times a week especially on sneezing and coughing.   

40.  The examination by the doctors showed that P could not walk unaided.  She held a walking stick in her right hand.  She could not stand on single leg.  She could not perform tip toe/heel walking on both legs.  She could only half squat.  Her limbs were of equal length and had no muscle wasting. 

41.  The doctors considered the MRI scanning of the lumbar spine done on 8 February, 12 July and 7 December 2013.  For the result of the scanning on 8 February 2013, they took special note of the medium-sized circumferential bulge with slight right-sided eccentricity touching bilateral L5 nerve root sheaths and marked spinal stenosis at L4/5; markedly compromising bilateral neural formina.  The doctors considered the scanning on 12 July 2013 compatible with the findings in the report of the MRI on 8 February 2013.  The scanning on 7 December 2013 showed normal alignment, dis prolapse L4/5, thicken ligamentum flavum L4/5 with moderate spinal stenosis in L4/5 and other disc levels normal. 

42.  The doctors also watched the short video captured by the CCTV showing P walking pass the entrance of the Staff Room of the Catering Department of TPH on 14 February 2013.  They observed that P was holding an umbrella but could walk unaided.  Dr Chiang further opined that P’s good walking capacity as shown in the video suggested that the injury sustained on 31 January 2013 was likely to be mild. 

43.  Dr Fu opined that P’s clinical picture was compatible with the diagnosis of soft injury at the back and that it should be due to the Accident.  Dr Fu also opined that some of P’s symptoms could not be completely explained on clinical ground.  He believed that some of P’s symptoms should be caused by her psychiatric problem as psychiatric patients are prone to have abnormal response to pain. 

44.  Dr Chiang referred to the medical report of P on her admission to AHNH on 31 January 2013 which said that P’s decrease in motor power of lower limbs did not correspond to the myotomes and diffuse reduction in light touch sensation was not along dematomal distribution.  Dr Chiang opined that the decrease in motor power and sensation were not anatomically explainable.  With the presence of normal muscle tone and reflexes, these diffuse findings might not have been actually present.  But he accepted that if the Accident did happen as described by P, the diagnosis was consistent with soft tissue injury of the low back.

45.  Dr Chiang also opined that the MRI findings were consistent with moderate degree of degenerative changes that required a long time to develop and should be present before the Accident.  Dr Fu did not express any view on this.

46.  Regarding the degenerative changes in the radiological studies of P, the doctors agreed that they were pre-existing and could not be caused by one trauma.  Dr Chiang also opined that from the CCTV video taken in February 2013, P’s good walking capacity suggested that the injury sustained in the Accident was likely to be mild. 

47.  Dr Chiang also referred to the recorded findings all along and noted that the early stage straight leg raising test had remained normal.  There were complaints of diffuse weakness and decrease in sensation in lower limbs which were not anatomically explainable.  The normal straight leg raising test to some extent suggested a reasonable condition of the low back and would not have supported P’s complaints of diffuse weakness and decrease in sensation in her lower limbs.  Taking a combined view of the unexplainable weakness and decrease in sensation of the lower limbs, wide discrepancy between sitting and supine lying straight leg raising test, unexplainable limitation in some of the range of movement of the low back, one of the simulation tests being positive, and that objective examination findings did not support the need for walking stick to walk, symptom magnification was likely to be present.

48.  Dr Chiang further opined that for the natural course of soft tissue injury of the low back with the absence of objective abnormal physical signs in the examination at the earlier stage after the injury, good recovery could be acquired within a few months after the injury.  He also opined that physically, P’s low back condition had likely acquired a satisfactory physical status at the early stage after the injury.  Dr Chiang also opined a likelihood that P’s significant complaints at the examination and at the early stage after the Accident arose from symptom magnification which suggested that her low back was likely to be physically in a satisfactory status soon after the Accident and at the examination. 

49.  Dr Chiang opined that orthopaedically, basing on the estimated actual underlying physical condition of P’s low back, she should be physically able to return to perform prolonged level ground walking, standing, sitting, going up and downstairs, and in performing some on and off carrying of weights.  She should not require the use of a stick in assisting her to walk.

50.  Dr Fu only opined that P will have some difficulty in long period of walking but did not express any contrary opinion to those of Dr Chiang.

Video of surveillance conducted on 10 March, 17 March and 18 June 2014

51.  D engaged a surveillance firm to put P under surveillance on several days.  The firm produced a video of its surveillance on P on 10 March, 17 March and 18 June 2014. 

52.  The video taken on 10 March 2018 showed P walking in the company of a man at some time passed 8 a.m. P had no walking aid.  Her left hand clasped with the man’s right hand.  She had an empty shopping bag which was at times held in their clasped hands and at times held in her right hand.  They walked smoothly and fairly swiftly along the pedestrian walkway and down some stairs.  When walking down the stairs, they still clasped their hands and walked casually and smoothly without holding onto the railing on the side or paying particular attention to the steps.  They went to a fresh food market and P examined some vegetables.  They then went to a restaurant for tea.  After leaving the restaurant, they walked down some stairs again.  This time, P’s right hand clasped with the man’s left hand.  She at times led the way down and did not require the man’s support at all.  She also did not hold onto the railing on the side.  The couple then bought a long black sugar cane and returned home.  Throughout the surveillance, P walked smoothly and fairly swiftly with the man in clasped hands.  She showed no sign of pain or distress.  Save in clasped hands with the man, she had not held onto any support at all.

53.  The video taken on 17 March 2018 is a short one.  It showed P walking slowly and casually along a corridor.  She appeared to be looking at something she held in her right hand. She had an umbrella in her left hand which she lifted off the ground.  After a short while, she changed the umbrella to her right hand and used it as a walking stick in a swinging fashion.  She did not appear to be using it for support.  She showed no sign of pain or distress.

54.  The video taken on 18 June 2014 began to feature P at 7:13 hours.  She carried a bag of some weight on her left shoulder and an umbrella in her right hand.  She used the umbrella as a walking stick to enhance her walking up a slope.  She walked smoothly and fairly swiftly.  She lifted the umbrella off the ground when on level ground.  She went to the Po Wing Road Playground where people were doing physical exercise.  She stretched her arms and did some warming up.  She moved to another location of the playground and started her physical exercise at 7:26:50 hours. 

55.  Her first exercise was to stand on the ground on her right leg alone.  She then raised her left leg, held it straight and rested it on a horizontal metal rod fixed at a level just above her neck.  She also used her left hand to hold onto the metal rod to maintain her posture.  Her back, waist and leg muscles were tightened.  She remained in this posture for 10 seconds.  She then changed legs but she could only raise her right leg to a metal rod fixed at about 1 foot below the other rod that she used with her left leg.  She also used her right hand to keep her right leg in place.  She maintained the posture for 10 to 12 seconds.  She then leant on a metal pole for a short rest.  She then grabbed a horizontal metal bar with both hands and dangled her body and legs in the air for a few seconds.  After a short rest, she repeated the exercise for another 10 seconds.  After a video break of 20 minutes, she was seen again standing with her legs straight, her upper body bent forwards and downwards and her hands touching her feet.  She swivelled around in this posture with straight legs and maintained the posture for about 15 seconds.  After a while, she did some stretching.  She then practised a Qi Gong that looked similar to Tai Chi at 8:13:51 hours.  The Qi Gong involved slow body motions including the bending of the upper body forward and backward, bending of knees and half squatting.  She was last seen doing this Qi Gong at 8:28:44 hours.  The investigator’s report, which was admitted without challenge, stated that she left the playground at 8:57 hours.  Hence, she was in the playground from 7:26:50 to 8:57 hours (1 ½ hours).  There are breaks in the video.  But she showed no pain or distress in all segments of the video. She did the physical exercise and Qi Gong intently.

56.  She then went shopping with a friend and carried her bag of some weight on her right shoulder.  She walked down a slope with her bag on her right shoulder and umbrella in her left hand but lifted off the ground.  She walked smoothly and with her eyes and hands attending to the things in her bag and did not even watch her way.  She was obviously not physically hampered in walking and familiar with her way.  She showed no sign of pain or distress.

57.  She left home again at 9:42:52 hours with a shopping trolley.  She went to a supermarket and then a fast-food restaurant. She then wandered in the outdoor for a while and returned home.  Throughout her journey, she showed no sign of pain or distress.  She did not appear to be physically hampered in all her body motions. 

58.  P was shown these videos in cross-examination. She admitted that the person under surveillance was her, but maintained that she was suffering from serious pain.

Analysis and decision on whether P had met with the Accident

59.  P said when she turned round and walked towards the food-trolley, she tripped over the left rear protruded caster of a meal-tray trolley and fell face down.  Her elbows, knees and low back thus sustained tenderness.  Her waist and lower half of her body were numb, painful and lack of strength. 

60.  Madam Ng’s evidence is that P did not trip and fall, but she, after being called by a colleague to pull a food-trolley over, turned round, started to walk and then suddenly bent her left leg, knelt on her right knee, spread her arms forward and fell down slowly on the floor.  She in the course of the motion did not come into contact with any object.

61.  P in her statement dated 14 February 2013 said that she had tripped over the caster (or its protruded lock) of a meal-tray trolley which was behind her and she fell and injured.  But according to the Mr Sze’s statement dated 31 January 2013, P had said to him immediately after the Accident that she had knocked against the meal-tray trolley and fell down.  She did not mention her tripping over the caster of a trolley. 

62.  The report of Dr Esther Chow of AHNH recorded that P had said that she sustained injury because her foot was hit by a trolley and she developed bilateral knee pain and back pain.  P further said that she could not recall the exact mechanism of injury.  If she had tripped over the caster of a trolley, I cannot see why she did not say so to Mr Sze or Dr Chow. 

63.  Dr Esther Chow’s report recorded that P’s decreased motor power of bilateral lower limb did not correspond to the myotomes and her diffuse reduction in light touch sensation was not along dermatomal distribution.  Dr Chiang thus opined in the joint assessment report that the decrease in motor power and sensation were not anatomically explainable.  Since there was the presence of normal muscle tone and reflexes, Dr Chiang further opined that these diffuse findings might not have been actually present.  Dr Fu did not disagree with Dr Chiang.  Dr Fu in fact did not say a word on this matter.

64.  I accept Dr Chiang’s opinion.  Since there are proper grounds to suggest that her decreased motor power of bilateral lower limb and her diffuse reduction in light touch sensation could be faked, her version of the Accident could also be faked. 

65.  P’s counsel Mr Li submitted that a strong piece of evidence in P’s favour is the joint opinion of Dr Chiang and Dr Fu that if the Accident had happened as alleged by P, then that was consistent with the diagnosis of soft tissue injury of the low back.  But it is important to note that Dr Chiang was doubting the genuineness of the Accident as he doubted whether the decrease in motor power and sensation as alleged by P were actually present.  Dr Chiang also opined that the objective examination findings did not support the need for use of walking stick to walk and symptom magnification was likely to be present.  Hence, Dr Chiang did not support P on the happening of the Accident.  I also note that Dr Chow had expressly referred in her report to the problems of P’s alleged decrease in motor power and sensation, but Dr Fu did not express any opinion on them. Hence, Dr Fu’s opinion is not as reliable as Dr Chiang’s.  For these reasons, I do not consider it right to take the opinion of Dr Chiang and Dr Fu referred above as strong support to P’s case of the Accident.  

66.  The next question is the relative positions of P after she had fallen and the meal-tray trolley.  According to Mr Sze’s statement and Dr Chow’s report, P did not even refer to the caster of the trolley when she described the Accident on 31 January 2013.  When she made a statement on it, she referred to the trolley which was behind her.  But her position when lying on the floor as marked by Mr Sze and Madam Ng shows that she had not walked to the location of the trolley in question and therefore could not have tripped over any caster of that trolley.  I also note that the evidence of Mr Sze and Madam Ng corroborates one another.  Madam Ng also had the advantage of having a full view of the whole person of P.  I do not accept P’s argument that Madam Ng’s view of her was blocked by the two meal-tray trolleys.  These two trolleys were on Madam Ng’s immediate right-hand side and could not have blocked her view of P who was on Madam Ng’s right but to the front.  Madam Ng thus could tell how P had fallen down, whether she had tripped over any caster of any trolley and the location that she was at after her fall.

67.  Regarding the audio recording of what Madam Ng had relayed to another colleague on how P had fallen down, I do not accept Mr Li’s submissions that the recording showed that Madam Ng only saw P after P had fallen on the ground but not how she fell.  The recording in fact shows that Madam Ng had said that when she turned her face around, she saw P walking.  That must be before P’s fall.  The earlier part of the recording also showed that Madam Ng had said that P was just like swimming. This is consistent with how she described P’s slow and gradual fall in her evidence.  She said P suddenly bent her left leg, knelt down on her right knee, spread her arms forward and fell down slowly on the floor with her face down.  This is also consistent with what Madam Ng had said in her report to TPH.  

68.  Mr Li also submitted that D’s version of the event was inconceivable.  He submitted that there was no doubt that P had encountered the Accident on 31 January 2013 and injured her low back and her description of the Accident was entirely consistent with the medical diagnosis.  However, this submission overlooks Dr Chow’s observation that P’s decreased motor power of bilateral lower limb did not correspond to the myotomes and her diffuse reduction in light touch sensation was not along dermatomal distribution and Dr Chiang’s opinion thereon.  Dr Chow made the diagnosis obviously because of her doubt about the genuineness of P’s complaints and Dr Chiang indeed cast such doubt by reason of Dr Chow’s diagnosis.

69.  Furthermore, P’s complaints right after the Accident was that her elbows, knees and low back had sustained tenderness.  Her waist and lower half of her body were numb, painful and lack of strength.  She wanted to climb up but could not be seated.  She needed the help of her colleagues to get up.  But the video captured by the CCTV on 14 February 2013 showed that she had no problem in walking.  Dr Chiang and Dr Fu in their joint report opined that the video on 14 February showed that she was holding an umbrella but could walk unaided.  Dr Chiang further opined that her good walking capacity suggested that the injury sustained on 31 January 2013 was likely to be mild.  Dr Chiang’s opinion contradicted P’s grave complaints of pain and suffering.  P’s description of her injury and the effects thereof were thus inconsistent with the medical diagnosis.

70.  I now come to the surveillance videos taken on 10 March, 17 March and 18 June 2014.  Mr Li has not said a word about these videos on P in his opening or closing submissions.

71.  P’s witness statement is dated 13 September 2016.  Despite the various treatments she received since early 2013, she said in the statement that she still had various body problems.  They include pain, stiffness and lack of strength in her waist muscle.  She needed pain killers or hot pad when the problem got serious.  The waist pain limited her ability to turn and prevented her from bending her waist.  The back pain affected her sleep.  She needed sleeping pills to go to sleep.  She could not carry weight for over 10 seconds.  After her knees were injured, they would be painful upon weight bearing.  She needed support when walking or going up or down stairs.  Her legs would be painful after standing for over 5 to 10 minutes.

72.  P was examined by Dr Fu and Dr Chiang on 20 August 2015.  That was long after the surveillance conducted on her in March and June 2014.  She complained to the doctors of low back pain which was aggravated by carrying weight of more than one pound, deep breathing, prolong walking (of more than 15 minutes), sitting for a few minutes and standing for 2 minutes.  She took regular analgesic for relief.  She had bilateral lower limb paraesthesia and swelling after the Accident.  The numbness was aggravated by walking 15 minutes, walking stairs for 2 minutes and sitting for a few minutes.  The numbness increased if her feet were not stepping on the floor.  Her lower limbs were weak and she needed stick for outdoor activities.  She had difficulty in walking stairs and had to hold handrail in doing so.

73.  The physical examination by the doctors showed that P could not walk unaided.  She held a walking stick in her right hand. She could not stand on single leg.  She could not perform tip toe/heel walking on both legs.  She could only half squat.  Her limbs were of equal length and had no muscle wasting.

74.  However, the surveillance videos show that P could walk unaided along the pedestrian walkway and down some stairs.  She did so smoothly and fairly swiftly.  She also did not have to hold onto any railing when walking down stairs.  She went to restaurant for tea, to the market to choose and buy food, wandered here and there.  She just led a normal life and without displaying any sign that she was hampered in any of her activities by any of the problems she alleged to the doctors or in her witness statement. 

75.  Regarding her specific complaints about the pain and weakness in her waist, back, knees and legs, the video on 18 June 2014 shows that she could do exercise that involved strenuous exertions of her waist, back, arms and legs.  She could stand on either leg with the other leg held up straight and rested on a metal bar.  She could stand on straight legs and bend her waist and upper body forward and downward and swivel around.  That required strenuous exertions of her waist and back.  Such motion and posture betrayed her on her complaints of pain in her waist and back and weakness in her waist.  Her knees also worked in harmony with the rest of her body in the physical exercise and Qi Gong.  Her intent practise of physical exercise and Qi Gong showed that she was in good physical health.  She displayed no sign of pain or distress whatsoever.  Her stay in the playground from for 1½ hours (from 7:26:50 to 8:57 hours) also casts doubt on her complaint about problems after prolong walking for about 15 minutes.  The video shows her to be in good physical health and was not troubled by any of the complaints she alleged.

76.  I refer to the credibility of the witnesses.  I agree with Ms Lau, counsel for D that both Mr Sze and Madam Ng are honest and truthful witnesses.  They were prompt and straightforward in answering questions. Their evidence is consistent with their reports of the Accident to TPH and Dr Chow’s diagnosis on 31 January 2013 which doubted P’s complaints.  P on the other hand did not perform very well in the witness box.  She was not a prompt or forthcoming witness.  She avoided questions.  I therefore accept the evidence of both Mr Sze and Madam Ng and reject the evidence of P in so far as it is in conflict that of Mr Sze and Madam Ng.

77.  The surveillance videos show that P has grossly exaggerated and lied about her physical disabilities in her witness statement, to the doctors who examined her and the doctors who assessed her.  The evidence of Mr Sze and Madam Ng on how P fell and her position after the fall, P’s failure to describe to Mr Sze or Doctor Chow that she had tripped over a caster of a meal-tray trolley, and the medical opinion of Dr Chiang all go to show that P had lied about the happening of the Accident.  Such evidence coupled with the video captured on 14 February 2013 and the surveillance videos all go to show that P, after lying about the happening of the Accident, continued to lie about the alleged injuries and disabilities she suffered as a result of the Accident.  She continued with the lies in her assessment by Dr Chiang and Dr Fu, in her witness statement and her evidence in court. 

78.  I find on a balance of probability that P had faked the so-called Accident.  She just fell onto the ground in the way described by Madam Ng and the fall was well in her control.  On this finding, I dismiss P’s claim.

Alternative finding on liability

79.  In case I am wrong in finding against P on the happening of the Accident and in case the Accident had indeed happened in the way as described by P, I would consider whether it happened because of D’s negligence and, if so, whether P was liable for contributory negligence. 

80.  Madam Ng’s evidence is that the two meal-tray trolleys were parked against one another and the inner one was right next to the conveyor belt table.  P instead said that the inner trolley was not adjacent to the conveyor belt table but was further away.  I accept Madam Ng’s evidence as the two trolleys had to be positioned right next to the conveyor belt table so that Madam Ng could take the meal-trays from the trolleys in the course of her work.

81.  Regarding the width of the area where P was working, P said that it was only 1½ feet wide, but Mr Sze and Madam Ng both said that it was about 4 feet wide.  I accept the evidence of Mr Sze and Madam Ng as a width of 1 ½ feet is not wide enough even for P to get into. 

82.  P pleaded that at the material time, she was wearing sensible shoes provided by D.  P did not plead that the floor was wet or slippery at that time.  She just said in her report to TPH dated 14 February 2013 (“P. 138”) that after she had fallen on the floor, her clothes had become soaked because a lot of water had flowed from the refrigerator to the floor.  But this was not even mentioned in her witness statement.  I will therefore ignore this allegation.

83.  P should be familiar with the trolleys as she had worked in the Catering Department since 25 September 2012.  She has not pleaded that D had failed to provide her with adequate training on how to use the trolleys.  Madam Ng also said in cross-examination that she had been taught by her senior Mr Wong on how to push the trolleys and lock up their casters after stopping so that they would not slip.

84.  The meal-tray trolleys had handle bars installed at the rear for pushing purpose.  The bar stretched out for 68 mm from the back of the trolley and was at waist level.  The handle bar thus served as an obstacle preventing people from bumping onto the rear of the trolley.  The caster when unlocked could protrude outward for 56 mm from the rear edge of the trolley. 

85.  P did not allege that the trolley had slipped or moved towards her because it was unlocked.  She just pleaded in §2 of the statement of claim that “she tripped over a caster of a tray trolley and caused her lost balance and fell onto the floor and sustained injury of back”.  Her witness statement said the same thing.  Hence, her alleged cause of fall was not the caster being unlocked, but the caster or its lock being protruded from the side of the trolley to the extent of 56 mm.

86.  If P should have tripped over the rear left caster of the trolley in question, she had to stretch her right leg to the rear of the meal-tray trolley underneath the handle bar in order to reach and trip over the caster.  With a working space of 4 feet wide, I can see no reason why she had to walk so close to the trolley and to stretch her right foot even closer to its bottom so as to trip over the caster. 

87.  I also refer to the evidence of Madam Ng that the caster had to be exposed or protruded so that workers could lock and unlock them with their feet.  If the caster should be hidden completely underneath the trolley, workers would have to use some other implement to lock and unlock it. That is inconvenient to the workers.

88.  The Accident as described by P did not happen because the casters were unlocked.  It happened because P had walked too close to the bottom of the trolley or its left rear caster so that her right leg tripped over the caster.  The caster was not in or blocking her way.  There was the push handle that guarded the rear of the trolley.  P had no reason or need to walk so close to the bottom of the trolley or the left rear caster so that her right leg could trip over the caster.  If P should have exercised some care in her walking, she would have watched her way and not walked so close to the trolley and not tripped over the caster.  The caster was in a normal position though unlocked.  There is no suggestion that the caster when in such a position was dangerous per se.  Whether it was locked or unlocked, it did not pose a risk to P’s safety as it was not in P’s way.  It was not a case that the caster was unlocked resulting in the slipping of the trolley which caused the Accident.  In the circumstances, I hold that if the Accident should have happened as described by P, then it happened not because of the negligence or breach of common duty of care or breach of contract by D but by the negligence of P.  For this reason, I also dismiss P’s claim.

Joint psychiatric assessment report

89.  P was jointly examined by Dr C. K. Wong and Dr Law Wun Tong on 2 December 2015.  Dr Wong and Dr Law were not shown the surveillance videos.

90.  Dr Law opined that P suffered from a mild adjustment disorder with depressed mood.  Clinically she was not overtly anxious or depressed.  She displayed a normal reactive effect during the interview.   She suffered from a pre-existing mood disorder that was reactive to identifiable stressors.  Her mood changed after the Accident.  Relieving her from work in TPH removed one major stressor but the physical back pain after the accident contributed to her bad mood.  

91.  Dr Law also opined that P had reached maximal medical improvement.  The prognosis of the adjustment disorder was deemed good as the physical symptoms being the major stressors were mild.  Once this litigation is closed, her mood will improve further.

92.  Dr Law suggested sick leave of up to three months after the Accident was reasonable and that it was justified for P to have 6 more treatment sessions.  P was mentally fit to perform all activities of daily living and housework, and there is no need to avoid any activities from a psychiatric point of view.

93.  Dr Wong agreed with Dr Law that P was suffering from adjustment disorder with depressed mood and that she was suffering from mild mental symptoms.  Dr Wong also agreed that sick leave for 3 months from the Accident was reasonable.

94.  P was recommended by Dr Wong to continue to seek psychiatric treatment for up to 6 months after the closure of litigation.

Quantum if D should be liable to P

95.  In the event that I am wrong on my finding on liability and D should be liable to P for her injuries resulting from the Accident, I assess the quantum of damages as follows.

PSLA

96.  For PSLA, Mr Li referred to the diagnosis of P’s injury as tenderness of back.  MRI reveals multi-level degeneration of the lumbar spine, lumbar spondylosis and spinal stenosis. 

97.  He referred to three cases.  In Lam Chun Oi v Asat Limited, HCPI 115/2008 (unrep., 29 October 2009; per Master de Souza), the plaintiff moved trolleys in the factory. She tripped and fell on her buttocks and hit her head.  The plaintiff was 48 when injured and 51 at the hearing.  The surgeons opined that there was tenderness over her low back and left paraspinal area.  X-ray revealed lumbar spondylosis.  MRI of the lumbar spine revealed mild lumbar spondylosis with mild spinal stenosis at L3/4 and L4/5.  She was awarded HK$400,000 for PSLA.

98.  In Li Ping Kwong v Hong Kong International Terminals Ltd, HCPI 203/2012 (unrep., 6 August 2014; per Master S Lo), the plaintiff was thrown upwards by a container and fell.  He suffered pain over neck and back.  Examination revealed tenderness over his back.  He was diagnosed to have suffered from static chronic neck pain and lumbar spondylosis with back pain.  He was awarded HK$450,000 for PSLA.

99.  In Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited, HCPI 931/2011(unrep., 17 July 2015; per Bharwaney J), the plaintiff slipped and fell from an empty container laden on his trailer.  He was 45 at the accident and 52 at judgment.  He complained of back sprain.  Physical examination revealed tenderness over lower lumbar back and left sacroiliac region.  MRI also showed lumbar spondylosis and minimal diffuse disc bulge at L4/5 level.  He was awarded HK$500,000 for PSLA.

100.  After reviewing these cases, Mr Li submitted that P should be given HK$400,000 to HK$500,000 for PSLA.

101.  However, Dr Chiang opined in the joint report that the MRI findings were consistent with moderate degree of degenerative changes that required a long time to develop and should be present before the Accident.  Dr Fu did not express any view on this.  The two doctors also agreed that the degenerative changes in the radiological studies of P were pre-existing and could not be caused by one trauma.  I accept the evidence of Dr Chiang and hold that the multi-level degeneration of the lumbar spine, lumbar spondylosis and spinal stenosis suffered by P as shown in the MRI were present before the Accident and no PSLA should be given for these problems. 

102.  Ms Lau instead submitted that P’s soft tissue injury to her back was not serious.  P also had pre-existing back condition. Dr Chiang had opined that based on P’s pre-existing degenerative condition of her lower back and the limitation of her other pre-existing conditions, there was a likelihood that some other events or natural progression would have brought about P’s present status within 1 or 2 years even without the Accident.  The stress of the Accident had also caused P to suffer from adjustment disorder.  But P was not in complete remission of depressive mood when the Accident happened.  Hence, the award of PSLA should reflect the pre-existing conditions.  Ms Lau suggested HK$100,000 for this award.

103.  Ms Lau relied on four cases.  In Chan Chung Keung v Greenroll Limited trading as Conrad Hong Kong, HCPI 275/2005 (20 December 2005), the plaintiff was employed as a bar captain.  He slipped on the wet floor and landed on his bottom.  He sustained persistent low back pain, left wrist pain and a numb left leg and thigh which got worse at night.  MRI done subsequently showed that he suffered degeneration of L4/5 disc with no significant nerve root compression.  The Court held that the plaintiff suffered a soft tissue injury which exacerbated a pre-existing weakness caused by the natural ageing process.  Deputy High Court Judge Carlson, having factored into it an element of exaggeration of symptoms by the plaintiff, awarded $180,000 as general damages.

104.  In Ahmed Masood v Chung Kau Engineering Company Limited, DCPI 517/2003 (28 January 2005), the plaintiff was employed as a casual labourer at a construction site.  He slipped and fell while carrying 5 metal grout pipes.  He suffered soft tissue injury to his back which caused him persistent pain.  He also suffered residual stiffness to his back and right leg and from attacks of numbness to his right leg.  HH Judge Marlene Ng awarded him $130,000 as general damages.

105.  In Yeung Sze Hoi v New Trade Good Food Centre Limited, HCPI 568/2004, 22 April 2005, the plaintiff was a junior cook who injured his back when he tried to move a box of preserved vegetables.  His left side became weak and he fell onto the floor on his left side.  He was found to have suffered a sprained back complicated by a prolapsed disc at L3/4 with displacement of L4 root on the left side.  Apart from persistent back pain, he also suffered low mood, increased irritability, decreased energy level and poor volition.  He developed negative cognition like a sense of worthlessness and helplessness with fleeting suicidal ideas.  Nguyen J awarded him $250,000 as general damages.

106.  In Tsang Yip Kwong v Ng Kwong Yui trading as Ng Yiu Kee Transportation Co, HCPI 1186 of 2004 (4 January 2006), the plaintiff was a labourer who sprained his neck while unloading goods from a container.  He suffered pre-existing degenerative changes to his neck and shoulder.  Deputy High Court Judge Carlson awarded him a sum of $180,000 as general damages.

107.  In the light of P’s health conditions as shown in the video taken by the CCTV on 14 February 2013 and the surveillance videos taken in March and June 2014, I find that P’s injury to her back was not serious.  P also had pre-existing back condition.  I also refer to the joint psychiatric assessment report which suggested that suggested sick leave for P of up to three months after the Accident was reasonable and that P was mentally fit to perform all activities of daily living and housework.  If D should be liable to P, I would HK$150,000 for this award.

Pre-trial loss of earnings and MPF contributions

108.  There is no dispute that at the time of the Accident P was working as Workman II at monthly wages of $12,065.  Mr Li referred to the medical report by Dr Esther Chow of the Department of Orthopaedics & Traumatology at AHNH and the opinion of Dr Fu in the joint assessment reports that P cannot return to her previous work duties.  He also referred to P’s Work Capacity Evaluation dated 4 July 2014 which showed that she could not return to her previous job due to the physical demands required.  The various Medical Board Reports also recommended sick leave.  The sick leave up to the date of trial is supported by medical certificates.  Hence, the total amount of pre-trial loss of earnings should be (HK$12,065.00 / 30 days) x 1,925 x 1.05 = HK$812,879.38.

109.  Ms Lau submitted that P’s claim is highly excessive and unreasonable.  She referred to the opinion of Dr Arthur Chiang in the joint assessment report that the time required for recovery of her soft tissue injury is about 3 to 4 months.  She also referred to the psychiatric opinions of the Dr Law Wun Tong and Dr Wong Chung Kwong that a sick leave period of 3 months is adequate for her to return to her work.  Hence, if the Accident did happen as P alleged, P should have been able to resume her pre-injury work by the end of the fourth month.  The amount payable under this head should therefore be HK$12,065 x 4 x 1.05 = HK$50,673.

110.  In the light of P’s ability to work and exercise as shown in the video taken by the CCTV on 14 February 2013 and the surveillance videos taken in March and June 2014, I agree with Ms Lau.  If the Accident had indeed happened, I would award HK$50,673 to P under this head.

Post-trial loss of earning

111.  P was 57 at the time of trial.  Mr Li submitted that but for the Accident P would be able to work at least until 65.  However, she cannot return to her work anymore.  She can only perform sedentary duties like that of a building attendant.  She claims a multiplier of 7.60. 

112.  The average monthly wage of a female building attendant in the Quarterly Report of Wage and Payroll Statistics in the 4^th Quarter of 2017 is HK$11,900.00.  P’s loss under this head would be (HK$12,064.85 – HK$11,900.00) x 12 x 7.60 x 1.05 = HK$15,786.04.

113.  Ms Lau however submitted that there is no concrete evidence showing that P would not be able to resume work as a Workman II for D.  Any loss of future earnings, if any, is not attributable to the soft tissue injury P sustained in the Accident.  Ms Lau also referred to the opinions of Dr Arthur Chiang, Dr Wong Chung Kwong and Dr Law Wun Tong which all said that P is capable of resuming her work before the Accident and that this claim should be dismissed. 

114.  I again refer to the video taken on 14 February 2013 and the surveillance videos taken in March and June 2014 and agree with Ms Lau that this claim should be dismissed.

Loss of earning capacity

115.  Mr Li referred to the joint assessment reports and submitted that P could not return to her previous job.  Hence, she suffered loss of earning capacity. 

116.  Ms Lau instead submitted that there is no evidence that P would not be able to discharge her pre-accident work as Workman II (as modified and regarded as light duty work) or that she is under a real risk of being dismissed due to the injuries she sustained in the Accident.   

117.  I again refer to the videos taken on 14 February 2013 and March and June 2014 and hold that P can resume her pre-Accident job as Workman II and dismiss this claim.

Future medical and travelling expenses

118.  Mr Li referred to the Dr Fu’s orthopaedic opinion in the joint assessment report that P’s impairment would likely persist and she would likely to have on and off back pain requiring orthopaedic treatment on a need-to basis.  Mr Li submitted that a reasonable estimate would be 5 more sessions of physiotherapy at HK$5,000 (being 5 sessions of physiotherapy in the private sector).

119.  Mr Li also referred to the psychiatric opinion of Dr Wong that P will require 6 more months of psychiatric treatment after this litigation in the psychiatric clinic of NDH which would cost HK$1,000.

120.  The total amount of damages under this head should be HK$6,000.

121.  Ms Lau referred to the opinion of Dr Law in the joint psychiatric assessment report and agreed that six more sessions of psychiatric treatment at HK$600 would be reasonable. 

122.  For reasons given above, I do not consider that P would require any more orthopaedic treatment or physiotherapy.  For the psychiatric treatment, I agree that HK$1,500 should be awarded for the fee of NDH and travelling expenses.

Special damages

123.  Mr Li referred to the medical receipts produced in the trial bundle which covered treatments at Dr Fung Kam Shing’s clinic, MRI at St Teresa’s Hospital, physiotherapy at Byrne Hickman & Partners, Chinese medicine practitioners, Hong Kong Federation of Trade Unions (Chinese Medicine), Chinese medicine, bonesetters and massages, and tonic food.  They add up to HK$37,207.

124.  D is willing to concede to a sum of HK$26,958.60 for this claim. 

125.  In the light of the nature and extent of injury suffered by P as opined by Dr Chiang, Dr Law and Dr Wong, I do not consider it reasonable or necessary for her to have obtained so many different types or treatment.  I agree with D and award HK$26,958.60 for this claim.

Deduction of sum already paid to P

126.  Ms Lau further submitted that P had been paid HK$88,152.49 since the Accident and this sum should be deducted from the award to P.  Mr Li did not oppose the proposed deduction.  I therefore deduct this sum from the award to be made to P.    

Summary of damages

127.  Subject to the issue of liability, the amount of damages payable is assessed as follows:

(1) PSLA	HK$150,000.00
(2) Pre-trial Loss of Earnings	HK$50,673.00
(3) Future Medical Expenses	HK$1,500.00
(4) Special Damages	HK$ 26,958.60
Sub-total	HK$229,131.60
Less salary and other allowance received	- HK$88,152.49
Total:	HK$140,979.11

128.  Interest at 2% per annum is payable for general damages from the date of Writ to the date of judgment.  There is no interest on pre-trial loss of earnings at HK$50,673.00 as this sum is overtopped by the salary and allowance of HK$88,152.49 that P had already received from D after the Accident and during her sick leave.  Interest on special damages is at ½ of the current judgment rate from the Accident to the date hereof. 

Judgment

129.  Since I have found against P on liability, I dismiss the action. 

130.  I also make a costs order nisi thatP do pay D the costs of this action to be taxed and P’s own costs be taxed in accordance with the Legal Aid Regulations.